03-000946PL Department Of Health vs. Charles Leroy Mitzelfeld, D.C. Status: Closed Recommended Order on Thursday, August 28, 2003.

Summary: Respondent guilty of sexual misconduct with patient.

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

J une 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 1 02

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, t he 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

Mi tzelfeld, 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

E xhibits 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 Hearing s 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 volum e 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

A. The Parties .

1. Petitioner, the Department of Health (hereinafter

referred to as the "Department"), is the agency of the State of

Florida charge d 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 l icensed to

practice chiropractic medicine in Florida, having been licensed

in Florida since 1985. Dr. Mitzelfeld's license to practice has

not been previously disciplined.

B. Dr. Mitzelfeld's Practice .

3. At the times material to this matter, Dr. Mitzel feld

operated Foundation Chiropractic (hereinafter referred to as

"Foundation"), a chiropractic clinic located in West Palm Beach,

Florida.

4. Foundation employees three individuals, in addition to

Dr. Mitzelfeld's wife, daughter, father, and mother. 2

5. 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 adj ustments prior to reporting to their jobs.

6. 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.

7. 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 rem ained 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.

8. The evidence failed to prove that, even t hough 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.

C. Dr. Mitzelfeld's Trea tment of Patient C.H .

9. 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.

10. During the period of time that Dr. Mitzelfeld was

treating C.H., he was also treating C.H.'s husband. 4

11. From the time that C.H. began coming to Foundation

until approximately January of 2002, C.H. was seen by

Dr. Mitzelfeld during the aft ernoon, when staff and other

patients were present. Most often, her appointments were at

approximately 3:00 p.m.

12. 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.

13. 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 exam ple,

Dr. Mitzelfeld began to tell C.H. that she was pretty and that

she looked good in whatever she was wearing.

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

C.H. She responded by telling him personal things about her

life, telling him that he r marriage was "terrible," that her

husband no longer slept in the same room with her, and that they

no longer had sexual relations.

15. Dr. Mitzelfeld's comments to C.H. continued to become

more flirtatious and suggestive. Among other things, he told

he r 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 wit h you and I'd be making love to you every

night." Lines 11 - 14, Page 69, Transcript of June 19, 2003.

16. 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 pro fessional, but more

personal and intimate, a change she welcomed.

17. 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.

18. In approxi mately 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. Mi tzelfeld 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.

19. 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

20. 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, 200 3.

21. 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.

22. C.H. continued to naively believe that she was in love

with D r. 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. M itzelfeld and further the relationship she believed

they had.

23. 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."

24. 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.

25. 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.

26. Once in the bathroom, they continued to hug and kiss

while she attemp ted 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."

27. C.H. caused Dr. Mitzelfeld to have an or gasm, after

which he told her repeatedly how much he had enjoyed it. She

told him that next time she would bring whipped cream.

28. Eventually, Dr. Mitzelfeld, having been sexually

satisfied, realized the possible consequences of what had

happened and to ld 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.

29. C.H. left Foundation upset and, becau se 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.

30. 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.

31. 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 treatme nt.

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.

32. When Dr. Mitzelfeld came into his office and saw C.H.

standing t here, 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.

33. Dismayed and confused, C.H. dressed, as Dr. Mitzelfeld

instructed her, and left the Foundation, never to return.

34. Later the same day, Dr. Mitzelfe ld 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.

Mi tzelfeld 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 ad mit the events found is this Recommended Order to

Dr. McLaughlin.

35. 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

h er relationship with Dr. Mitzelfeld was based upon lust and not

some deeper emotional feeling.

D. The Department's Administrative Complaint and

Dr. Mitzelfeld's Request for Hearing .

36. 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, tha t 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.

37. On or about March 18, 2003, Dr. Mitzelfeld, t hrough

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).

38. On Marc h 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.

E. C.H.'s Legal Na me .

39. 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 t hroughout 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 f ailed to prove that, because of her technical

error, her testimony in this matter was not believable.

40. 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 1 9, 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.

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

41. 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.

42. C.H. was prescribed and has taken Wellbutrin,

Adderall, and Serzone. She al so 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.

43. 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

A. Jurisdiction .

44. 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).

