20-000052PL Department Of Health, Board Of Chiropractic Medicine vs. Jeremiah Lee Kenney-Wright, D.C. Status: Closed Recommended Order on Wednesday, July 22, 2020.

Summary: Respondent committed sexual misconduct while treating a patient. Recommend license revocation.

S TATEMENT OF T HE I SSUE S

The issues in this case are whether Respondent committed sexual

misconduct as charged in the Administrative Complaint; and, if so, what

penalty should be imposed.

P RELIMINARY S TATEMENT

On November 12, 2019, the Department of Health (Department ) filed an

Administrative Complaint before the Board of Chiropractic Medicine (Board)

against Jeremiah Lee Kenney - Wright, D.C. (Respondent). Respondent was

charged with comm itting sexual misconduct while treating a patient

identified as W.H., in violation of sections 460.412 and 460.413(1)(ff), Florida Statutes.

1 Respondent timely filed a Petition for Hearing Involvi ng Disputed

Issues of Material F act in response to the Admin istrative Complaint.

On January 6, 2020, the Department transmitted the Administrative

Complaint and Petition for Hearing to DOAH for assignment of an

administrative law judge to conduct the requested hearing.

The final hearing scheduled for January 29 , 2020, was continued at

Respondent’s request for good cause and was re scheduled for April 14, 2020.

The final hearing was continued again, at the request of Respondent, for good cause shown, and rescheduled before the undersigned for May 26, 2020.

Prior to the hearing, the parties filed a Joint Pre - hearing Stipulation, in

which they identified their proposed witnesses and exhibits, set forth their

objections to the other party’s proposed exhibits, and agreed to several statements of fact and law. The part ies’ agreed facts have been incorporated

in the Findings of Fact below to the extent relevant.

1 All references to statutes and rules are to the 2015 version unless otherwise indicated.

Both parties filed motions in limine a few days before the hearing, which

were addressed on the record at the outset of the hearing.

At the hearing, the Depart ment presented the live testimony of Darrel T.

Mathis, D.C., who was accepted as an expert in c hiropractic medicine. The

Department also offered testimony by video deposition of W.H. The

Department’s exhibits 1 through 7 were admitted. Respondent testified on his

own behalf and also presented the live testimony of Tara Wright, D.C., by

Zoom conference on May 29, 2020. Respondent offered testimony by

deposition of Toka Culbertson . Respondent’s E xhibits 4 through 6 were

admitted.

The three - volume Transcript of the hearing was filed on July 10, 2020.

Both parties timely filed Proposed Recommende d Orders (PROs) on July 25,

2020 , which have been considered in the preparation of this Recommended

Order.

F INDINGS OF F ACT

1. The Department of Health is the s tate a g ency charged with regulating

the practice of chiropractic medicine within the State of Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes.

2. At all times material to this matter, Respondent was licensed as a

chiropractic physic ian in the State of Florida, having been issued license number CH 11126 on February 17, 2014.

3. Respondent, for all times material to this case, worked at and owned

Wright Choice Chiropractic, located at 70 East 1st Street, Corning, New York 14830. Respo ndent and his wife, Tara Wright, D.C., were the only

chiropractors who practiced at Wright Choice Chiropractic.

4. W.H. presented to Wright Choice Chiropractic in early May 2016,

seeking to enroll in a nutritional weight - loss program offered by Responde nt.

5. On May 11, 2016, W.H. went to Wright Choice Chiropractic to learn

about Respondent’s weight - loss program. She was wearing shorts and a

t - shirt. W.H. enrolled in the weight - loss program, and Respondent took

W.H.’s body measurements . This was the fi rst time W.H. and Respondent

met. The appointment took no longer than 30 minutes.

6. Thereafter, W.H. called Wright Choice Chiropractic to inquire about

receiving chiropractic treatment to address low back and hip pain. W.H. was

assigned to Respondent for a chiropractic appointment.

