The Issue The issues in this case are whether Respondent committed sexual misconduct as charged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department of Health is the state agency charged with regulating the practice of chiropractic medicine within the State of Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. At all times material to this matter, Respondent was licensed as a chiropractic physician in the State of Florida, having been issued license number CH 11126 on February 17, 2014. Respondent, for all times material to this case, worked at and owned Wright Choice Chiropractic, located at 70 East 1st Street, Corning, New York 14830. Respondent and his wife, Tara Wright, D.C., were the only chiropractors who practiced at Wright Choice Chiropractic. W.H. presented to Wright Choice Chiropractic in early May 2016, seeking to enroll in a nutritional weight-loss program offered by Respondent. On May 11, 2016, W.H. went to Wright Choice Chiropractic to learn about Respondent’s weight-loss program. She was wearing shorts and a t-shirt. W.H. enrolled in the weight-loss program, and Respondent took W.H.’s body measurements. This was the first time W.H. and Respondent met. The appointment took no longer than 30 minutes. Thereafter, W.H. called Wright Choice Chiropractic to inquire about receiving chiropractic treatment to address low back and hip pain. W.H. was assigned to Respondent for a chiropractic appointment. May 19th Office Visit On May 19, 2016, W.H. went to Wright Choice Chiropractic, at approximately 4:30 p.m., to receive chiropractic treatment for her complaints of low back and hip pain. Respondent and Dr. Tara Wright were at the front desk when W.H. arrived. Respondent examined W.H. in the examination room. In the examination room, Respondent told Patient W.H. that she was “beautiful,” asked her if she was single, and asked her if she “ever went out?” W.H. replied that she does not usually go out because she has kids. At the time, W.H. thought Respondent’s comments and questions about her personal life were awkward, but she was not offended. Respondent's findings included low back pain that was reproduced with pressure, left hip pain, some misalignment, and muscle ache or muscle pain. Respondent recommended soft tissue work with the Graston technique and a chiropractic adjustment. The Graston technique utilizes stainless steel tools to apply pressure to joints and tissues to promote healing by causing a micro- trauma or an inflammatory response. W.H. consented to the recommended procedures. Respondent led W.H. to the treatment room and gave her a gown to change into. Respondent left the room and Patient W.H. changed into the gown, leaving on her underwear and bra. The gown was tied in the back. Respondent returned to the examination room after W.H. changed into the gown. W.H. testified that she heard Respondent close the door but she could not see whether it was, in fact, closed. Other witnesses testified, credibly, that the door remained slightly ajar, and that testimony is accepted here over that of W.H., because she could not see whether the door was open or closed. Although the door was ajar, the patient on the table was not visible to someone standing in the hallway, outside Respondent’s treatment room. Respondent placed W.H. on a flexion-distraction chiropractic table. The table included Velcro straps for the patient’s ankles, which were applied to W.H. without objection. Respondent then performed the Graston technique, using a series of stainless steel tools (that resemble a handlebar and large butter knife) to glide over the muscles from mid-back to lower back, at the top part of the glutes. Respondent applied grapeseed oil to W.H.’s skin to help the tools glide over the skin. Respondent stood at the side of the table when performing the Graston technique on W.H. The procedure was performed on both sides of W.H.’s back. Respondent told W.H. to expect bruising on her back in the area where the Graston tools had been applied. Respondent performed a chiropractic adjustment on W.H. using a Gonstead side posture adjustment and a Thompson Drop. This entailed popping up and dropping a section of the table to adjust the sacrum. After the treatments were finished, W.H. paid her co-pay and scheduled a follow-up appointment for May 24, 2016, before leaving the office. May 24th Office Visit On May 24, 2016, W.H. returned to Wright Choice Chiropractic at approximately 4:30 p.m., for a follow-up chiropractic appointment. She was greeted by Dr. Tara Wright and Respondent at the front desk. No one else was present in the office at that time. W.H. changed into a gown, as she had done during her last visit, outside of Respondent’s presence. The gown tied in the back. The door to the treatment room was ajar as it had been during her last visit. Respondent repeated the Graston procedure and chiropractic adjustment that he performed on May 19, 2016. The Alleged Sexual Misconduct W.H. testified that Respondent also asked her out on a date, made multiple sexually-explicit comments to her, and made sexual contact with her in two separate ways during the May 24, 2016, office visit. According to W.H., at the beginning of the treatment, Resondent instructed her to bend over, and she complied, believing it was necessary for chiropractic treatment. Respondent then grabbed W.H.’s hips and thrust his groin into her buttocks in a humping motion. Surprised, W.H. jumped up straight. Respondent snickered and told W.H. he was “just playin.” W.H. testified that Respondent commented to her about the fact that it was her birthday and again told her she was beautiful. W.H. testified that Respondent asked her “what kind of guys [she] was interested in …” and asked if she would go out for drinks with him that night. W.H. told Respondent she could not go out for a drink because she was on the weight- loss