17-002747PL Department Of Health, Board Of Dentistry vs. Juan Francisco Sanchez, R.D.H. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, January 24, 2018.

Summary: DOH proved by clear and convincing evidence that Respondent, a dental hygienist, was guilty of violating statutes prohibiting sexual misconduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

DENTISTRY,

Petitioner,

vs. Case No. 17 - 2747PL

JUAN FRANCISCO SANCHEZ, R.D.H.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On J uly 13, 2017, Administrative Law Judge J. Lawrence

Johnston held the final hearing in this case by video

teleconference at locations in Fort Myers and Tallahassee.

APPEARANCES

For Petitioner: Rob F. Summers, Esquire

Emily Bruno, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

For Respondent: Juan C. Santos, Esquire

Suite 555 - S

4000 Hollywood Boulevard

Hollywood, Florida 33021

STATEMENT OF THE ISSUE S

The issues are whether the Respondent, a licensed dental

hygienist, should be disciplined for violating se ction

456.072(1)(v), Florida Statutes (2015) , 1/ by engaging or

attempting to engage in sexual misconduct, as defined by section

456.063(1); and, if so, the appropriate discipline.

PRELIMINARY STATEMENT

In 2016, the Petitioner, the Department of Health

(Dep artment), filed an Administrative Complaint alleging that the

Respondent engaged or attempted to engage in sexual misconduct

with five different patients. The Respondent disputed the

allegations and asked for a disputed - fact hearing.

The hearing request w as referred to the Division of

Administrative Hearings for assignment of an A dministrative Law

Judge . Discovery was conducted, and the parties filed a Joint

Pre - h earing Stipulation, which included a number of agreed facts.

At the hearing, Dr. Juan Castel lanos, the dentist who employed

the Respondent as a dental hygienist, testified as did two

patients . Three other patients were deposed, and their

deposition transcripts were admitted in lieu of live testimony as

Joint Exhibits 11, 12, and 13. Joint Exhib its 1 through 9 also

were admitted in evidence. Joint Exhibit 10 was the transcript

of the RespondentÓs deposition. It was admitted except for the

parts relating to an alleged incident in 2003 because they were

ruled inadmissible as similar fact evidence under section

90.404(2), Florida Statutes (2017), as were the PetitionerÓs

proposed Exhibits 1 and 2. The Respondent also testified, and

the RespondentÓs Exhibit 1 was admitted.

A Transcript of the final hearing was filed, and the parties

filed proposed recommended orders (PROs). The RespondentÓs PRO

was untimely, and the Respondent moved for acceptance of his late

PRO. No opposition to the late PRO was filed, and both PROs have

been considered.

FINDING S OF FACT

1. Respondent is licensed as a dental hy gienist in the

state of Florida, having been issued license DH 16819.

2. Between November 2015 and February 2016, the Respondent

was working as a part - time (Monday, Wednesday, Friday) dental

hygienist at Coral Dental and Denture in Cape Coral (Coral

Denta l) . Coral Dental is owned and operated by Juan Castellanos,

D.D.S.

3. On January 13, 2016, a patient identified in the hearing

transcript as B.M.1, a 77 - year old female, had a cleaning

performed by the Respondent. This was the patientÓs second visit

to Coral Dental , but the first time having work done by the

Respondent. Her first cleaning was performed by a female dental

hygienist named Marley (sometimes spelled Marly in deposition

transcripts), who is Dr. CastellanosÓ wife. The patient was not

used to having cleanings done by a male dental hygienist and

preferred the female dental hygienist. She asked the Respondent

why he was doing the cleaning, and he told her it was because she

was on his schedule.

4. During the course of the cleaning performed th at day,

the patient felt the Respondent touch her upper chest near her

breasts with the back of his forearm once or twice. This made

her feel uncomfortable. She also had several other complaints

about the cleaning. When she checked out at the front desk after

the appointment, she began crying. When asked why, she told the

office manager what happened. (The office manager was Traci

Roesler. Her name is misspelled Tracey in the hearing transcript

and Rustler in Joint Exhibit 12, which is patient G.Z.Ós

deposition transcript.)

