18-000263PL Department Of Health, Board Of Chiropractic Medicine vs. Hamed Kian, D.C. Status: Closed Recommended Order on Friday, July 27, 2018.

Summary: Respondent's use of the chiropractor-patient relationship to engage in sexual activity warranted revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

CHIROPRACTIC MEDICINE,

Petitioner,

vs. Case No. 18 - 0263PL

HAMED KIAN, D.C.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Admini strative Law Judge F. Scott Boyd, of the Division of

Administrative Hearings, conducted the final hearing in this case

on June 12, 2018, by video teleconference at sites in West Palm

Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Mary A. Igle hart, Esquire

Derrick Jovan McBurrows, Esquire

John A. Wilson, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C65

Talla hassee, Florida 32399

For Respondent: David W. Spicer, Esquire

Jonathan Wick Chambers, Esquire

Law Offices of Spicer & Chambers, P.A.

8895 North Military Trail, Suite 302E

Palm Beach Ga rdens, Florida 33410

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent engaged in

sexual misconduct in the practice of chiropractic medicine, in

violation of section 460.412, Florida Statutes, or whether

Respondent engaged in sexual misconduct while acting as a health

care professional in violation of section 456.072(1)(v), Florida

Statutes; and, if so, what is the appropriate sanction.

PRELIMINARY STATEMENT

On November 16, 2017, the Florida Department of Health

(Petitioner or Depart ment) served an Administrative Complaint

against Hamed Kian (Respondent or Dr. Kian). Respondent disputed

material facts alleged in the complaint and requested an

administrative hearing. Two motions to continue were granted,

after which the hearing was h eld as scheduled on June 12, 2018.

A t the hearing, the parties offered two joint exhibits: J - 1

and J - 2. Petitioner offered 17 additional exhibits: P - 1, the

deposition testimony of Dr. Michael Shreeve, a chiropractor, as

limited by pre - hearing Order; and P - 2 through P - 17. All exhibits

were admitted, Exhibits P - 2, P - 3, and P - 11 through P - 16 over

objection, with the caveat that hearsay would be used only to

supplement or explain other competent evidence, and would not be

sufficient in itself to support a f inding of fact. Petitioner

offered the live testimony of three witnesses: Patient J.K., a

registered nurse and former patient of Dr. Kian; Detective Brian

Panczak of the Jupiter Police Department; and Robert Lorezca, a

friend of J.K . ' s family and indepen dent m assage t herapist

operating out of Dr. Kian ' s office. Respondent testified on his

own behalf and presented the testimony of Dr. Stephen Alexander,

a psychologist.

The one - volume T ranscript was filed with the Division of

Administrative Hearings on Jul y 10, 2018. Both parties timely

filed proposed recommended orders, which were considered in the

preparation of this Recommended Order.

References to the Florida Statutes are to the 2016 version,

unless otherwise indicated.

FINDING S OF FACT

1. The Florida Department of Health, Board of Chiropractic

Medicine, is the state agency charged with regulating the

practice of chiropractic medicine in the state of Florida,

pursuant to section 20.43 and chapters 456 and 460, Florida

Statutes.

2. At all times materia l to this proceeding, Dr. Kian was a

licensed chiropractic physician in the state of Florida, holding

license number CH10343. He is subject to jurisdiction of the

Board of Chiropractic Medicine. Dr. Kian has also been licensed

to practice in the states o f Kentucky and Kansas , and has

practiced chiropractic medicine in Germany.

3. Dr. Kian ' s current address of record is 901 West

Indiantown Road, Suite 20, Jupiter, Florida 33458. He received

his chiropractic degree in 2009 from Life University in Georgia .

4. Dr. Kian operates a chiropractic clinic named Capstone

Chiropractic, renting office space at that location to an

acupuncturist named Kelvin Yu (Mr. Yu) and a massage therapist

named Robert Lorezca (Rob). Dr. Kian has not previously been

subject to d isciplinary action by the Board of Chiropractic

Medicine.

