18-005636PL Department Of Health, Board Of Chiropractic Medicine vs. Enrique Rodriguez, D.C. Status: Closed Recommended Order on Friday, March 29, 2019.

Summary: Provocative or consensual actions on part of patient not a defense for chiropractor who engaged in sexual activity with patient. Serious nature of offense and failure to show rehabilitation or remorse warranted revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

CHIROPRACTIC MEDICINE,

Petitioner,

vs. Case No. 18 - 5636PL

ENRIQUE RODRIGUEZ, D.C.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge F. Scott Boyd, of the Division of

Administrative Hearings, conducted the final hearing in this case

on December 10, 2018, and January 22, 2019, by video

teleconference at sites in Lauderdale Lakes and Tallahassee,

Florida.

APPEARA NCES

For Petitioner: Kimberly Lauren Marshall, Esquire

Octavio Simoes - Ponce, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallah assee, Florida 32399

For Respondent: Michael D. Weinstein, Esquire

Michael D. Weinstein, P.A.

12 Southeast 7th Street, Suite 713

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE S

The issues in t his case are whether Respondent engaged in

sexual misconduct in the practice of chiropractic medicine, in

violation of section 460.412, Florida Statutes; and, if so, what

is the appropriate sanction.

PRELIMINARY STATEMENT

On December 15, 2016, the Florida Department of Health

(Petitioner or Department) served an Administrative Complaint

before the Board of Chiropractic Medicine (Board) against

Enrique Rodriguez, D.C. (Respondent or Dr. Rodriguez).

Dr. Rodriguez disputed material facts alleged in the compla int

and requested an administrative hearing. The case was forwarded

to the Division of Administrative Hearings (DOAH) and set for

hearing as DOAH Case No. 18 - 2472PL. On August 30, 2018,

jurisdiction was relinquished back to the Board for the conduct

of a section 120.57(2) , Florida Statutes, hearing in response to

a joint motion by the parties. That same day, the First Amended

Administrative Complaint was filed. On November 2, 2018, the

case was reopened as DOAH Case No. 18 - 5636PL and set for hearing

on December 10, 2018. The hearing was partially held on that

date and was c oncluded on January 22, 2019.

At the hearing, Petitioner offered two exhibits: P - A

and P - B, which were admitted with the understanding that

Exhibit P - B, a police report from the Brow ard County Sheriff ' s

Office (BCSO), was hearsay, except as to statements made by

Dr. Rodriguez, and that hearsay could not in itself support a

finding of fact but could only be used to supplement or explain

other competent evidence. Petitioner also presen ted the

testimony of Patient D.H., a patient of Dr. Rodriguez; Ms. J . - H.,

the mother of Patient D.H.; Detective Sylvia Wernath of the BCSO;

and Mr. Kurt Rhodes, a DNA analyst at BCSO. Respondent offered

two exhibits: R - 2 and R - 3, which were admitted and late - filed

electronically on March 28, 2019 . Respondent testified on his

own behalf and presented the testimony of three persons who

worked at his office during the time of the allegations:

Ms. Cassandra Izaguirre , Ms. Jessica Rosario , and Ms. Lazara

San chez.

The first volume of the two - volume Transcript was filed with

DOAH on February 12, 2019, and the second on February 22, 2019.

Petitioner timely filed a Proposed Recommended Order ; Respondent

filed a Proposed Recommended Order shortly after the filin g

deadline. No prejudice to Petitioner is found , and both were

considered in the preparation of this Recommended Order.

Citations to the Florida Statutes and the Florida

Administrative Code are to the versions in effect in June 2012,

the time of the all eged offense, except as otherwise indicated.

FINDING S OF FACT

1. The Board is the state agency charged with regulating

the practice of chiropractic medicine in the S tate of Florida,

pursuant to section 20.43 and chapters 456 and 460, Florida

Statutes.

2. At all times material to this proceeding, Dr. Rodriguez

was a licensed chiropractor in the State of Florida, having been

issued license number CH 9812 on September 17, 2009.