5. The office manager reported B.M.1Ós complaints to

Dr. Castellanos. Dr. Castellanos, his wife, and his office

manager viewed video taken by a surveillance camera in the

cleaning room, but the Respondent was positioned with his back to

the camera during the cleaning so that the view of what he was

doing to the patient was blocked, and the video did not show any

sexual misconduct.

6. Dr. Castellanos then went to the Respondent to ask if

everything went alright with B.M.1Ós cleani ng. The Respondent

told him everything was fine, but the patient complained about

everything. Dr. Castellanos told him about the complaint of

sexual misconduct, which the Respondent denied. Dr. Castellanos

told him that he had viewed the surveillance vi deo, which did not

show sexual misconduct. The Respondent understood that the video

exonerated him and that Dr. Castellanos was going to preserve the

video in case the patient pursued her complaint. This was a

misunderstanding. The video did not exonera te him, and it was

not preserved. It operated on a 90 - day loop, and the video would

be erased and re - recorded 90 days later. In any event, there was

an electrical fire in the office in late March of 2016, and the

surveillance tapes were destroyed along w ith many other things in

the office. No video recording was available for the

PetitionerÓs eventual investigation or for evidence at the

hearing.

7. After the episode with B.M.1, Dr. Castellanos decided to

investigate by having his office staff conduct w hat he called a

quality control survey of the RespondentÓs patients to determine

whether any other patients had similar complaints. In the

meantime, the Respondent continued to work for Coral Dental part -

time.

8. Another patient seen by the Respo ndent fo r a cleaning on

January 13, 2016, was identified in the hearing transcript by the

initials L.B. At the time, L.B. was a 65 - year old woman. L.B.

testified by deposition that, during the cleaning, she was fully

reclined in the dental chair, and the Respond ent was positioned

on her right side, near her torso rather than her head. The

Respondent asked the patient to hold the suction hose instrument

with her right hand while he was doing the cleaning. This opened

a space between her arm and her right breast. The Respondent

placed a bib on the patient and patted the bib in place across

her breasts, touching the area of and around her nipples. The

Respondent also wiped his instruments rapidly over the patientÓs

breast, using a stroking motion over her nipple. L.B. estimated

that he did this approximately 30 times during the cleaning.

Then, while the patient rinsed her mouth, the Respondent placed

his hand under the bib, pinched the nipple of the patientÓs right

breast, and pulled on it. L.B. estimated that he continued doing

this for about a minute while saying, Ðvery nice, very nice.Ñ

Then, when Dr. Castellanos entered the room to examine the

patientÓs mouth, the Respondent stood behind him and rubbed a

folder against the insides of the patientÓs legs, whi ch the

dentist could not see. When the dentist turned around, the

Respondent quickly removed the folder from between the patientÓs

legs, pretended to be reviewing it, and acted as if everything

was normal.

9. L.B. was in shock and disbelief at what the R espondent

did during the cleaning. At first, she gave him the benefit of

the doubt, but she became convinced as his actions escalated that

they had to be intentional. She did not report them to

Dr. Castellanos or his office staff at the time because she was

afraid they would not believe her due to her age. She did tell

her husband later the same day. She was going to stop using

Coral Dental and cancelled her next appointment, but she changed

her mind and decided instead to continue going to Coral Denta l

but to stop being seen by the Respondent.

10. The next time L.B. was at Coral Dental was on

February 11, 2016. On that visit, she noticed what appeared to

be a surveillance camera in the examination room. It occurred to

her that images captured by th e camera could show the

Respondent Ós sexual misconduct on January 13. When the office

staff confirmed to her that there was a surveillance camera in

the examination room, she decided to report the sexual

misconduct.

11. When Dr. Castellanos was given L.B .Ós report, he

decided to terminate the Respondent. He did not look for video

evidence from his surveillance system before making this

decision.