5. Patient J.K. has been recently licensed as a registered

nurse. At the time of the incidents alleged in this case, she

was a licensed practical nurse. Patient J.K. had received

chiropractic tr eatment from three or four different chiropractors

on about 20 to 30 occasions prior to meeting Dr. Kian. Patient

J.K. frequently receives treatment by Rob for muscle soreness.

Rob was a friend of Patient J.K. ' s family , and they have known

each other for many years.

6. Patient J.K. first met Dr. Kian after an appointment

with Rob for a massage therapy session at Capstone Chiropractic.

That meeting occurred months before the incident at issue. On

that earlier occasion, Dr. Kian gave Patient J.K. a fre e

chiropractic adjustment as a favor to Rob. The treatment was

administered in an open area.

7. On April 25, 2017, when Patient J.K. first entered

Capstone Chiropractic, she had a brief conversation with Rob,

Dr. Kian, and Mr. Yu, and they discussed that they could open a

spa because they offered so many different treatment options.

She discussed a chiropractic adjustment with Dr. Kian , and he

indicated he would adjust her after her massage with Rob. She

also had an appointment with Mr. Yu.

8. After her massage, Dr. Kian took Patient J.K. to a table

in the open room to adjust her. Although she had been undressed

for the massage, she had put her clothes back on afterwards, and

was fully clothed during the adjustment. Patient J.K. told

Dr. Kian that s he had pain in her lower back, as she frequently

did, and that recently her right foot also had begun to hurt.

9. Following the adjustment, Dr. Kian offered Patient J.K.

an additional trigger point release treatment. This would

involve a treatment of t he hamstring and the psoas, a muscle

which runs from the lumbar spine to the femur. To administer the

trigger point release, Dr. Kian was to perform a deep massage of

the affected areas.

10. Patient J.K. asked Dr. Kian if the trigger point

release massa ge required skin - on - skin contact, and Dr. Kian told

her it did. She returned to the private massage room she had

been in earlier with Rob. She undressed completely and lay face

down on the massage table, covered by a sheet. When Dr. Kian

returned, they were the only persons in the room.

11. When Patient J.K. was on her stomach, Dr. Kian lifted

the sheet to massage her hamstrings. Patient J.K. could feel

that the sheet was " pulled all the way off, " exposing her

buttocks, so she pulled the sheet back to cover herself.

Dr. Kian then readjusted the sheet " halfway " and proceeded to

massage Patient J.K. ' s hamstring. When massaging Patient J.K. ' s

hamstring, Dr. Kian gradually moved his hand between Patient

J.K. ' s legs, touching her labia.

12. When Patient J.K. was touched, she flinched away,

pulled the sheet down, and said " whoa. " She initially thought

this first touch might have been unintentional. Dr. Kian began

to work on her right foot a while, and then asked Patient J.K. to

flip on to her back so th at he could treat her psoas muscle. She

turned on to her back underneath the sheet.

13. Dr. Kian then moved the sheet, exposing the lower half

of Patient J.K . ' s body. Patient J.K. again pulled the sheet back

over to cover herself. Dr. Kian then readj usted the sheet,

leaving Patient J.K. ' s vaginal area partially exposed. Dr. Kian

then began to massage the psoas muscle, working from the outside

toward the inside of her body. Dr. Kian kept moving his hand

toward the center, between Patient J.K. ' s legs, and he again

touched her labia.

14. Patient J.K. immediately looked up to see Dr. Kian

leaning very closely over her lower body. She pulled the sheet

to cover herself and said " whoa. " Patient J.K. knew at that

point that his exposing her and touching her was intentional

because it was the second time that it had happened, and she was

shocked. Dr. Kian immediately straightened up and walked up

toward Patient J.K. ' s head, saying he wanted to do an adjustment.

He started to massage her left shoulder ar ea, moving toward her

breast. Patient J.K. told him that was okay, that was enough,

and that she needed to go. Dr. Kian said, " Well, let me adjust

your back, lean forward. " Patient J.K. pulled the sheet under

her arms and leaned forward. She did n o t he ar any popping and so

again said that it was time for her to go. Patient J.K.

testified she just wanted to get out of there.