May 19th Office Visit

7. On May 19, 2016, W.H. went to Wright Choice C hiropractic, at

approximately 4:3 0 p.m. , to receive chiropractic treatment for her complaints

of low back and hip pain. Respondent and Dr. T ara Wright were a t the front

desk when W.H. arrived.

8. Respondent examined W.H. in the examination room. In the

examination room, Respondent told Patient W.H. that she was “beautiful,”

asked her if she was single, and asked her if she “ever went out?” W.H.

replied that sh e does not usually go out because she has kids. At the time,

W.H. thought Respondent’s comment s and questions about her personal lif e

were awkward, but she was not offended.

9. Respondent's findings included low back pain that was reproduced with

pressur e, left hip pain, some misalignment, and muscle ache or muscle pain.

Respondent recommended soft tissue work with the Graston technique and a

chiropractic adjustment. The Graston technique utilizes stainless steel tools

to apply pressure to joints and tiss ues to promote healing by causing a micro -

trauma or an inflammatory response. W.H. consented to the recommended

procedures.

10. Respondent led W.H. to the treatment room and gave her a gown to

change into. Respondent left the room and Patient W.H. change d into the

gown, leaving on her underwear and bra. The gown was tied in the back.

11. Respondent returned to the examination room after W.H. changed into

the gown. W.H. testified that she heard Respondent close the door but she

could not see whether it was , in fact, closed. Other witnesses testif ied,

credibly, that the door remained slightly ajar , and that testimony is accepted

here over that of W.H. , because she could not see whether the door was open

or closed. Although the door was ajar, the patient on t he table was not visible

to someone stan ding in the hallway, outside Respondent’s treatment room.

12. Respondent placed W.H. on a flexion - distraction chiropractic table.

The table included Velcro straps for the patient’s ankles, which were applied

to W.H. without objection. Respondent then performed the Graston

technique, using a series of stainless steel tools (that resemble a handlebar

and large butter knife) to glide over the muscles from mid - back to lower back,

at the top part of the glutes. Respondent applied grapeseed oil to W.H.’s skin

to help the tools glide over the skin. Respondent stood at the side of the table

when performin g the Graston technique on W.H. The procedure was

performe d on both sides of W.H.’s back. Respondent told W.H. to expect

bru ising on her back in the area where the Graston tools had been applied.

13. Respondent performed a chiropractic adjustment on W.H. using a

Gonstead side posture adjustment and a Thompson Drop. Thi s entailed

popping up and dropping a section of the table to adjust the sacrum. After the

treatments were finished, W.H. paid her co - pay and scheduled a follow - up

appointment for May 24, 2016 , before leaving th e office.

May 24th Office Visit

14. On May 24, 2016, W.H. returned to Wright Choice Chiropractic at

appro ximately 4:30 p.m., for a follow - up chiropractic appointment. She was

greeted by Dr. Tara Wright and Respondent at the front desk. No one else

was present in the office at that time.

15. W.H. changed into a gown, as she had done during her last visit,

out side of Respondent’s presence. The g own tied in the back . The door to the

treatment room was ajar as it had been during her last visit.

16. Respondent repeated the Graston procedure and chiropractic

adjustment that he performed on May 19, 2016.

The Alleg ed Sexual Misconduct

17. W.H. testified that Respondent also asked her out on a date, made

multiple sexually - explicit comments to her , and made sexual contact with her

in two separate ways during the May 24, 20 16 , office visit.

18. According to W.H., at th e beginning of the treatment, Resondent

instructed her to bend over, and she complied, believing it was necessary for

chiropractic treatment. Respondent then grabbed W.H.’s hips and thrust his

groin into her buttocks in a humping motion. Surprised, W.H. ju mped up

straight. Respondent snickered and told W.H. he was “just play in.”