12. Coincidentally, on the very next day, which was Friday,

February 12, the Respondent was offered full - time employment as a

dental hygienist for another dentist. He reported this to

Dr. Castellanos when he arrived at work that day and gave notice

that his last day working for Coral Dental would be February 26,

2016. He overheard Dr. Castellanos immediately a sk his office

manager to start calling potential replacements for the

Respondent.

13. The Respondent went to work the following Monday,

February 15, and was introduced to a woman who was going to be

his replacement. Dr. Castellanos told the Respondent t o show her

all the tools and orient her on the job. When the Respondent

left the office at the end of the day, he told Dr. Castellanos he

wo uld see him Wednesday, February 17, which was his next

scheduled work day. Dr. Castellanos told him not to return on

Wednesday because his employme nt with Coral Dental was over.

14. The Respondent thought his abrupt termination after

giving two weeksÓ notice was unfair. Unaware of L.B.Ós report,

he mistakenly thought Dr. Castellanos was terminating him in

retaliatio n for quitting and taking a job with another dentist.

Dr. Castellanos denied this and maintained that he actually

terminated the RespondentÓs employment because of the allegations

of sexual misconduct.

15. After the RespondentÓs termination, Dr. Castella nos had

his office manager continue with the quality control survey of

the RespondentÓs patients, which was conducted by telephone.

Dr. Castellanos instructed the office manager to ask a neutral,

open - ended question about the quality of the RespondentÓs work

and see what kind of response was given.

16. Apart from the telephone survey, Dr. CastellanosÓ

office received a complaint from another patient, identified in

the hearing t ranscript as B.M.2, on February 18, 2015. At the

time, B.M.2 was just shy of 64 years old. On that day, she

accompanied her husband to an appointment and , while there , told

Marley about the RespondentÓs sexual misconduct during the

cleaning she received from him at her appointment a few weeks

earlier, on February 5. Similar to L. B.Ós experience, the

Respondent positioned himself next to her waist instead of near

her head, as other dental hygienists did, and he brushed over the

nipple area of her right breast with the side of his arm every

time he reached over her to perform work i n her mouth, which no

other dental hygienist ever did to her while performing a

cleaning. The brushing motion would continue for several seconds

to a minute at a ti me. This happened ten to 20 times during the

cleaning. The Respondent also cleaned the mi rror he was using by

reaching under the bib that was laying on her chest, thereby

touching her breast, and using the bib as a cloth to clean the

mirror. This happened twice during the cleaning. This conduct

made the patient very uncomfortable. She belie ved it was

intentional because it was so repetitive. She did not say

anything at the time because she was in shock that it would

happen to her at a dentistÓs office.

17. On February 24, 2016, a 64 - year old female patient, who

is identified in the hearing transcript by the initials G.Z.,

responded to Coral DentalÓs telephone survey. When asked about

her experience with the Respondent, she told Traci the office

manager that she had an appointment with the Respondent on

December 2, 2015. While performing a deep cleaning, the

Respondent stroked her right breast 20 - 30 times with his palm and

forearm as he moved toward her face. She believed the motion was

deliberate and intentional, but she did not react or say anything

at the time. After the appointment, s he told her husband about

it. She testified that it made her feel uncomfortable, but she

decided to give the Respondent the benefit of the doubt and made

another appointment for the Respondent to finish the deep

cleaning, which she was made to understand had to be done

promptly.

18. G.Z. returned to complete her deep cleaning by the

Respondent on December 16, 2015. The Respondent began to repeat

the sexual misconduct by stroking the patientÓs breast several

times. This time, the Respondent angrily sat u p, moved his hand

away from her breast, and swore at him, saying something like,

ÐYou touch me like that again, and youÓll be wearing your balls

like earrings.Ñ The Respondent pushed or guided her back down

into the chair and finished the deep cleaning wi thout further

incident. When the patient left, the Respondent followed her to

the front desk, tried to hug her, and referred to her as his

Ðfriend.Ñ She did not report the sexual misconduct at the time

because she Ðjust wanted to get out of there.Ñ Late r that day,

she told her husband what happened.