15. She turned her legs off of the bed to sit on its edge.

As soon as she leaned forward, she testified that Dr. Kian was

" litera lly right in my face. " Patient J.K. believed that

Dr. Kian intended to kiss her on the lips. She turned her head

to the left , and he kissed her on the cheek. Patient J.K.

testified that she believed Dr. Kian would have kissed her on the

lips had she not turned her head.

16. Dr. Kian exited the room , and Mr. Yu came in

immediately. Even though her mother ' s dental appointment was

actually later in the afternoon, Patient J.K. told Mr. Yu that

she had to leave to go to it and would not have time for her

acupuncture treatment. She just wanted to go.

17. As soon as Mr. Yu left, Patient J.K. dressed herself

and went to the counter where Dr. Kian, Rob, and Mr. Yu were

standing. She said nothing about what had happened to either Rob

or Mr. Yu. She paid Rob for her massage and Dr. Kian for the

adjustment. Dr. Kian was surprised by the offer to pay, but

Patient J.K. insisted that he accept payment.

18. As Dr. Shreeve testified, the scope of practice for

chiropractors requires that they do not intentionall y expose any

genital area or any part of a patient ' s body that does not need

to be open to the doctor ' s skin - to - skin contact. In treating

Patient J.K., there was no need to expose her buttocks or vaginal

area. As Dr. Shreeve ' s testimony indicated, when p roperly

treating the psoas muscle, a chiropractor ' s hands would not be

near the vaginal area, and there was no justification for

touching Patient J.K. ' s labia in her treatment. Under all of the

circumstances , it is clear that Dr. Kian used the chiropracto r -

patient relationship to engage in sexual activity outside of the

scope of professional practice by intentionally exposing Patient

J.K . ' s buttocks and vaginal area and intentionally touching her

labia.

19. Following the incident, Patient J.K. drove from Jupiter

to her home in Vero Beach, a drive of about an hour and a half.

She reflected on what Dr. Kian had done. When she arrived in

Vero Beach, Patient J.K. called her brother , who was a licensed

chiropractor , and told him what had happened. She also c alled

her Aunt Mary and a family friend , who was an attorney , and asked

what she should do. He told her that she needed to go to the

police. She tried a couple of times to contact Rob to discuss

what had happened. She was unable to communicate with Rob and

then decided not to try to contact him again about the incident.

Patient J.K. decided to report Dr. Kian so that he could not

sexually assault another patient.

20. Patient J.K. drove to the Jupiter Police Department on

April 27, 2017, and reported the incident. An interview was

scheduled for May 4, 2017 , and conducted by Detective Panczak.

Detective Panczak subsequently contacted the Department of

Health.

21. Patient J.K . ' s testimony was clear and convincing , and

she was consistent in her recolle ction in all major respects.

Minor differences in her accounts of events reflected that she

was genuine in her efforts to tell her story as accurately as

possible from her memory on each occasion and did not attempt to

craft or memorize a single version o f events. Patient J.K. did

not struggle to remember the relevant facts. While her testimony

that she believed Dr. Kian intended to kiss her on the lips

following the trigger point release session was credible, it is

possible that Dr. Kian might have inte nded to kiss her on the

cheek for a more benign purpose ; and under all of the

circumstances , it was not clearly and convincingly shown that his

action in kissing her on the cheek constituted sexual misconduct.

22. Dr. Kian denied all allegations except ki ssing Patient

J.K. on the cheek. 1/ His assertions that she was never exposed,

that his hands were never close to Patient J.K. ' s vaginal area,

and that her body shape and positioning would have prevented

exposure of her vaginal area and prevented him from touching her

labia were not credible and are rejected.

23. Revocation of Dr. Kian ' s professional license would

have a very great effect upon his livelihood.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parti es and subject matter of this

proceeding pursuant to sections 456.073(5), 120.569, and

120.57(1), Florida Statutes (2018) .

25. The Department has authority to investigate and file

administrative complaints charging violations of the laws

governing license d chiropractors. § 456.073, Fla. Stat.