program, and because Respondent was married. Respondent told W.H. that his wife was pregnant and that she would not have sex with him. Respondent told W.H. that he was going to get her to go over to the “dark side.” Respondent is African American and W.H., who is Caucasian, interpreted this comment to mean that Respondent would convince her to date or have sex with an African American. W.H. also testified that Respondent leaned forward and whispered in her ear that she had a beautiful “ass” and that he wanted to bury his face in it. Finally, W.H. testified that near the end of the treatment, Respondent had W.H. slide back on the table while her feet were still strapped to the table, her buttocks was in the air, and her face was down. Respondent slid W.H.’s underwear down halfway on her buttocks and touched the top of her intergluteal cleft with a Graston tool, using enough pressure to separate the intergluteal cleft down her entire buttocks to the front of her vagina in one continual motion. W.H. told Respondent to “stop” several times, saying it louder each time. Respondent then stopped and said “oh, you’re serious” and “snickered.” When the appointment was over, W.H. got dressed, went to the front desk, and paid her co-pay. W.H. testified that when she got to the door to exit the office, Respondent pointed to the phone that was in his hand and mouthed the words, “can I call you” or “can I text you” or other words to that effect. W.H. did not respond and left the office. W.H. subsequently canceled her next appointment with Respondent and never returned to Wright Choice Chiropractic. W.H. testified that in early June 2016, Respondent called her and asked if he had made her uncomfortable and if she was going to return for another appointment. W.H. hung up on Respondent. Respondent denies that he made any sexually-explicit comment to W.H., denies that he thrust his groin into her buttocks in a humping motion, and denies that he touched W.H.’s intergluteal cleft and vagina with a Graston tool. Respondent’s Witnesses Dr. Tara Wright’s treatment room is next door to Respondent’s treatment room. Dr. Tara Wright testified that the walls in the Wright Choice Chiropractic office were “paper thin,” and that she could hear people talking in Respondent’s treatment room when she was in her treatment room, or in any other part of the office. Although she could hear people talking, the words spoken were unintelligible. Dr. Tara Wright testified that on May 24, 2016, she was treating another patient in her treatment room next door when Respondent treated W.H. Dr. Tara Wright testified that she did not hear W.H. say “stop” or “no” or shout or yell at any time during her May 24, 2016, office visit. Dr. Tara Wright testified that on May 24, 2016, she entered Respondent’s treatment room after she finished with her patient, and Respondent was still performing the Graston technique on W.H. when she entered. Dr. Tara Wright testified that she did not see anything unusual, and W.H. did not appear to be upset. Dr. Tara Wright testified that she engaged in small talk with W.H. after she entered Respondent’s treatment room, including asking her whether she was going out for drinks later to celebrate her birthday. Dr. Tara Wright testified that she checked W.H. out at the front desk after her appointment was over, and scheduled another appointment for May 31, 2016. She testified that W.H. did not appear to be stressed or upset, and did not complain about her visit that day. Dr. Tara Wright appeared credible when she testified. That said, Dr. Tara Wright has a personal and financial stake in the outcome of this case; she is married to Respondent, and Respondent provides approximately 40 percent of the household income as a practicing chiropractor. For these reasons, W.H.’s testimony is accepted over the testimony of Dr. Tara Wright where there is conflict. Even if all of Dr. Tara Wright’s testimony was completely accurate, it does not rule out sexual misconduct in this case. Dr. Tara Wright testified that she could hear talking from Respondent’s treatment room, but admits the words spoken were unintelligible. W.H. testified that Respondent whispered inappropriate comments in her ear; Dr. Tara Wright could not have heard a whisper. W.H. told Respondent to “stop” three times; she did not claim that she yelled “stop.” Dr. Tara Wright did not testify that she was in Respondent’s treatment room the entire time, so the inappropriate conduct could have occurred before she entered. Respondent also presented the testimony of Tolka Culbertson, the mother of the patient Dr. Tara Wright treated at the same time W.H. was being treated by Respondent on May 24, 2016. Ms. Culbertson stood in the hallway, outside of Respondent’s treatment room during her daughter’s appointment. Ms. Culbertson could hear a male and female voice in Respondent’s treatment room, but did not testify that she could hear what was said. The door to Respondent’s treatment room was ajar, but she could not see the people inside. Like Dr. Tara Wright, Ms. Culbertson never heard anyone from Respondent’s treatment room say “stop,” or shout. Ms. Culbertson’s testimony does not rule out sexual misconduct in this case. She could not see into Respondent’s treatment room, and, like Dr. Tara Wright, could not hear what was said in Respondent’s treatment room. Finally, Ms. Culbertson was not standing outside Respondent’s treatment room during W.H.’s entire visit. She went in and out of Dr. Tara Wright’s treatment room, and her daughter’s visit ended before W.H.’s visit concluded. Testimony of Dr. Mathis The Department offered expert testimony from Darrel Thomas Mathis, D.C., to prove there was no medical reason for Respondent to thrust his groin into W.H. or touch her intergluteal cleft and vagina with a Graston tool. Dr. Mathis’s testimony in this regard is accepted.2 The Controlled Call W.H. reported Respondent’s conduct during the May 24, 2016, visit to the Corning Police Department in early June 2016. On June 27, 2016, at 12:05 p.m., W.H. called Respondent on a controlled call, at the request of law 2 Expert testimony on this issue is unnecessary because Respondent did not attempt to justify the inappropriate touching as a necessary component of the chiropractic treatments he offered to W.H.; rather, he denied that any of it happened. enforcement, to discuss Respondent’s behavior during W.H.’s May 24, 2016, office visit. Respondent was not aware that the call was being recorded by law enforcement. The following is a verbatim transcript of the controlled call, with all inaudible portions of the call so noted: Dr. Wright: Hello W.H.: Hi, Dr. Jay.