3. Dr. Rodriguez ' s address of record with the Department is

1840 N orthwest 122 nd Terrace, Pembroke Pines, Florida 33026.

4. Patient D.H. was a 22 - year - old patient of Dr. Rodriguez.

She had been referred to Dr. Rodriguez by her mother, also a

patient.

5. Patient D.H. was the one who suggested initial treatment

with Dr. Rodrigue z. She had seen him about six times over a

period of two months.

6. On or about June 6, 2012, Patient D.H. presented to

Dr. Rodriguez for chiropractic treatment.

7. Dr. Rodriguez began treating Patient D.H. in one of the

treatment rooms in his practice .

8. As she was turning over on the examination table,

Patient D.H. ' s left breast was exposed. Dr. Rodriguez commented

on her breast being exposed. Patient D.H. replaced her breast

under her tank top. As Dr. Rodriguez continued with his

treatment, her breast was again exposed, prompting Dr. Rodriguez

to say that Patient D.H. was getting him excited, or words to

that effect. Dr. Rodriguez touched both of her breasts with his

hands. He then kissed her breasts. Patient D.H. testified that

she was in sh ock because his actions were sudden and caught her

off guard. Dr. Rodriguez left the room.

9. Dr. Rodriguez ' s staff placed Patient D.H. in a massage

chair in a common area of the office. After Patient D.H. stated

that she still had pain, she was taken into another room for an

additional treatment on her shoulder. In the new room, Patient

D.H. lay down on the treatment table. After placing some patches

on her shoulder, Dr. Rodriguez again touched her breasts. He

placed his hand inside her pants and i nserted two fingers

into her vagina. She testified that she told him to stop.

Dr. Rodriguez again told her how she excited him. Patient D.H.

later testified that she was in shock and unable to react.

Dr. Rodriguez and Patient D.H. made a " pinky promise " not to say

anything, and then Dr. Rodriguez washed and dried his hands. He

placed a Chinese herbal remedy above her left breast, told her to

sleep, and left the room. When he returned, Patient D.H. began

crying. Dr. Rodriguez gave her a hug and kissed her on the

cheek.

10. While Patient D.H. was in a treatment room with

Dr. Rodriguez, he engaged in sexual contact with her which was

outside the scope of her medical treatment.

11. Other than as described, Patient D.H. made no complaint

to Dr. Rodriguez , nor did she complain to an office staff member.

12. Patient D.H. left Dr. Rodriguez ' s office and started

driving to her cousin ' s house. She then pulled over and called

the police and her mother to tell what had happened.

13. Patient D.H. ' s mother te stified that she received

a phone call from her daughter about 5:00 p.m., saying that

Dr. Rodriguez had molested her, and immediately went to meet her.

Patient D.H. ' s parents took her to the Cooper City district

office of the BCSO to report the crime.

14. On June 11, 2012, in conjunction with a criminal

investigation by the BCSO, Patient D.H. made a controlled

telephone call to Dr. Rodriguez while in the presence of a

detective. During the conversation, Dr. Rodriguez said that he

did not want to discu ss things on the telephone because he could

not be sure he was n o t being recorded, and asked Patient D.H. to

come see him at the office. Patient D.H. said she would be

uncomfortable seeing him and that i s why she had called on the

telephone. Their conver sation included words to the following

effect:

Patient D.H.: Do you . . . do you really do

this to your other patients?

Dr. R . : I don ' t. That ' s why I ' m . . . I

couldn ' t sleep this weekend. I . . . I . . .

I ' m exhausted. I ' m physically and mentally

ex hausted.

Patient D.H.: But why me?

Dr. R.: I don ' t know. It just happened,

hon. That ' s what I ' m telling you, it just,

it just happened.

Patient D.H.: I just want to know why me?

Dr. R.: I don ' t . . . I don ' t know . . . I,

I just don ' t know. Um . . . you know, and I

wasn ' t sure because you know, um . . . you

know you, you um, when you came about, you

showed me your breasts, um . . . .

Patient D.H.: It wasn ' t . . . you know, it

was an accident, I wasn ' t trying to

personally . . . .

Dr. R.: No, but you know, but when you did

the other part, you know, then I thought that

that was . . . um .

Patient D.H.: What other part are you

talking about?