26. A proceeding to suspend, revoke, or impose other

discipline upon a license is penal in nature. State ex rel.

Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491

(Fla. 1973). Petitioner must therefore prove the charges against

Respondent by clear and convincing evidence. Fox v. Dep ' t of

Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep ' t of

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

1996)).

27. The clear and convincing standard of proof has been

described by the Florida Supreme Court:

This intermediate level of proof entails both

a qualitative and quantitative standard. The

evidence must be credible; the memories of

the witness 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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1st DCA 1994).

28. Disciplinary statutes and rules " must always be

construed strictly in favor of the one against whom t he penalty

would be imposed and are never to be extended by construction. "

Griffis v. Fish & Wildlife Conser. Comm ' n , 57 So. 3d 929, 931

(Fla. 1st DCA 2011); Munch v. Dep ' t of Prof ' l Reg., Div. of Real

Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992).

29. Res pondent is charged with engaging in sexual

misconduct in the practice of chiropractic medicine, in violation

of sections 456.072(1)(v) and 460.412. At the time of the

incident, section 456.072(1)(v) prohibited health care

professionals from engaging or at tempting to engage in sexual

misconduct as defined in section 456.063. Section 456.063

provided:

Sexual misconduct in the practice of a health

care profession means violation of the

professional relationship through which the

health care practitioner uses such

relationship to engage or attempt to engage

the patient or client, or an immediate family

member, guardian, or representative of the

patient or client in, or to induce or attempt

to induce such person to engage in, verbal or

physical sexual activity outside the scope of

the professional practice of such health care

profession.

30. Section 460.413(1)(ff) provided that discipline could

be imposed for violation of any provision of chapter 460.

Section 460.412 prohibited sexual misconduct in the practi ce of

chiropractic medicine and provided :

Sexual misconduct in the practice of

chiropractic medicine means violation of the

chiropractic physician - patient relationship

through which the chiropractic physician uses

said relationship to induce or attempt to

induce the patient to engage, or to engage or

attempt to engage the patient, in sexual

activity outside the scope of practice or the

scope of generally accepted examination or

treatment of the patient. Sexual misconduct

in the practice of chiropractic med icine is

prohibited.

31. Respondent ' s exposure of Patient J.K. ' s buttocks and

vaginal area and touching of Patient J.K. ' s labia constitute

sexual misconduct in the practice of chiropractic medicine, a

health care profession.

32. Petitioner proved by cl ear and convincing evidence

that Respondent engaged in sexual misconduct in violation of

sections 456.072(1)(v) and 460.412.

33. Penalties in a licensure discipline case may not exceed

those in effect at the time a violation was committed. Willner

v. Dep ' t of Prof 'l Reg., Bd. of Med . , 563 So. 2d 805, 806 (Fla.

1st DCA 1990), rev. denied , 576 So. 2d 295 (Fla. 1991).

34. Sections 456.079(1) and 460.413(4) require the Board of

Chiropractic Medicine to adopt disciplinary guidelines for

specific offenses. Pe nalties imposed must be consistent with any

disciplinary guidelines prescribed by rule. See Parrot Heads,

Inc. v. Dep ' t of Bus. & Prof ' l Reg. , 741 So. 2d 1231, 1233 - 34

(Fla. 5th DCA 1999).

35. Florida Administrative Code Rule 64B2 - 16.003(1)(f)

provided t he following penalty guideline 2/ for violation of

sections 460.412 or 456.072(1)(v) :

From a minimum of one (1) year suspension

followed by two (2) years probation under

terms and condition set by the board to

include supervision and a fine of not less

than $1,000 per violation, to permanent

revocation; from a minimum of letter of

concern and/or a PRN referral for evaluation

up to a maximum fine of $10,000 and/or

permanent revocation.