[3] This is [W.H.]. Dr. Wright: Hey [W.H.], how are you? W.H.: I’m alright, how are you? Dr. Wright: I am doing just fine. What can I do for you (inaudible)? W.H.: Do you have a few minutes? I just need to talk to you about something. Dr. Wright: Yes, ma'am, go right ahead. W.H.: Okay. I am just -- I need to talk about what happened last time we were at the office. Dr. Wright: Absolutely. W.H.: I haven't had -- it's been kind of driving me crazy. Dr. Wright: Yeah. W.H.: I just want to know -- I guess the -- I guess I want to know why you were acting the way you were with me. Dr. Wright: I don't know -- and I do apologize. It was very unprofessional of me, and I promise you that would not happen again. (Inaudible) made you uncomfortable and I am deeply, deeply, deeply 3 Respondent was known to his patients as “Dr. Jay.” sorry for anything that happened that made you feel uncomfortable. So I am really sorry, [W.H.]. W.H.: I know. I just -- like I said you did -- I mean, you put your knuckle down my rear to my vagina, and it is like why would you -- why did you pick me to do that? That is all I keep thinking of, like why did you pick me to make all those appropriate comments. And I kept saying, you are married. Why did you do that? Dr. Wright: Well, I did not -- and I did not do any of that. It was a tool and very, very unprofessional. I didn't go down to your vagina, but I really am sorry. W.H: Yes, you did actually, but that is -- Dr. Wright: Okay, well I – W.H.: -- neither here nor there. Dr. Wright: I -- I am really, really, really extremely sorry and it was really unprofessional of me and -- and I just -- my mind was not in the right place and I just can't express to you how deeply sorry I am -- and -- and I do apologize for any of that. W.H.: So what am I-- Dr. Wright: And I know an apology doesn't really do it justice and it shouldn't never happen. It will never happen again and like I don't -- I am just really sorry. W.H.: I know. I just -- I guess what is driving me crazy is why me. Why did you pick me? I am like 48 years old and I am -- it is like you are young and you have all these other patients that come in there. Dr. Wright: I -- I -- I don't have an answer for you, [W.H.], I really don't. I am so, so horrible, I am so horrible for that and I tried to call and make it right, and I when I called you before I kind of got a sense of just uncomfortableness and I didn't want to stir it up and I -- I don't have an answer for you. I am just really sorry that that happened. W.H.: All right. Well, you know I am not going to be coming back, because like I said I really thought that you were a really good doctor and then you just took it way too far. Dr. Wright: Yes, ma'am. W.H.: And I don't understand why you did that and it really -- like I said, it was extremely inappropriate. Dr. Wright: Yes, ma'am, I am sorry about that. Okay. W.H.: All right. Dr. Wright: I hope -- I wish you well and -- and if you do need me I can promise you that nothing like that will ever, ever happen again, and I will have someone come in with me when I treat you or I can just give you to Dr. Tara and that can work from there. And again, I do apologize for that. It was really out of my -- like way out of my character and I am not like that. I don't know what happened; I don't know why it happened. It is way out of my character. W.H.: I know, but that is what you say, but I also know that you kind of been extremely flirty with other patients, too. I just don't know if you took it that far. Dr. Wright: I am sorry, you say you don't know what now? W.H.: That you have been like flirty with other patients and said inappropriate things to other patients as well. I just don't know. Like I said, I don't know if you took it as far with them as you did me. Dr. Wright: (Inaudible). W.H.: All right. All right, thank you. I guess thank you for the closure. I think that is what I needed, I just needed to hear an apology. Dr. Wright: (Inaudible). Like right now (inaudible) and I am really sorry. Is everything okay now? W.H.: Yes, I think so, I just needed an apology because it has been driving me crazy. I can't like sleep or anything. Dr. Wright: Yes mam, I am really sorry. W.H.: Thank you. Dr. Wright: (Inaudible). If there is anything you need from me please just let me know. I am terribly sorry. W.H.: Yes. Dr. Wright: I am terribly sorry. W.H.: Uh-huh. Dr. Wright: You have a good day. W.H.: You too, bye. Female Voice: This concludes the recording portion of the [W.H.] talking to Jeremiah Wright. The time is now 12:05 p.m. on June 27, 2016, and this concludes the controlled call between [W.H.] and Jeremiah Wright. On July 5, 2016, following the controlled call, Respondent added a note to W.H.’s chart for the stated purpose of documenting what was said during the controlled call. In this note, Respondent recites, generally, W.H.’s complaint was about inappropriate touching and denies those allegations. Respondent also states in the note that he: apologized for [W.H.’s] uncomfortableness during the treatment and the overall discomfort [W.H.] feels that she had during