19. W.H. testified that Respondent commented to her about the fact that it

was her birthday and again told her she was beautiful. W.H. testified that Respondent asked her “what ki nd of guys [she] was interested in …” and

asked if she would go out for drinks with him that night. W.H. told

Respondent she could not go out for a drink because she was on the weight -

loss program , and because Respondent was married. Respondent told W.H.

t hat his wife was pregnant and that she would not have sex with him.

Respondent told W.H. that he was going to get her to go over to the “dark

side . ” Respondent is African American and W.H. , who is Caucasian,

interpreted this comment to mean that Respondent would convince her to

date or hav e sex with an African American. W.H. also testified that

Respondent leaned forward and whispered in her ear that she had a beautiful

“ass” and that he wanted to bury his face in it.

20. Finally, W.H. testified that n ear th e end of the treatment, Respondent

had W.H. slide back on the table while her feet were still strapped to the

table , her buttocks was in the air , and her face was down. Respondent slid

W.H.’s underwear down halfway on her buttocks and touched the top of he r

intergluteal cleft with a Graston tool , using enough pressure to separate the

intergluteal cleft down her entire buttocks to the front of her vagina in one

continual motion. W.H. told Respondent to “ stop ” several times, saying it

louder each time. Respon dent then stopped and said “oh, you’re serious” and

“snickered.”

21. When the appointment was over, W.H. got dressed, went to the front

desk, and paid her co - pay . W.H. testified that when she got to the door to exit

the office , Respondent pointed to the p hone that was in his hand and

mouthed the words, “can I call you” or “can I text you” or other words to that

effect. W.H. did not respond and left the office.

22. W.H. subsequently canceled her next appointment with Respondent

and never returned to Wright Choice Chiropractic.

23. W.H. testi fi ed that in early June 2016, Respondent called her and

asked if he had made her uncomfortable and if she was going to return for

another appointment. W.H. hung up on Respondent.

24. Respondent denies that he made any s exually - explicit comment to

W.H., denies that he thrust his groin into her buttocks in a humping motion,

and denies that he touched W.H.’s intergluteal cleft and vagina with a

Graston tool.

Respondent’s Witnesses

25. Dr. Tara Wright’s treatment room is nex t door to Respondent’s

treatment room. Dr. Tara Wright testified that the walls in the Wright Choice Chiropractic office were “paper thin,” and that she could hear people

talking in Respondent’s treatment room when she was in her treatment

room, or in any other part of the office. Although she could hear people

talking, the words spoken were unintelligible.

26. Dr. Tara Wright testified that on May 24, 2016 , she was treating

another patient in her treatment room next door when Respondent treated

W.H. Dr. Tara Wright testified that she did not hear W.H. say “stop” or “no”

or shou t or yell at any time during her May 24, 2016 , office visit.

27. Dr. Tara Wright testified that on May 24, 2016, she entered

Respondent’s trea tment room after she finished with he r patient , and

Respondent was still performing the Graston technique on W.H. when she

entered . Dr. Tara Wright testified that she did not see anything unusual, and

W.H. did not appear to be upset. Dr. Tara Wright testified that she engaged

in small talk wi th W.H. after she entered Respondent’s treatment room,

including asking her whether she was going out fo r drinks later to celebrate

her birthday.

28. Dr. Tara Wright testified that she checked W.H. out at the front desk

after her appointment was over, and scheduled another appointment for

May 31, 2016 . She testified that W.H. did not appear to be stressed or upset,

and did not complain about her visit that day.

29. Dr. Tara Wright appeared credible when she testified . That said,

Dr. Tara Wright has a pers onal and financial stake in the outcome of this

case; she is married to Respondent , and Respondent provides approximately

40 percent of the household inco me as a practicing chiropractor. F or these

reason s , W.H.’s testimony is accepted over th e testimony of Dr. Tara Wright

where there is conflict.