Dr. R.: No dear, no, your breasts, and that

was an invitation . . . or an open, you know,

" here " and f or some reason we were talking

about stuff, it ' s a blank to me. I do not

remember . . . if you asked me . . . it was

just, I do not remember, um, how exactly

everything happened, but it just happened.

Patient D.H.: Don ' t you remember . . .

don ' t you re member putting your hand on my

breasts and putting your two fingers in my

vagina? Do you remember that?

Dr. R.: Yes.

Patient D.H.: Yes, you do remember that,

right?

Dr. R.: Hon, I don ' t even want to, I don ' t

even want to go there. I don ' t even want to

be going there, because I didn ' t feel

comfortable with that at all.

Patient D.H.: How, how do you think I feel?

I ' m not comfortable at all myself.

15. Dr. Rodriguez later engaged the services of a forensic

audio engineer who generated an enhanced audio version of the

above - described controlled telephone call. During this call,

Detective Wernath ' s voice can be heard in the background ,

coaching Patient D.H. through portions of the conversation .

16. The criminal investigation also found that a DNA s ample

from a buccal swab taken from Dr. Rodriguez matched DNA collected

from Patient D.H. ' s breast. As Mr. Rhodes testified, the chance

of a false positive was less than one in 30 billion.

17. Dr. Rodriguez has admitted the sexual activity, while

maintai ning that his conduct was invited by Patient D.H. ' s

actions. Specifically, Dr. Rodriguez testified that he believed

that Patient D.H. intentionally made her breast " slip out " of her

tank top several times, that it was not an accident. He

testified that w hen he told her that he could see her exposed

breast, she responded, " Oh, I don ' t mind. " He testified that

Patient D.H. was being flirtatious and , by her provocative

actions , was encouraging his behavior.

18. Dr. Rodriguez ' s testimony that he believed P atient D.H.

encouraged his sexual misconduct is supported by his statements

directly to Patient D.H. on the recorded call, when he thought no

one else was listening, and is credible. But regardless of what

Dr. Rodriguez may have perceived, or the degree, if any, to which

Patient D.H. was complicit in Dr. Rodriguez ' s sexual misconduct,

her involvement would not excuse his actions. A chiropractor is

not free to engage in sexual activity with his patient even if

the patient encourages or consents to it. The re was scant

evidence in the record to suggest that Dr. Rodriguez accepts or

understands this professional responsibility.

19. Patient D.H. ' s testimony as to Dr. Rodriguez ' s actions

was clear and convincing. Her testimony as to his actions is

credited an d is confirmed by his own statements in the controlled

telephone call and at hearing.

20. Respondent ' s touching of Patient D.H. ' s breasts with

his hand and mouth and insertion of his fingers into her vagina

constituted engaging in sexual activity with a p atient and was

sexual misconduct in the practice of chiropractic medicine.

21. Patient D.H. engaged in a civil lawsuit against

Dr. Rodriguez . She has since executed a release in that case.

22. Dr. Rodriguez has not previously been subject to

disciplinar y action by the Board.

23. Dr. Rodriguez credibly testified that he has installed

video cameras in the treatment rooms to ensure that there will be

no further incidents. He noted that the purpose of these cameras

was to protect him.

24. Dr. Rodriguez de monstrated little or no remorse, the

focus of his spirited testimony being directed towards the

provocative conduct of Patient D.H., not his own inappropriate

actions.

25. Revocation or suspension of Dr. Rodriguez ' s

professional license would have a great effect upon his

livelihood.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

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

120.57(1), Florida Statutes (2018) .

27. The Department has authority to investigate and file

administrative complaints charging violations of the laws

governing licensed chiropractors. § 456.073, Fla. Stat. (2018).

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

discipline upon a license is p enal 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)).

29. 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 quant itative 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 tr ier of

fact without hesitancy.

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

30. Disciplinary statutes and rules " must always be

construed strictly in favor of the one against whom the penalty

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

Griffis v. Fish & Wildlife Conser. Comm ' n , 57 So. 3d 92 9, 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).