her visit but I completely deny that accusation that I have touched my patient improperly and the only thing that I would regret is the engaging in some small talk the patient herself initiated. Conspicuously absent from the note are the incriminating statements Respondent made during the controlled call, after W.H. accused him of improperly touching her buttocks and vagina, including: I am really, really, really extremely sorry and it was really unprofessional of me and -- and I just -- my mind was not in the right place and I just can't express to you how deeply sorry I am -- and -- and I do apologize for any of that. * * * And I know an apology doesn't really do it justice and it shouldn't never happen. It will never happen again and like I don't -- I am just really sorry. * * * I -- I -- I don't have an answer for you, [W.H.], I really don't. I am so, so horrible, I am so horrible for that and I tried to call and make it right, and I when I called you before I kind of got a sense of just uncomfortableness and I didn't want to stir it up and I -- I don't have an answer for you. I am just really sorry that that happened. * * * I hope -- I wish you well and -- and if you do need me I can promise you that nothing like that will ever, ever happen again, and I will have someone come in with me when I treat you or I can just give you to Dr. Tara and that can work from there. And again, I do apologize for that. It was really out of my -- like way out of my character and I am not like that. I don't know what happened; I don't know why it happened. It is way out of my character. Respondent offered multiple excuses for why these damning statements do not mean what they say. First, Respondent claims he profusely apologized to W.H. without knowing what he was really apologizing for, and that he apologized to her because he bruised her when he applied the Graston technique during the May 19, 2016, office visit. Setting aside that these two excuses are somewhat contradictory, the factual predicate for both is patently false. Respondent stated that his conduct was “unprofessional” and “way out of [his] character” after W.H. made it clear that she was accusing him of inappropriately touching her buttocks and vagina. W.H. did not complain about bruising from the Graston technique or anything else that happened during the May 19, 2016, office visit. At the hearing, Respondent also claimed he was an abused child who learned to say anything to please people, and that he apologized to W.H. because he had started a new business and did not want to lose a patient. If true, these circumstances could provide a credible explanation for a denial accompanied by a generic apology. But Respondent did not offer W.H. a generic apology; he admitted that his conduct was “really unprofessional,” “horrible,” and “way out of [his] character.” Likewise, Respondent offered no credible explanation for why he promised W.H. that “nothing like that will ever, ever happen again,” and that he would either have someone in the room with him the next time he saw W.H., or that she could be seen the next time by Dr. Tara Wright. W.H.’s testimony as to the sexual misconduct committed by Respondent during the May 24, 2016, office visit is accepted in its entirety. Respondent’s testimony denying W.H.’s sexual misconduct allegations is not credible, and is not accepted where it conflicts with the testimony of W.H. The undersigned finds that Respondent meant what he said and said what he meant during the controlled call. That is, Respondent apologized for unprofessional conduct and promised to have someone in the office with him the next time he saw W.H., because on May 24, 2016, he asked W.H. out on a date, made multiple sexually-explicit comments to W.H., thrusted his groin into W.H.’s buttocks in a humping motion, and touched W.H.’s intergluteal cleft and vagina with a Graston tool. Respondent asked W.H. out on a date and made sexually-explicit comments to W.H. in an effort to induce W.H. to engage in sexual activity, and he engaged, and/or attempted to engage, W.H. in sexual activity when he thrusted his groin into her buttocks in a humping motion, and when he touched W.H.’s intergluteal cleft and vagina with a Graston tool.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Chiropractic Medicine, enter a final order finding Respondent guilty of violating section 460.413(1)(ff), through a violation of section 460.412, as charged in the Administrative Complaint; revoking Respondent’s license to practice chiropractic medicine; and imposing costs of the investigation and prosecution of this case. DONE AND ENTERED this 22nd day of July, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2020. COPIES FURNISHED: Edwin A. Bayó, Esquire Grossman, Furlow & Bayó, LLC 2022-2 Raymond Diehl Road Tallahassee, Florida 32308 (eServed) Rose L. Garrison, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Paul Drake, Esquire Grossman, Furlow and Bayó, LLC 2022-2 Raymond Diehl Road Tallahassee, Florida 32308 (eServed) Mohamad Cheikhali, Esquire Department of Health 2585 Esplanade Way Tallahassee, Florida 32399 (eServed) Julie Gallagher, Esquire Grossman, Furlow & Bayó, LLC 2022-2 Raymond Diehl Road Tallahassee, Florida 32308 (eServed) Anthony B. Spivey, DBA, Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way, Bin C-07 Tallahassee, Florida 32399-3257 (eServed) Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
The Issue By three separate and substantially identical Administrative Complaints each of the Respondents have been charged with violating specified statutory and rule provisions as a result of their having caused to be distributed a certain advertisement for chiropractic services. The Respondents admit that they caused the advertisement to be distributed, but deny that the advertisement constitutes a violation of any statutory or rule provision.
