Arley Jimenez, V State Department Of Health ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ARELYJIMENEZ, )
No. 79690-9-I
Appellant, )
) DIVISION ONE
v.
)
WASHINGTON STATE DEPARTMENT) UNPUBLISHED OPINION
OF HEALTH, )
) FILED: August 5, 2019
Respondent.
__________________________________________________________________________________)
SMITH, J. —Arely Jimenez appeals an order by the Department of Health
(Department) finding that she engaged in the unlicensed practice of medicine
and naturopathy and committed unprofessional conduct by doing so. She argues
that the Department violated her constitutional rights and acted arbitrarily and
capriciously in entering its findings and assessing sanctions against her. Finding
no errors, we affirm.
FACTS
Jimenez is a state-licensed marriage and family therapist (MFT). Jimenez
obtained a doctor of natural health degree from Clayton College, a nonaccredited
institution, which the Department does not recognize as a credential for obtaining
a license to practice natural medicine. She also attended a nonaccredited online
No. 79690-9-1/2
school to study the practice of F~Jedicine.1 At the end of the coursework, the
“American ~iedicine Licensing Board, Inc.” issued Jimenez a license to practice
l~Jedicine and assured her that the license was valid to practice nationwide.
Jimenez never obtained a license to practice medicine or naturopathy from the
Department.
In December 2014, Jimenez opened Whidbey Naturals Alternative
Medicine (Whidbey Naturals) with Clarence Hugh Jonson, a man she met at her
church who represented himself as an attorney and board-certified naturopathic
physician. From December2014 through February 2015, Jimenez saw five
patients and treated them for varying ailments, including high blood pressure,
thyroid issues, celiac disease, insomnia, back pain, fatigue, tremors, and balance
issues. She treated these patients with natural supplements, energy treatments,
and diet and exercise recommendations.
Unfortunately for Jimenez, Jonson was a fraud. Unbeknownst to her, he
did not have any license or credential to practice medicine or naturopathy in
Washington. The Department received two complaints about Whidbey Naturals
and opened an investigation. On January 2, 2015, investigators Mitchell
Anderson and Kathleen Mills posed as husband and wife during an appointment
with Jimenez, and Jimenez stated that she could help Mills with her fibromyalgia
and chronic fatigue symptoms. When Anderson and Mills dropped by without an
appointment on February 5, 2015, Jimenez told them that she could treat their
1 Beverly Jackson, who issued Jimenez’s doctorate of 1~Jedicine degree,
described ~edicine as a branch of alternative medicine that is based on quantum
electrodynamics and quantum physics.
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No. 79690-9-1/3
fictional son’s posttraumatic stress disorder. Oak Harbor police arrested Jimenez
on February 17, 2015, for practicing medicine without a license.
After a hearing, the Department issued an initial order finding that Jimenez
engaged in the unlicensed practice of medicine and naturopathy and that her
actions constituted unprofessional conduct. It issued a permanent cease and
desist order, imposed $5,000 in sanctions, and placed her MET license on
probation until the fines were paid in full. Jimenez appealed the initial order and
a review officer affirmed and issued findings of fact, conclusions of law, and a
final order. The trial court affirmed the Department’s final order. Jimenez
appeals to this court.
UNPROFESSIONAL CONDUCT
Jimenez argues that the Department acted arbitrarily and capriciously in
accusing her of unprofessional conduct under RCW 18.130.180. We disagree.
‘The Washington Administrative Procedure Act (APA), chapter 34.05
RCW, governs judicial review of agency decisions.” Facihih v. Dental Quality
Assur. Comm’n, 148 Wash. App. 836, 842, 202 P.3d 962 (2009). “We review
agency action from the same position as the superior court and review the
administrative record rather than the superior court’s findings or conclusions.”
Crosswhite v. Deij’t of Soc. & Health Servs., 197 Wash. App. 539, 548, 389 P.3d
731, review denied, 188 Wash. 2d 1009 (2017).
“To find an agency’s decision to be arbitrary and capricious we must
conclude that the decision is the result of willful and unreasoning disregard of the
facts and circumstances.” Providence Hosp. of Everett v. Der’t of Soc. & Health
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No. 79690-9-1/4
Servs., 112 Wash. 2d 353, 356, 770 P.2d 1040 (1989). “Judging whether the
[agency’s] decision was arbitrary and capricious requires an evaluation of the
evidence produced at the hearing.” Pierce County Sheriff v. Civil Serv. Comm’n
for Sheriff’s Emrs., 98 Wash. 2d 690, 695, 658 P.2d 648 (1983). “The scope of
court review should be very narrow, however, and one who seeks to demonstrate
that action is arbitrary and capricious must carry a heavy burden.” Pierce County
Sheriff, 98 Wash. 2d at 695. “Findings of fact from the agency’s final order are
reviewed under the substantial evidence test and will be upheld if supported by a
sufficient quantity of evidence to persuade a fair-minded person of the order’s
truth or correctness.” Crosswhite, 197 Wash. App. at 548.
Under RCW 18.130.180(1), “[t]he commission of any act involving moral
turpitude, dishonesty, or corruption relating to the practice of the person’s
profession, whether the act constitutes a crime or not,” constitutes unprofessional
conduct. “The principal question that arises in applying this statute concerns the
relationship between the practice of the profession and the conduct alleged to be
unprofessional.” Haleyv. Med. Disci~linar~’ Bd., 117 Wash. 2d 720, 731, 818 P.2d
1062 (1991). “To serve as grounds for professional discipline under
RCW 18.130.180(1), conduct must be ‘related to’ the practice of the profession .
meaning that the conduct must indicate unfitness to bear the responsibilities of,
and to enjoy the privileges of, the profession.” Haley, 117 Wash. 2d at 731.