B. The Charges of the Administrative Compl aint; "Sexual

Misconduct ."

45. 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.

46. Section 460.413(1) sets out the grounds for taki ng

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

discipli nary 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.

C. The Burden and Standard of Proof .

47. The Depar tment 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 speci fic 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. O sborne 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).

48. 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

t he 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).

D. The Department's Proof .

49. 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 e ngage,

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.

50 . 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 fou nded 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 patien t 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 include s 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 t ouch 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 su ggestive,

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 - d iagnostic 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 s exual 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

occurr ed , 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

chir opractic 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).

51. The proof presented by the Department in this case

proved clearly and convincingly that Dr. Mitzelfeld is guilty of

"sexual misconduct" prohi bited by Section 460.412.

52. 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."

53. T he Department also proved that Dr. Mitzelfeld

committed the following acts, which come within the definition

of "sexual misconduct" found in Rule 64B2 - 17.0021:

a. Dr. Mitzelfeld and C.H. had "direct . . . phys ical

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

contac t with and penetrated C.H.'s oral orifice with his penis.

Rule 64B2 - 17.0021(6);

b. Dr. Mitzelfeld also made "suggestive, lewd, or

lascivious remarks to a patient", C.H. Rule 64B2 - 17.0021(4);

and

c. 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).

54. 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.

E. The Appropriate Penalty

55. In determining the appropriate punitive action to

recommend to the Board in this case, it is necessary to consult

the Boar d'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).

56. The Boa rd'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

pursua nt 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 follow ing 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 t he 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 $1 0,000 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 vi olation, 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 f ine of $5,000 and/or suspension of

license for two years followed by two years

of probation. . . ;

. . . .

57. 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:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of specific offenses;

(d) The actual damage, physical or

otherwise, to the patient(s);

(e) The length of time since the date of

the last violation(s);

(f) The length of time the licensee has

practiced his or her profession ;

(g) Prior discipline imposed upon the

licensee;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

licensee’s livelihood;

(j) Rehabilitation efforts of the licensee;

(k) Efforts of the licensee to correct or

stop violations or failure of the licensee

to correct or stop violations;

(l) Related violations against the licensee

in another state, including findings of

guilt or innocence, penalties imposed and

penalties served;

(m) The actual negligence of the license e

pertaining to any violation;

(n) Any other mitigating or aggravating

circumstances.

58. A number of the foregoing factors mitigate against

revocation of Dr. Mitzelfeld's license, as recommended by the

Department:

a. The offense was not severe and did not constitute a

danger to the public;

b. There was essentially only one offense;

c. 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 Or der,

welcomed and sought Dr. Mitzelfeld's conduct;

d. It has been more than a year since the incidents took

place;

e. Dr. Mitzelfeld has been practicing for approximately

18 years without prior disciplinary action having been taken

against his license;

f . 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

g. Although Dr. Mitzelfeld's reaction after May 16, 20 02,

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.

59. If probation is imposed on a license, Rule 64B2 -

17. 003(3) provides that the probation may be subject to the

following conditions:

(a) Restitution of the cost of probation;

(b) Restitution to patient(s) or third -

party payor(s);

(c) Payment of fine(s);

(d) Consent to Department access to all

business rec ords;

(e) Fulfilling continuing education

requirements ;

(f) Consent to indirect or direct

supervision of practice by Board - approved

sponsor;

(g) Consent to restrictions on advertising;

(h) Consent to restriction of practice,

including hours, days or ty pe of practice ;

(i) Consent to disallowance of sponsorship

of trainees;

(j) Submission of reports by licensee and

consent to submission of reports by sponsor

and/or employer and/or helping professional;

(k) Consent to urine and blood testing;

(l) Fulfi lling community service

requirement(s);

(m) Successful completion of the SPECS

examination of the National Board of

Chiropractic Examiners;

(n) Other conditions as appropriate .

(Emphasis added).

60. 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

perio d 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.

Mitze lfeld of any female patient.

61. 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 Bo ard.

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 me dicine

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 Hearing s

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 D r. 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 fai led 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 treat ment 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 co rroborating 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 se eing 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. Mitz elfeld 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., Ex ecutive 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 O F 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.