Findings Of Fact Based on the stipulations of the parties, on the admissions of the Respondents, on the testimony of the witnesses at the hearing, and on the exhibits received in evidence at the hearing, I make the following findings of fact. At all times material to this case the Respondent Stephen A. Jacobson was and is a licensed chiropractic physician, having been issued license number CH 0003555. At all times material to this case the Respondent Gary Jacobson was and is a licensed chiropractic physician, having been issued license number CH 0003660. At all times material to this case the Respondent Steven Paul Rosenberg was and is a licensed chiropractic physician, having been issued license number CH 0003784. At all times material to this case the address of each of the three Respondents was and is 9721 South Dixie Highway, Kendall, Florida. The advertisement which is the subject matter of these cases was distributed in Dade County, Florida, as an insert in a publication known as "The Flyer". The subject advertisement was placed by or at the direction of, or was acquiesced in, by all three of the Respondents, Stephen A. Jacobson, Gary Jacobson, and Steven Paul Rosenberg. Stephen A. Jacobson and Gary Jacobson initiated and caused the subject advertisement to be placed and Steven Paul Rosenberg was aware of the contents of the advertisement and acquiesced in its publication. The subject advertisement was an advertisement for chiropractic services, specifically an advertisement for the chiropractic services of the Respondents, each of whom was specifically named in the advertisement. At the time of the distribution of the subject advertisement each of the Respondents practiced at the Sunset Chiropractic Clinic located at 9721 South Dixie, Highway Kendall, Florida. The subject advertisement was distributed approximately two months after an incident in which bottles of Tylenol were found to be contaminated with deadly amounts of cyanide, which contamination resulted in at least one death. The incident involving cyanide contamination was known to all three of the Respondents as well as to the general public. 1/ The subject advertisement contains a prominent picture of a medicine bottle with a skull and crossbones, in conjunction with text urging the reader to try chiropractic and avoid medicine. The predominate theme of the advertisement is that medicine has many dangerous side effects, that one should avoid medicine because it will jeopardize one's health, and that medicine contains cyanide or acid. The subject advertisement contains the following specific statements: "Medicine Has Many Dangerous Side Effects" and "DON'T JEOPARDIZE YOUR HEALTH BY REACHING FOR A BOTTLE." In what turns out to be a statement about chiropractic, the opening text of the advertisement proclaims in large bold letters "IT DOES NOT CONTAIN CYANIDE OR ACID". By the juxtaposition of the picture of a medicine bottle besmirched with the skull and crossbones and the language of the text that follows, the clear import of the advertisement is that medicine is dangerous because it contains cyanide or acid. 2/ The subject advertisement is likely to appeal primarily to a lay person's fears, ignorance or anxieties regarding his state of health or physical well-being. Near the bottom of the subject advertisement are the words "Sunset Chiropractic Clinic." Beneath those words, and in smaller print, are the names of each of the three Respondents. Each name is preceded by the abbreviation "Dr.," but none of the names are followed by the abbreviation "D.C.," or the words "Chiropractor" or "Chiropractic Physician," or by any other designation specifically identifying the Respondents as chiropractors. Thus, the subject advertisement failed to conspicuously identify the Respondents as chiropractors. 3/
Recommendation For all of the reasons set forth above, it is recommended that the Board of Chiropractic Examiners enter a Final Order which would: Find each of the Respondents guilty of all of the violations charged in the Administrative Complaints; Assess a $1,000.00 administrative fine against the Respondent Stephen A. Jacobs, D.C.; Assess a $1,000.00 administrative fine against the Respondent Gary Jacobson, D.C.; and Assess a $1,000.00 administrative fine against the Respondent Steven Paul Rosenberg, D.C. DONE and ORDERED this 29th day of November, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1984.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part Il, Florida Statutes, and Chapter 400, Part X, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The parties have since entered into the attached Settlement Agreement, (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The facility’s Certificate of Exemption is deemed surrendered and is cancelled and of no further effect. 3. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are dismissed and the above-styled case is closed. 4, In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Filed December 24, 2014 3:11 PM Division of Administrative Hearings 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this 25” day of htaewnboer , 2014. , Secretary th Care Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Order was served on the below-named persons by the method designated on this eis of , 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones, Unit Manager Facilities Intake Unit Licensure Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Daniel A. Johnson, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Division of Administrative Hearings (Electronic Mail) Dagmar Llaudy, Esquire Law Office of Dagmar Llaudy, P.A. 814 Ponce De Leon Blvd, Suite 513 Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue Whether the license, No. 1454, issued to licensee should be revoked, annulled, withdrawn or suspended.