19. In the weeks following the deep cleaning, G.Z. had a

Ðgradual reckoningÑ as the import of the RespondentÓs actions

sunk in. She struggled to admit to herself that she had let

herself be the victim of a sexual assault. She decided not to

show for her next dental appointment at Coral Dental.

20. Another patient who responded to Coral DentalÓs

telephone survey was a 66 - year old female identified in the

hearing transcript by the initials B.C. She reported what

happened to her at her appointment on December 11, 2015. During

the cleaning the Respondent performed on that day, he touched her

breasts several times. First, he touched them with his hand

while placing the bib on her. Then, he brushed his arm or wrist

against her breast over and over as he cleaned her teeth.

Sometimes, he lifted the patientÓs breast while reaching for his

instruments. He also rested his arm on her breast. Altogether,

he touched her breasts six to nine times. He also placed hi s

elbow between the patientÓs thighs while scraping her teeth and

moved his elbow up and down against the patientÓs crotch for 30

to 40 seconds, as if trying to stimulate her. After the

cleaning, the Respondent walked B.C. to the front desk with his

hand on the small of her back. At the front desk, the patient

tried to avoid scheduling another appointment, but the Respondent

put his arms around her from behind, pressed against her back,

and told her she had to come back for more work. At the

RespondentÓs insistence, B.C. made another appointment. When she

turned to leave, the Respondent patted and squeezed her buttocks.

The office staff was unable to see what the Respondent was doing

on the other side of the high front desk.

21. B.C. felt embarrassed, ashamed, and bad about herself

in response to the RespondentÓs actions. She did not protest to

the Respondent, saying she just squirmed in the dental chair and

tried to Ðmake [her]self smaller.Ñ She did not tell anyone at

the dental office about the Resp ondentÓs sexual misconduct

because she felt humiliated. She broke down crying on the way

home in the car and told her husband about it.

22. Before the telephone survey was completed, with 50 more

patients of the Resp ondent yet to be contacted, Dr. Castel lanos

notified the Petitioner what had be en discovered so far. On

March 24, 2016, the PetitionerÓs investigator spoke to Tr aci the

office manager. On May 5, 2016, the investigator interviewed

each of the five patients by telephone. The information they

gave the investigator was consistent with their testimony at the

final hearing and by deposition.

23. The Respondent does not deny that the conduct

attributed to him by these patients constitutes intentional

sexual misconduct. (This is clearly true as to the conduct

attributed to him by L.B., B.C., G.Z., and B.M.2; it is less

clear as to the conduct attributed to him by B.M.1.) Rather, he

claims that none of the reported conduct ever happened. Instead,

he claims that Dr. Castellanos was angry at him for quitting and

taking a full - time job working for another dentist, and that he

had his office staff solicit and obtain false claims of sexual

misconduct from these patients. The Respondent testified that he

only heard about one of the patient complaints be fore he was

fired and that he was fired right after he gave his two - week

notice. He thought those facts would help him prove his defense .

But the much stronger evidence was that the victims were telling

the truth; that they did not complain sooner becaus e they were

embarrassed and ashamed; and that the timing of the termination

of the RespondentÓs employment was merely coincidental with his

giving two - weeksÓ notice.

CONCLUSIONS OF LAW

24. Section 456.072(1)(v), Florida Statutes (2015),

authorizes the Boa rd of Dentistry to discipline a licensee for

engaging or attempting to engage in sexual misconduct, as defined

and prohibited in section 456.063(1).

25. Section 456.063(1) defined sexual misconduct in the

practice of a health care profession as a Ðviolati on of the

professional relationship through which the health care

practitioner uses such relationship to engage or attempt to

engage the patient . . . in, or to induce or attempt to induce

such person to engage in, verbal or physical sexual activity

outsid e the scope of the professional practice of such health

care profession.Ñ

26. Because the Petitioner seeks to impose license

discipline, the Petitioner has the burden to prove its

allegations by clear and convincing evidence. See DepÓt of

Banking & Fin. v. Osborne Stern & Co., Inc. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). This

Ðentails both a qualitative and quantitative standard. The

evidence must be credible; the memories of the witnesses must be

clear and without confusion; and the sum total of the evidence

must be of sufficient weight to convince the trier of fact

without hesitancy.Ñ In re Davey , 645 So. 2d 398, 404 (Fla.