30. E ven if all of Dr. Tara Wright’s testimony was completely accurate, it

does not rule out sexual misconduct in this case. Dr. Tara W right testified

that she could hear talking from Respondent’s treatment room , but admits

the words spoken were unintelligible. W.H. testified that Respondent

whispered inappropriate comments in her ear; Dr. Tara W right c ould not

have heard a whisper. W.H. told R espondent to “stop” three times; she did

not claim that she yelled “stop .” Dr. Tara Wright did not testify that she was

in Respondent’s treatment room the entire time, so the inappropriate conduct

could have occurred before she entered.

31. Respondent also presented the testimony of T olka C ulbertson , the

mother of the patient Dr. Tara Wright treated at the same time W.H. was

being treated by Respondent on M ay 24 , 2016 . Ms. Culbert s on stood in the

hallway, outside of Respondent’s treatment room during her daughter’s

appointment. Ms. Culbert s on could hear a male and female voice in

Respondent’s treatment room, but did not testify that she could hear what

was said. The door to Respondent’s treatment room was ajar, but she could

no t see the people inside . Like Dr. Tara Wright, Ms. Culbertson never heard

anyone from Respondent’s trea tment room say “stop,” or shout.

32. Ms. Culbertson’s testimony does not rule out sexual misconduct in this

case. She could not see into Respondent’s treatment room, and, like Dr. Tara

Wright, could not hear what was said in Respondent’s treatment room.

F inally, Ms. Culber tson was not standing outside Respondent’s treatment

room duri n g W.H.’s entire visit. She went in and out of Dr. Tara Wright’s

treatment room , and her daughter’s visit ended before W.H.’s visit concluded.

Testimony of Dr. Mathis

33. The Department offered expert testimony from Darrel Thomas Mathis,

D.C. , to prove there was no medical reason for Respondent to thrust his groin

into W.H. or touch her intergluteal cleft and vagina with a Graston tool. Dr. Mathis’ s testimony in this regard is accepted.

2

The Controlled Call

34. W.H. reported Respondent’s conduct during the May 24, 2016 , visit to

the Corning Police Department in e arly June 2016. On June 27, 2016 , at

12:05 p.m., W.H. called Respondent on a controlled call, at the request of law

2 this issue is unnecessary because Respondent did not attempt to Expert testimony on

justify the inappropriate touching as a necessary component of the chiropractic treatment s

he offered to W.H.; rather, he denied that any of it happened.

enforc ement, to discuss Respondent’s behavior during W.H.’s May 24, 2016,

office visit . Respondent was not aware that the call was being recorded by

law enforcement.

35. The following is a verbatim transcript of the controlled call, with all

inaudible p ortions of the call so noted:

Dr. Wright: Hello

W.H.: Hi, Dr. Jay.

[ 3 ] This is [W.H.].

Dr. Wright: Hey [W.H.], h ow are you?

W.H. : I’m alrigh t, how are you?

Dr. Wright: I am doing just fine. What can I do for

you (inaudible)?

W.H.: Do you have a few minutes? I just need to talk to you about something.

Dr. Wright: Yes, ma'am, go right ahead.

W.H.: Okay. I am just -- I need to talk about what

happened last time we were at the office.

Dr. Wright: Absolutely.

W.H.: I haven't had -- it's been kind of driving me

crazy.

Dr. Wright: Yeah .

W.H.: I just want to know -- I guess the -- I guess I

want to know why you were acting the way you were with me.

Dr. Wright: I don't know -- and I do apologize. It

was very unprofessional of me, and I promise you th at would not happen again. (Inaudible) made you

uncomfortable and I am deeply, deeply, deeply

3 Resp ondent was known to his patient s as “Dr. Jay.”

sorry for anything that happened that made you

feel uncomfortable. So I am really sorry, [W.H.].

W.H.: I know. I just -- like I said you did -- I mean,

you put y our knuckle down my rear to my vagina,

and it is like why would you -- why did you pick me

to do that? That is all I keep thinking of, like why

did you pick me to make all those appropriate

comments. And I kept saying, you are married.