Findings Of Fact The Florida State Board of Chiropractic Examiners filed an Administrative Complaint against licensee Stanley Turner, D.C., who holds license number 1454. Count I alleged Respondent made sexual advances toward four patients. Count II alleged that Respondent made improper sexual advances toward employees. Count III alleged that Respondent has been addicted to the habitual use of narcotics, stimulants, or other habit-forming drugs since July 1, 1975. Count IV alleged that Respondent made improper sexual advances on a patient under the guise of necessary chiropractic treatment. Count V alleged that Respondent offered and administered medicines and drugs to two patients. Count VI was dropped at the hearing. Count VII was dropped at the hearing. Count VIII alleged that the foregoing Counts constitutes unprofessional conduct. Respondent denied each of the allegations of the Petitioner. The testimony of the various women who testified against Dr. Turner, together with the testimony of the women who testified for Dr. Turner, does not establish the fact that "improper sexual advances" were actually made by the Respondent, Dr. Turner. The nature of the practice of acupuncture and of the practice of chiropractic is such that the procedures themselves could be misleading as to the intent of the practitioner. Testimony of six medical doctors and two dentists that they had filled prescriptions for the Respondent, Dr. Turner, which prescriptions were for various drugs, Valium, Darvocet, Milhouse, Percodan, Tylenol, Robaxin, was coupled with their testimony that they issued these drugs through "professional courtesy" without ordinary examinations of the patient and that in fact Dr. Turner did suffer from a variety of ills including a back injury, an accident with a horse, and "hangovers." The evidence submitted does not establish that the Respondent took all of these drugs himself or was addicted to the habitual use of narcotics, stimulants or the habit-forming drugs. It does establish that drugs were secured by Dr. Turner in a manner and amount that could be and perhaps was embarrassing to those doctors who wrote the prescriptions for Respondent. The evidence does not support a finding that drugs were offered or administered to patients and employees and other persons. The testimony does establish that the Respondent was guilty of unacceptable conduct inasmuch as the testimony as a whole establishes the fact that Dr. Turner did take advantage of the medical community in requesting prescriptions and that his conduct toward his clients and employees was casual and at times undignified.
Recommendation Give Respondent Stanley Turner a public reprimand then dismiss the complaint. DONE and ORDERED this 7th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302 Charles F. Broome, Esquire Post Office Box 729 Titusville, Florida 32780 =================================================================
Findings Of Fact In light of the fact that the parties offered no testimony, either by way of live witnesses or through depositions, the only facts applicable to this proceeding are those admitted in Respondent's Answer to the Petition herein. These are: This is a petition for the determination of the validity of Rule 21D- 2.17, Florida Administrative Code, one of the rules of the Florida State Board of Chiropractic Examiners. Petitioner, William J. Mayers, D.C., is a practicing chiropractor licensed by the Board of Chiropractic Examiners pursuant to Chapter 460, Florida Statutes, and holding License No. 1806. The Petitioner is charged with violating Rule 21D-2.17, Florida Administrative Code, in Administrative Charges brought by the Board of Chiropractic Examiners, and currently pending before a Hearing Officer from the Division of Administrative Hearings in Case No. 78-2550, and the Petitioner is, therefore, substantially affected by the challenged rule.
The Issue Whether Respondent failed to maintain the qualification set forth in Section 943.13(7), Florida Statutes, requiring a law enforcement officer in the State of Florida to have good moral character by unlawfully being in actual or constructive possession of cocaine on or about May 9, 1988, and by introducing cocaine into her body on or about that date.
Findings Of Fact On November 15, 1974, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 02-11734 was duly issued to Respondent by Petitioner. Respondent is a sworn police officer who has been employed as an investigator in the Special Investigations Unit of the Dade County School System for over 14 years. The Special Investigations Unit is a law enforcement agency consisting of approximately 56 sworn officers whose duties include follow-up investigations on internal issues and the investigation of crimes that are committed on School Board property. There is also a uniformed division which patrols certain of the schools in the Dade County system. The sworn officers of the Special Investigation Unit are required to be certified by Petitioner even though they are employed by the Dade County School Board as School Board employees. The sworn officers of the Special Investigation Unit are represented for collective bargaining purposes with the Dade County School Board by the Police Benevolent Association. The labor contract that was negotiated on behalf of Respondent and her fellow sworn officers of the Special Investigative Unit require that each sworn officer take an annual physical to include the giving of a urine sample from the officer to be analyzed for the presence of controlled substances. Respondent was directed by her employer to present herself on May 9, 1988, for an annual physical examination at Mount Sinai Medical Center. Respondent was aware that an annual physical, including a drug test would be required of her. She was given over two weeks advance notice of the exact date the physical examination would occur. On May 9, 1988, Respondent reported to Mount Sinai Medical Center to submit to the annual physical examination required by her employer. She was given a small sterile sample bottle in which she produced a sample of her urine as instructed. Nurse Cheryl Cain, the Mount Sinai employee responsible for the collection of the urine sample from Respondent, received the urine sample from Respondent and promptly divided the urine sample into two smaller sterile bottles and sealed each of the smaller bottles with its cap and with evidence tape. Nurse Cain followed Mount Sinai's procedures in collecting and sealing the urine sample. The sealed bottles containing Respondent's urine sample were labeled so that each bottle was identified as containing Respondent's urine sample. An identifying series of numbers, referred to as that bottle's bar code, was placed on each of the bottles. Bar code number 118856 was placed on one bottle and bar code number 110783 was placed on the other bottle. The two bottles were then placed in a locked box. On May 9, 1988, the sealed bottles containing Respondent's urine sample were picked up by an employee of Toxicology Testing Service and transported to the facilities of Toxicology Testing Service in Dade County, Florida. Mount Sinai used adequate procedures to ensure that Respondent's urine sample was properly labeled, that the chain of custody was properly maintained, and that the two specimen bottles could not be tampered with without detection. On May 19, 1988, sample bottle 118856 was opened by a laboratory analyst employed by Toxicology Testing Service. A small sample of Respondent's urine sample, referred to as an aliquot, was removed from sample bottle 118856 with a sterile disposable plastic pipette and placed in a sterile disposable cup for analysis. The aliquot of Respondent's urine sample was introduced into the analyzer equipment used by Toxicology Testing Service to screen the sample for the possible presence of controlled substances. The sample screened positive for a cocaine metabolite, which is a metabolized derivative of cocaine created by the natural processing of cocaine by the human body. This screening procedure, known as an emit test, produced