31. At the time of the incident, section 460.413(1)(ff)

provided that discipline could be imposed for v iolation of any

provision of chapt er 460. Respondent is charged with engaging in

sexual misconduct in the practice of chiropractic medicine, in

violation of section 460.412, which provided:

Sexual misconduct in the practice of

chiropractic medicine. Ï - The chiropractic

physician - patient rel ationship is founded on

mutual trust. 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 ind uce 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 medici ne is prohibited.

32. Respondent ' s touching of Patient D.H. ' s breasts with

his hand and mouth and insertion of his fingers into her vagina

was engaging in sexual activity with a patient and constitutes

sexual misconduct in the practice of chiropractic med icine.

33. Respondent maintains that Patient D.H. intentionally

exposed herself and invited or welcomed his actions.

Respondent ' s statements during the controlled telephone call,

when he was talking, as he supposed, only with Patient D.H., are

consiste nt with this position. But even if Patient D.H. did

invite his conduct, this would not constitute a defense to the

charges. Respondent ' s misstatement of the issue in this case as

whether he engaged in " non - consensual " sexual activity is

inapposite , and h is spirited focus on Patient D.H. ' s actions

reflects a serious misunderstanding of his professional

responsibilities. Respondent ' s sexual activity with Patient D.H.

was outside of the scope of the practice of chiropractic medicine

and outside of the scope of generally accepted examination or

treatment of Patient D.H.

34. Petitioner proved by clear and convincing evidence

that Respondent engaged in sexual misconduct in violation of

section 460.412.

Penalty

35. 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).

36. Sections 456.079(1) and 460.413(4) require the Board to

adopt disciplinary guidelines for specific offenses. Penalties

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).

37. Fl orida Administrative Code Rule 64B2 - 16.003(1)(f)

provided the following penalty guideline 1/ for violation of

section 460.412, or for violation of a similar provision, not

charged, section 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 f ine of $10,000 and/or

permanent revocation.

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

confusing. It creates two different ranges, but fails to

indicate to what offense each range is applicable. A casual

reader might conclude that the first ran ge was applicable to a

violation of section 460.412 and the second to a violation of

section 456.072(1)(h). 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 one statute, but provide the same

penalty range for violation of each, only delineating multiple

ranges for separate subsets of offenses, f or first or subsequent

offenses, or for misdemeanor or felony offenses.

39. 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 PRN referral

for evaluation up to a maximum of permanent revocation.

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

in determining the appropriate disciplinary action to be imposed

and in going outside of the disciplinary guidelines:

(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 violat ion(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

imposed;

(h) The effect of the penalty upon the

licensee ' s livelihood;

(i) Re habilitation 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.

41. There is only a sin gle offense, 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. Respondent has taken some

actions, including the installatio n of cameras, to reduce the

likelihood that there will be future offenses. Respondent also

believed that Patient D.H. invited his misconduct. Although not

a defense, this provides slight mitigation. On the other hand,

this serious conduct by Respondent was intentional , and he has

demonstrated little or no remorse for his actions.

42. The aggravating and mitigating circumstances present in

this case do not warrant departure from the wide range of

discretion already afforded by the penalty guidelines for the

offense of sexual misconduct.

43. Section 456.072(4) provided 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 Findings 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. Enrique Rodriguez in violation of section 460.412, Florida

Statutes; revokin g h is license to practice chiropractic medicine;

and imposing costs of investigation and prosecution.

DONE AND ENTERED this 29th day of March , 2019 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative La w 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 29th day of March , 2019 .

ENDNOTE

1/ 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) pro vides a penalty guideline

specifically applicable to the sexual misconduct provisions and

is no more stringent, it controls.

COPIES FURNISHED:

Kimberly Lauren Marshall, Esquire

Octavio Simoes - Ponce, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Michael D. Weinstein, Esquire

Michael D. Weinstein, P.A.

12 Southeast 7th Street , Suite 713

Fort Lauderdale, Florida 33301

(eServed)

Louise Wilhite - St Laurent, Interim General Couns el

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

Anthony B. Spivey, DBA, Executive Director

Board of Chiropractic Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 07

Tallahas see, Florida 32399 - 3257

(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 ag ency that

will issue the Final Order in this case.