Why did you do that?

Dr. Wright: Well, I did not -- and I did not do any of

that. It was a tool and very, very unprofessional. I

didn't go down to your vagina, but I really am

sorry.

W.H: Yes, you did actually, but that is --

Dr. Wright: Okay, well I –

W.H.: -- neither h ere nor there.

Dr. Wright: I -- I am really, really, really extremely

sorry and it was really unprofessional of me and --

and I just -- my mind was not in the right plac e and

I just can't express to you how deeply sorry I am --

and -- and I do apologize for any of that.

W.H.: So what am I --

Dr. Wright: And I know an apology doesn't really

do it justice and it shouldn't never happen. It will never happen again and like I don't -- I am just

really sorry.

W.H.: I know. I just -- I guess what is driving m e

crazy is why me. Why did you pick me? I am like 48 years old and I am -- it is like you are young and

you have all these other patients that come in there.

Dr. Wright: I -- I -- I don't have an answer for you,

[W.H.], I really don't. I am so, so horribl e, I am so

horrible for that and I tried to call and make it

right, and I when I called you before I kind of got a

sense of just uncomfortableness and I didn't want to stir it up and I -- I don't have an answer for you.

I am just really sorry that that hap pened.

W.H.: All right. Well, you know I am not going to be

coming back, because like I said I really thought that you were a really good doctor and then you

just took it way too far.

Dr. Wright: Yes, ma'am.

W.H.: And I don't understand why you did that and

it really -- like I said, it was extremely

inappropriate.

Dr. Wright: Yes, ma'am, I am sorry about that. Okay.

W.H.: All right.

Dr. Wright: I hope -- I wish you well and -- and if

you do need me I can promise you that nothing like

that will ever, e ver happen again, and I will have

someone come in with me when I treat you or I can

just give you to Dr. Tara and that can work from there. And again, I do apologize for that. It was really out of my -- like way out of my character and

I am not like that. I don't know what happened; I

don't know why it happened. It is way out of my character.

W.H.: I know, but that is what you say, but I also

know that you kind of been extremely flirty with

other patients, too. I just don't know if you took it that far.

D r. Wright: I am sorry, you say you don't know

what now?

W.H.: That you have been like flirty with other patients and said inappropriate things to other patients as well. I just don't know. Like I said, I

don't know if you took it as far with them as you

d id me.

Dr. Wright: (Inaudible).

W.H.: All right. All right, thank you. I guess thank you for the closure. I think that is what I needed, I just needed to hear an apology.

Dr. Wright: (Inaudible). Like right now (inaudible)

and I am really sorry. Is ever ything okay now?

W.H.: Yes, I think so, I just needed an apology

because it has been driving me crazy. I can't like

sleep or anything.

Dr. Wright: Yes mam, I am really sorry.

W.H.: Thank you.

Dr. Wright: (Inaudible). If there is anything you need from me please just let me know. I am terribly

sorry.

W.H.: Yes.

Dr. Wright: I am terribly sorry.

W.H.: Uh - huh.

Dr. Wright: You have a good day.

W.H.: You too, bye.

Female Voice: This concludes the recording portion of the [W.H.] talking to Jeremiah Wrig ht. The time

is now 12:05 p.m. on June 27, 2016, and this concludes the controlled call between [W.H.] and

Jeremiah Wright.

36. On July 5, 2016, following the controlled call, Respondent added a note

to W.H.’s chart for the stated purpose of documenting w hat was said during

the controlled call. In this note, Respondent recites , generally , W.H.’s

complaint was about inappropriate touching and denies those allegations.

Respondent also states in the note that he:

apologized for [W.H.’s] uncomfortableness du ring

the treatment and the overall discomfort [W.H.]

feels that she had during her visit but I completely deny that accusation that I have touched my patient improperly and the only thing that I would

regret is the engaging in some small talk the

patient h erself initiated.