a result of 71 on the first screening and a 69 when a separate aliquot from sample 118856 was tested. The emit test is conducted using an Hitachi 705 machine, a piece of equipment that is widely used in the industry. As calibrated, a score of 50 is considered a positive score for cocaine. The purpose of the emit test is to screen those samples that will be later analyzed by gas chromatography mass spectrometry method of testing urine samples. A confirmatory analysis of the sample was then conducted utilizing the gas chromatography mass spectrometry method of testing urine samples. This method is over 99.99% accurate and is the accepted method among toxicologists for identifying drugs and their metabolites. The confirmatory analysis confirmed that Respondent's urine sample was positive for the presence of a cocaine metabolite that can only be produced through the ingestion of cocaine. Subsequent testing on June 3, 1988, by Toxicology Testing Services of aliquots from sample bottle 110783, followed the same procedures as those followed for the analysis of aliquots from sample bottle 118856 and produced similar, positive results for the presence of the cocaine metabolite. Toxicology Testing Service used adequate procedures to ensure that Respondent's urine sample was properly identified, that the chain of custody was properly maintained, and that sample bottle 118856 and sample bottle 110783 had not been tampered with. The testing procedures followed by Toxicology Testing Service are widely accepted in the industry. The equipment used by Toxicology Testing Service was in proper working order. The procedures followed in the taking of Respondent's urine sample and in the subsequent analysis of the aliquots from Respondent's urine sample were consistent with the procedures set forth in Rule 11B-27.00225, Florida Administrative Code, which is entitled "Controlled Substance Testing Procedures". Respondent denies that she has ever used or has unlawfully possessed cocaine. Respondent handles cocaine from time to time in the execution of her official responsibilities, but she was unable to point to an incident that may have produced the positive test results through incidental contact with cocaine. Although samples of the currency in use in South Florida have tested positive for the presence of cocaine, Respondent would not have ingested sufficient quantities of cocaine from currency to produce the level of the cocaine metabolite reflected by the testing. On May 23, 1988, Respondent was advised by her supervisor that she had tested positive for cocaine. Respondent immediately gave another urine sample that tested negative for cocaine. Respondent had attended training sessions that taught that cocaine usually cleared the human body after 72 hours. This is a misconception. The speed with which the cocaine metabolite clears the human system depends on many variable factors, including the general physical condition of the person involved, the amounts of liquids consumed by the person, and the amount of exercise by the person. Cocaine metabolite can be detected in the human body more than 72 hours after its ingestion. Respondent failed to offer any plausible explanation for the positive results of cocaine being detected in her system that would permit any conclusion other than the conclusion that she had voluntarily ingested cocaine. Respondent has been an exemplary employee since her initial employment with the Special Investigative Unit. She has never been suspected of drug use by her superiors. None of her fellow officers ever reported that they suspected Respondent of drug use. Respondent has had several commendations during her term of service. Her performance evaluations have always been satisfactory or higher. Based on the charges involved in the pending proceeding, the Dade County School Board suspended Respondent's employment and instituted proceedings to discharge her from its employ. Following an administrative hearing, the hearing officer (who was not employed by or assigned by the Division of Administrative Hearings) found that the drug tests that found the positive results for cocaine were not reliable and recommended that Respondent be reinstated to her employment. The finding by the previous hearing officer that the tests were not reliable is not binding here and is contrary to the greater weight of the evidence in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character and which further revokes the certification of Respondent as a law enforcement officer. DONE AND ENTERED this 29th day of January, 1990, in Tallahassee, Leon County, Florida. CLAUD B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1990. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. T. Smith, Esquire 1017 N.W. 9th Court Miami, Florida 33136 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent holds a law enforcement certificate issued by Petitioner on March 9, 1983. At times relevant to this inquiry he was employed by the Gainesville, Florida, Police Department as a patrolman. In that capacity, his duties included serving the public, issuing traffic citations, investigating automobile accidents, and making drug arrests. On March 16, 1987, Lt. Alan Morrow of the Gainesville Police Department was investigating a suspect, whose name is Carlos Bartee. In the course of this investigation, Bartee told Morrow that Officer Cunningham had been seen to ingest material which Bartee believed to be cocaine. This is said to have occurred while Cunningham was on duty. Further Cunningham is alleged to have talked to Bartee about getting something to put up Cunningham's nose. This latter remark is taken to mean cocaine, in view of the comments of Morrow, who is recognized as having expertise in interpreting the vernacular associated with the use of that drug. As a consequence of the assertions made by Bartee, an internal investigation was commenced by the Gainesville Police Department. In that pursuit, the locker of Cunningham was opened in his absence and a small container was found which, in Morrow's opinion, contained crack cocaine. Morrow has expertise in the field identification of that substance. In furtherance of the investigation, Respondent was interviewed and offered the opportunity to submit to a urinalysis to ascertain if he had been using cocaine. He was encouraged to seek legal assistance before making a decision on that overture. He was also offered some form of test involving hair follicles which is designed to detect the presence of cocaine. He declined the opportunity for the hair follicle test but agreed to undergo a urinalysis. That urine sample was given with his attorney being aware of that matter. The sample was placed in a container which was not contaminated. The giving of the sample was monitored to insure that no mistakes were made concerning whose sample it might be. The sample was sealed and protected against problems associated with the chain of custody. Respondent was asked to reveal any form of medication that he was using that might effect the results of the analysis made on the sample. He responded that he was using Ibupropen and BC powder. The urine sample was subjected to several tests, the Enzyme Multiplied Immunoassay Technique (EMIT) test; the High Performance Thin Layer Chromatography (HPTLC) test; and Gas Chromatography Mass Spectrometry (GCMS) test. Each test revealed the presence of cocaine. Those substances which he had admitted using; i.e., Ibupropen and BC powder, would not effect the accuracy of these results. Based upon these positive results, Respondent was terminated from his position with the Gainesville Police Department. In closing out his tenure with that Department, Captain Robert Samuel Mitchell, II, who was then the Internal Affairs Supervisor, asked Respondent why he took the test if he knew he had ingested it, taken to mean cocaine. Respondent replied that he did not think it would still be in his system that long. As identified by investigators with the Gainesville Police Department, the use of cocaine was contrary to their agency policies and to Florida law.