1994). See also Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983). ÐAlthough t his standard of proof may be met where

the evidence is in c onflict, . . . it seems to preclude evidence

that is ambiguous.Ñ Westinghouse Elec . Corp. v. Shuler Bros.,

Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991) (citations

omitted).

27. The Petitioner pr oved by clear and convincing evidence

that the Respondent violated section 456 .072(1)(v) by , engaging

or attempting to engage patients L.B., B.C., G.Z., and B.M.2 in,

or attempting to induce them to engage in, verbal or physical

sexual activity outside the scope of the professional practice of

dental hygiene , which is sexual misconduct, as defined by section

456.063(1) . The evidence as to patient B.M.1 was not clear and

convincing.

28. Under section 456.072(2), the Board of Dentistry can

impose the foll owing penalties for violations of section

456.072(1)(v): suspension or permanent revocation; restriction

of practice; an administrative fine; a reprimand or letter of

concern; probation; corrective action; and/or remedial education.

29. Florida Administr ative Code Rule 64B5 - 13.005 (2015), 2/

provided guidelines for the discipline to be imposed on a dental

hygienist by the Board of Dentistry. The guidelines provided a

penalty range for a first violation of section 456.072(1)(v) from

a $2,500.00 fine to rev ocation, or probation with conditions, and

a $10,000 fine. The penalty range for a second offense was from

probation with conditions and a $5,000 fine to suspension

followed by probation with conditions, or revocation, and a

$10,000 fine. The penalty ran ge for a third offense was from

suspension followed by probation with conditions and an $8,000

fine to revocation and a $10,000 fine. Fla. Admin. Code R. 64B5 -

13.005(1)(uu).

30 . Rule 64B5 - 13.005(2) set out aggravating and mitigating

factors that can just ify a d eviat ion from the penalty guidelines.

Consideration of those factors supports the penalty sought by the

Petitioner, which is revocation and a $2,500 fine.

31 . Section 456.072(4), Florida Statutes (2017), provides

that the costs of investigation an d prosecution must be assessed

when a violation is proven. At the end of the hearing, the

Respondent argued that he should only be required to pay the

costs relating to one of the two attorneys who represented the

Petitioner at the final hearing. It is p remature to decide

issues relating to the reasonableness of the PetitionerÓs costs.

Jurisdiction is retained for that purpose in the event the

parties cannot reach an agreement as to costs, and a hearing

becomes necessary.

RECOMMENDATION

Based on the fore going Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Department of Health, Board of Dentistry: finding the Respondent

guilty of four violations of section 456.072(1)(v), by violating

section 456.063(1); rev oking his license to practice dental

hygiene; fining him $2,500; and imposing the costs of

investigation and prosecution. Jurisdiction to determine the

costs of investigation and prosecution is retained for 30 days

after rendition of the f inal o rder, in t he event the parties

cannot agree on them.

DONE AND ENTERED this 19th day of September , 2017 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 19th day of September , 2017 .

ENDNOTE S

1/ Unless otherwise noted, statutory references are to the 2015

codification of the Florida Statutes, which was in effect at the

time of the alleged offenses.

2 / Unless otherwise noted, rule references are to the 2015

codification of the Florida Administrative Cod e , which was in

effect at the time of the alleged offenses.

COPIES FURNISHED:

Juan C. Santos, Esquire

Suite 555 - S

4000 Hollywood Boulevard

Hollywood, Florida 33021

(eServed)

Rob F. Summers, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Emily Bruno, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Nichole C. Geary, General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

(eServed)

Jennifer Wenhold, Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C - 08

Tallahassee, Florida 32399 - 3258

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.