Conspicuously absen t from the note are the incriminating statements

Respondent made during the controlled call, after W.H. accused him of

improperly touching her buttocks and vagina, including:

I am really, really, really extremely so rry and it

was really unprofessional of me and -- and I just --

my mind was not in the right place and I just can't

express to you how deeply sorry I am -- and -- and I

do apologize for any of that.

* * *

And I know an apology doesn't really do it justic e

and it shouldn't never happen. It will never happen again and like I don't -- I am just really sorry.

* * *

I -- I -- I don't have an answer for you, [W.H.], I

really don't. I am so, so horrible, I am so horrible

for that and I tried to call and make i t right, and I

when I called you before I kind of got a sense of just

uncomfortableness and I didn't want to stir it up and I -- I don't have an answer for you. I am just

really sorry that that happened.

* * *

I hope -- I wish you well and -- and if you do need

me I can promise you that nothing like that will

ever, ever happen again, and I will have someone

come in with me when I treat you or I can just give

you to Dr. Tara and that can work from there. And

again, I do apologize for that. It was really ou t of

my -- like way out of my character and I am not like

that. I don't know what happened; I don't know

why it happened. It is way out of my character.

37. Respondent offered multiple excuses for why these damning

statements do not mean what they say. F irst, Respondent claims he profusely

apologized to W.H. without knowing what he was really apologizing for , and

that he apologized to her because he bruised her when he applied the Graston

technique during the M ay 19, 2016 , office visit . Setting aside that these two

excuses are somewhat contradictory, the factual predicate for both is patently

false. Respondent stated that his conduct was “unprofessional” and “way out

of [his] character” after W.H. made it clear that she was accusing him of

inappropriately touching her buttocks and vagina. W.H. did not complain

about bruising from the Graston technique or anything else that happe ne d

during the May 19, 2016, office visit.

38. At the hearing, Respondent also claimed he was an abused child who

learned to say an ything to please people , and that he apologized to W.H.

because he had started a new business and did not want to lose a patient. If

true, these circumstances could provide a credible expla n ation for a denial

accompanied by a generic apology . B ut Responden t did not offer W.H. a

generic apology ; he admitted that his conduct was “really unprofessional,”

“horrible,” and “way out of [his] character.” Likewise, Respondent offered no

credible explanation for why he promised W.H. that “nothing like that will

ever, ever happen again,” and that he would either have someone in the room

w ith him the next time he saw W.H. , or that she could be seen the next time

by Dr. Tara Wright.

39. W.H.’s testimony as to the sexual misconduct committed by

Respondent during the May 24, 2016, office visit is accepted in its entirety.

Respondent’s testimony denying W.H.’s sexual misconduct allegations is not

credible, and is not accepted where it conflicts with the testimony of W.H.

40. The undersigned finds that Respondent meant what he said and said

what he meant during the controlled call . That is, Respondent apologized for

unprofessional conduct and promised to have someone in the office with him

the next time he saw W.H. , because on May 24, 2016, he asked W.H. out on a

date, made multiple sexual ly - explicit comments to W.H., thrust ed his groin

into W.H. ’s buttocks in a humping motion, and touched W.H.’s inter gluteal

cleft and vagina with a Graston tool. Respondent asked W.H. out on a date

and made sexually - explicit comments to W.H. in an effort to induce W.H. to

engage in sexual activity, and he engaged, and/or attempted to engage, W.H.

in sexual activity when he thrust ed his groin into her buttocks in a humping

motion, and when he touched W.H.’s intergluteal cleft and vagina with a

Graston tool.

C ONCLUSIONS OF L AW

41. 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). The Department therefore bears the burd en

of proving 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)).

42. As stated by the Florida Supreme Court:

Clear 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 testimony must be precise and

explicit and the witnesses must be lacking in

c onfusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations

sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker ,

492 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden of proof may be met

where the evidence is in conflict; however, “it seems to preclude evidence that

is ambiguous.” Westinghouse Elec. Corp. v. Shuler B ros ., 590 So. 2d 986, 988

(Fla. 1st DCA 1991).