36. The language of paragraph (f) is ambiguous and

confusing. It create s two different ranges, but fails to

indicate to what offense each range is applicable. A casual

reader might conclude that the first range was applicable to a

violation of section 460.412 and the second to a violation of

section 456.072(1)(v). However, that construction is

inconsistent with the structure of the other paragraphs under

subsection (1) of the rule, such as paragraphs (g), (h), (i),

(k), (m), (n), (o), (p), (q), (r), (t), (w), (z), (aa), (bb),

(dd), or (ll), all of which also list more than o ne statute, but

provide the same penalty range for violation of each, only

delineating multiple ranges for separate subsets of offenses, for

first or subsequent offenses, or for misdemeanor or felony

offenses.

37. The ambiguity in the rule is interpreted in favor of

Respondent. Beckett v. Dep ' t of Fin. Servs. , 982 So. 2d 94, 100

(Fla. 1st DCA 2008). The guideline is therefore interpreted to

range from a minimum of letter of concern and/or a P hysician's

R eferral N etwork referral for evaluation up to a max imum of

permanent revocation.

38. Rule 64B2 - 16.003(2) sets forth factors to be considered

in imposing disciplinary action:

(a) The danger to the public;

(b) The number of unrelated and distinct

offenses;

(c) The actual damage, physical or

otherwise, to the patient(s);

(d) The length of time since the date of the

last violation(s);

(e) The length of time the licensee has

practiced his or her profession;

(f) Prior discipline imposed upon the

licensee;

(g) The deterrent effect of the penalty

impo sed;

(h) The effect of the penalty upon the

licensee ' s livelihood;

(i) Rehabilitation efforts of the licensee

including remorse, restitution, and

corrective actions;

(j) Efforts of the licensee to correct or

stop violations or failure of the licensee to

correct or stop violations;

(k) Related violations against the licensee

in another state, including findings of guilt

or innocence, penalties imposed and penalties

served;

(l) The actual negligence of the licensee

pertaining to any violation;

(m) Any other mitigating or aggravating

circumstances.

39. There is only a single offense, Respondent has

practiced for several years, there is no evidence of any other

incident or prior discipline, and suspension or revocation of

Respondent ' s professional license would have a very great effect

upon his livelihood.

40. On the other hand, the conduct by Respondent was

intentional, and sexual misconduct in the practice of

chiropractic medicine, a health care profession, constitutes a

very great danger to the public .

41. Section 456.072(4) provides that in addition to any

other discipline imposed for violation of a practice act, the

board shall assess costs related to the investigation and

prosecution of the case.

RECOMMENDATION

Based on the foregoing Finding s of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Department of Health,

Board of Chiropractic Medicine, enter a final order finding

Dr. Hamed Kian in violation of sections 456.072(1)(v) and

460.412, Florida Statutes; revoking his license to practice

chiropractic medicine; and imposing costs of investigation and

prosecution.

DONE AND ENTERED this 2 7 th day of July , 2018 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Divisio n 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 2 7 th day of July , 2 018 .

ENDNOTE S

1/ Respondent denied both attempting to kiss Patient J.K. on the

lips and kissing Patient J.K. on the cheek in his Election of

Rights and in Respondent ' s Response to Petitioner ' s First Request

for Admissions. During his May 31, 2018, de position and at

hearing, he admitted to attempting to kiss Patient J.K. on the

cheek and giving her a hug after she was dressed.

2/ In its P roposed R ecommended O rder, Petitioner cited also to

r ule 64B2 - 16.003(1)(ll), which establishes a penalty range for

generally violating provisions of chapters 456 and 460 or Board

rules. Since paragraph (1)(f) provides a penalty guideline

specifically applicable to the sexual misconduct provisions and

is no more stringent, it controls.

COPIES FURNISHED:

Mary A. Igl ehart, Esquire

Derrick Jovan McBurrows, Esquire

John A. Wilson, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C65

Tallahassee, Florida 32399

(eServed)

David W. Spicer, Esquire

Jonathan Wick Chambers, Esquire

Law Office s of Spicer & Chambers, P.A.

8895 North Military Trail , Suite 302E

Palm Beach Gardens, Florida 33410

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Anthony B. S pivey, DBA, Exec utive Dir ector

Board of Chiropractic Medicine

Department of Health

4052 Bald Cypress Way, Bin C 0 7

Tallahassee, Florida 32399 - 3257

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions withi n

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.