Recommendation Under the circumstances set out in the Findings of Fact and based upon the Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered which revokes Willie C. Cunningham's law enforcement certificate. DONE and ORDERED this 27th day of October, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1989.
Findings Of Fact The Respondent, Peter P. Alongi, is a licensed chiropractic physician, practicing in Fort Lauderdale, Florida. An administrative complaint was filed by the Petitioner, Florida State Board of Chiropractic Examiners, dated December 7, 1978, alleging that the Respondent engaged in deception, misrepresentation or fraud by publishing a certain advertisement. An administrative hearing was requested by the Respondent. Thereafter, a motion to dismiss was filed by the Respondent prior to the formal hearing, which was denied. Respondent Alongi casued the following advertisement to be published in the Fort Lauderdale News in the month of May 1978: CHIROPRACTORS SEEK RESEARCH VOLUNTEERS The International Pain Control Institute is presently engaged in what is the most expensive research program ever undertaken by the chiropractic profession. This research is directed toward determining the relationship between health problems and spinal misalignment and utilizes a screening process called contour analysis. Volunteers are being sought for screening. Contour analysis enables taking a 3 dimensional picture (called moire photography) of the topography of the surface of the spine to detect spinal stress deviations. This analysis will be correlated with leg deficiency, patient sympto- matically and levels of spinal tenderness. An analysis of this type can reveal such things as normal and abnormal stress patterns, spinal curvature, muscle spasm, muscle imbalance, spinal distortion and scoliosis. This is a Public Service Program for partici- pating volunteers. The doctors are contributing their time, service and facilities for the program. Anyone wishing to be a volunteer may telephone participating doctors directly for information or an appt. Dr. Peter P. Alongi Dr. Larry Burch 2821 E. Commercial Boulevard 200 SE 12 St. Ft. Laud. Ft. Laud. 491-2449 764-0444 Ms. Laura Borys read the foregoing advertisement and, thinking there would be no charge for treatment, made an appointment with Respondent Alongi. Ms. Borys had interpreted the advertisement to mean that if she presented herself as a "research volunteer" there would be no cost to her. Ms. Borys was accompanied to Respondent Alongi's office by Ms. Katherine Leight, a sister-in- law of Ms. Borys. Ms. Leight had told Ms. Borys that she felt the advertisement was soliciting for paying customers, and that she based her view on the reason that she had never seen such an advertisement by any other chiropractor. Ms. Borys would not have made the appointment with Respondent Alongi to participate as a volunteer pursuant to said advertisement if she had know that x-rays and chiropractic treatment would be on a cost basis. Respondent Alongi performed a contour analysis and gave Ms. Borys a photograph of her back. The Respondent analyzed the photograph and advised Ms. Borys that she had a back problem, and that for a fee of $50.00 she could have x-rays taken and would be charged $15.00 per visit for treatment. Upon a close reading of the foregoing advertisement it is not likely that the general public would have been mislead into believing that free treatments or x-rays would be given. Ms. Borys' sister-in-law, Ms. Leight, did not believe the advertisement was inserted for any other reason than to solicit business for the two doctors included in said advertisement. No questions were raised or evidence submitted as to what constituted the "research program" other than the taking of the picture of the back, or whether members of the public were deceived or mislead into thinking that there was in fact a valid program. Both parties submitted proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they are specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends the Administrative Complaint be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of July, 1979. COPIES FURNISHED: Paul W. Lambert, Esquire 1311 Executive Center Drive Suite 201, Ellis Building Tallahassee, Florida 32301 Thomas F. Panza, Esquire 2803 East Commercial Boulevard Fort Lauderdale, Florida 3308 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675