43. Disciplinary statutes and rules “must be construed strictly, in favor of

the one against whom the penalty would be imposed.” 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, 1143 (Fla. 1st DCA 1992); McClung v. Crim. Just. St n ds. & Training Comm’n , 458 So. 2d 887,

888 (Fla. 5th DCA 1984).

44. Respondent may not be found guilty of an offense that was not ch arged

in the Administrative Complaint. Trevisani v. Dep’t of Health , 908 So. 2d

1108 (Fla . 1st DCA 2005) (administrative complaint charged physician with a

failure to create medical records; proof of a failure to retain medical records

cannot support a find ing of guilt). Furthermore, due process prohibits the

Department from taking disciplinary action against a licensee based on

matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Delk v. Dep’t of Prof’l Reg ., 595 So. 2d

966, 967 (Fla. 5th DCA 1992).

45. As a threshold matter, Respondent argues that the Department has no

authority to discipline his Florida license for events that occurred in another state altogether . Respondent’s argume nt has three parts.

46. First , R espondent argues there is no sufficient nexus between his

activities in New York and the State of Florida to acquire personal

jurisdiction over him in Florida u nder section 48.193(1)(a), Florida Statutes,

known as Florida’s long arm stat ute . Specifically, Respondent argues that all

of the events at issue here occurred in New York , and Respondent did not

have a Florida office when these events took place.

47. Respondent’s jurisdictional argument is easily disposed of . Respondent

stipulate d that “ the Division of Administrative Hearings has jurisdiction over

the parties and the subject matter of this proceeding pursuant to section

120.57, Florida Statute s , ” in the Joint Pre - hearing Stipulation the parties

filed in this case on March 18, 2020 . Respondent also overlooks the fact that

he has been licensed as a chiropractic physician in the State of Florida since

2014, before all of the events at issue here occurred. The Department is the

state agency charged with regulating chiropractors who hav e been issued a

Florida license. Indeed, Respondent admits he is a chiropractic physician

subject to discipline by the Florida Board of Chiropractic Medicine because of his Florida license (Respondent’s PRO, ¶ 100) . For all of these reasons,

DOAH, and ulti mately the Board , have j urisdiction over Respondent and this

dispute.

48. Next , Respondent argues that Florida S tatutes do not authorize the

Department to discipline him for sexual misconduct committed in another

state. The prohibition on sexual misconduc t in the practice of chiropractic

medicine is found in s ection 460.312 , which provides :

The chiropractic physician - patient relationship is

founded on mutual trust. Sexual misconduct in the

practice of chiropractic medicine means violation of the chiroprac tic 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 medicine

is prohibited.

Respondent argues that this statute does not specifically state that it applies

to sexual misconduct that occurs outside the state of Florida. That much is

true . But it is also true that this statute does not limit prohibited sexual

misconduct to sexual misconduct that occurs in Florida only. On its face, the

statute prohibits sexual misconduct in the practice of ch iropractic medicine,

with regard to wher e it occur s . The undersigned will not add a geographic

limitation to this statute where the plain language does not support it. See

Greenfield v. Daniels , 51 So. 3d 421, 425 (Fla. 2010)(“[W]hen the language of

the st atute is clear and unambiguous and conveys a clear and definite

meaning, there is no occasion for resorting to the rules of statutory

interpretation and construction; the statute must be given its plain and

obvious meaning.” (quoting Holly v. Auld , 450 So. 2d 217, 219 (Fla. 1984)).

49. Finally, Respondent points out that section 456.063(2)(b) requires the

Board to refuse to license an applicant who has committed sexual misconduct

in another state , but does not require that a chiropractor who is already

lic ensed in Florida be disciplined for sexual misconduct committed in another

state. Section 456.063 has not , however, been cited as the basis for agency

action in this case; rather, the Administrative Complaint cites section

460.413(1)(ff) as the authorizati on to discipline Respondent . Section

460.413(1)(ff) authorizes the Department to discipline a chiropra ctor licensed

in Florida for “violating any provision of [chapter 460] or chapter 456, or any

rules adopted pursuant thereto.” T he Board is authorized to discipline

Respondent for committing sexual misconduct in violation of section 460.412 ,

because that is a provision of chapter 460.

50. Based on the Findings of Fact above, Petitioner proved, clearly and

convincingly, that Respondent is guilty of committi ng sexual misconduct , as

defined in , and prohibited by , section 460.412, because on May 24, 2016, he

asked W.H. out on a date, made multiple sexual ly - explicit comments to W.H.,

thrust ed his groin into W.H. ’s buttocks in a humping motion, and touched

W.H.’s intergluteal cleft and vagina with a Graston tool.

51. Florida Administrative Code Rule 64B2 - 16.003 contains the Board’s

disciplinary guidelines, setting forth penalty ranges for violations of chapter

460 and related rules. Paragraph (1) provides that th e Board “shall issue a

final order imposing appropriate penalties ... within the ranges

recommended” in the rule. Paragraph (2) sets out aggravating and mitigating

circumstances that may be considered to determine the appropriate penalty

to impose and to d eviate from the penalty ranges in the rule.

52. Rule 64B2 - 16.003(1)(f) prescribes the normal penalty for a violation of

section 460.412, ranging from a minimum of a one - year suspension followed

by two years of probation and a fine of not less than $1,000, to a maximum of

permanent revocation; from a minimum of a letter of concern and/or a PRN

referral for evaluation up to a maximum fine of $10,000 and/or permanent

revocation.

53. Consideration has been given to mitigating and aggravating

circumstances auth orized by rule 64B 2 - 16.003(2). As for mitigating

circumstances, there is only a single offense . There was no evidence offered to

show that Respondent has a history of other discipline. Suspension or

revocation of Respondent’s professional license would hav e a significant effect

upon his livelihood.

54. The aggravating circumstances provide counterweight to the

mitigating circumstances present here . Respondent’s conduct was

intentional . He made multiple sexually - explicit comments to W.H. during an

office vi sit , and made sexual contact with her twice during the same office

visit. S exual misconduct in the practice of chiropractic medicine, a health

care profession, constitutes a great danger to the public. An appropriately

serious consequence would have a dete rrent effect on other practitioners, and

would reinforce the important principles in the Board’s sexual misconduct statute . For all of these reasons, revocation is the appropriate penalty.

55. Section 456.072(4) provides that in addition to any other disci pline

imposed for violation of a practice act, the Board shall assess costs related to

the investigation and prosecution of this case.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department o f Health, Board of Chiropractic

Medicine, enter a final order finding Respondent guilty of violating section

460.413(1)(ff), through a violation of section 460.412, as charged in the

Administrative Complaint; revoking Respondent’s license to practice

chiro practic medicine; and imposing costs of the investigation and

prosecution of this case.

D ONE A ND E NTERED this 22nd day of July , 2020 , in Tallahassee, Leon

County, Florida.

B RIAN A. N EWMAN

Administrative Law Judge

Division of Administrative Hearings

Th e DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of July , 2020 .

C OPIES F URNISHED :

Edwin A. Bayó, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Rose L. Garrison, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Paul Drake, Esquire

Grossman, Furlow and Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Mohamad Cheikhali, Esquire

Department of Health

2585 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Julie Gallagher, Esquire

Grossma n, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Anthony B. Spivey, DBA, Exec utive Dir ector

Board of Chiropractic Medicine

Department of Health

4052 Bald Cypress Way , Bin C - 07

Tallahassee, Florida 32399 - 3257

(eServed)

Louise St. Laurent, Gen eral Counsel

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.