Here, the Department found that
[re]spondent’s conduct in falsely holding herself out as a licensed
naturopath was an act of dishonesty. Her practice of medicine
without a license raises concerns that she may use her professional
position to harm members of the public (in this case, her clients or
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No. 79690-9-1/5
patients). Respondent’s conduct also tends to lower the standing
of the marriage and family therapy profession in the eyes of the
public. Therefore, Respondent’s conduct meets the definition of
moral turpitude.
Jimenez takes issue with the term of art “moral turpitude.” Even though she does
not assign error to the Department’s finding on appeal, she argues that she did
not commit moral turpitude because her “intent has always been to do good by
others,” she believed her i~edicine license was valid, she “believes in doing good
works,” and she closed her counseling practice. Even so, substantial evidence
supports the Department’s finding that Jimenez held herself out as a licensed
naturopath when she had no such license. Specifically, Jimenez sent an e-mail
to Premera Blue Cross to update her contact information with that insurance
provider and stated, “I am also a licensed Naturopath.” Additionally, both
Anderson and Mills testified that during their undercover investigation, Jimenez
held herself out to them as a naturopathic doctor. This is substantial evidence
that she falsely held herself out as a licensed naturopath, conduct that was
dishonest and constituted unprofessional conduct. Therefore, the Department’s
finding that she violated RCW 18.130.180(1) was not arbitrary and capricious.
Jimenez argues that reversal of the Department’s final order is necessary
because the trial court “acknowledged that charging Appellant with
[RCW] 18.130.180(1) was abusive.” But the trial court simply opined that
sometimes “the law uses the worst terms possible to describe conduct” and that
was true of the term “moral turpitude” to describe dishonest behavior. The trial
court held that the Department’s finding that Jimenez committed unprofessional
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No. 79690-9-1/6
conduct was supported by substantial evidence. The trial court’s comment does
not require reversal.
Jimenez also argues that none of her former clients testified that she held
herself out as a naturopath or a doctor of medicine. But given Jimenez’s e-mail
to Premera Blue Cross and the testimony by Anderson and Mills that Jimenez
held herself out as a naturopathic doctor to them, there was substantial evidence
that she held herself out as a naturopathic doctor despite the absence of
testimony from other clients.
Jimenez asserts that Anderson and Mills lied and that the e-mail to
Premera Blue Cross was altered. But because the Department’s hearing officer
was in the best position to observe the evidence and witness testimony, we do
not weigh the credibility of witnesses or substitute our judgment for the agency’s
findings of fact. Port of Seattle v. Pollution Control Hr’qs Bd., 151 Wash. 2d 568,
588, 90 P.3d 659 (2004). Therefore, this assertion does not warrant reversal.
Finally, Jimenez argues that application of RCW 18.130.180 to her
constitutes a violation of RCW 34.05.570(2), which addresses judicial review of
the validity of an agency rule. But because the Department found that Jimenez
violated RCW 18.130.180 in an agency order and not during a rule-making
process, RCW 34.05.570(2) does not apply.
SANCTIONS
Jimenez argues that the sanctions imposed by the Department should be
reversed. We disagree.
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No. 79690-9-1/7
Under RCW 18.71 .021, “[nb person may practice or represent himself or
herself as practicing medicine without first having a valid license to do so.” A
person practices medicine if she “[o]ffers or undertakes to diagnose, cure,
advise, or prescribe for any human disease, ailment, injury, infirmity, deformity,
pain or other condition, physical or mental, real or imaginary, by any means or
instrumentality.” RCW 18.71.011(1). RCW 18.130.190(3) authorizes the
Department to “impose a civil fine in an amount not exceeding one thousand
dollars for each day upon which the person engaged in unlicensed practice of a
business or profession for which a license is required.”
Here, the review officer found that Jimenez “diagnosed, advised and
treated Patients C, D, E, F, and G for medical conditions such as high blood
pressure, thyroid issues, celiac disease, tremors, back pain, possible kidney
issues, and depression.” This finding is supported by each patient’s records and
the testimony of patients D, E, F, and G, which constitute substantial evidence to
support the finding. The Department ordered Jimenez to pay a $5,000
administrative fine: $1 ,000 for each of the five patients she treated.
Jimenez argues that the amount of the fine was excessive because she
has not worked since February 2015 due to the administrative proceedings and
health issues caused by the stress of those proceedings. While we acknowledge
that the fine may pose a financial burden to her, we can reverse only if the
Department’s decision to impose it was arbitrary and capricious. Because the
fine was authorized by statute and did not did not exceed the amount delimited
by the statute, we cannot hold that it was arbitrary and capricious.
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No. 79690-9-1/8
For the first time in her reply brief, Jimenez argues that there is no
evidence that she practiced medicine. But she does not address the actions
described in RCW 18.71 .011(1), only the actions in RCW 18.71 .O11(2)-(4).
Because there is substantial evidence that Jimenez took some of the actions
described in RCW 18.71 .011(1), her argument is not persuasive.
CONSTITUTIONAL VIOLATIONS
Jimenez argues that her constitutional rights were violated at various
times throughout the investigation and administrative process and reversal is
necessary. We disagree.
Constitutional questions are issues of law and are reviewed de novo.
McDevitt v. Harborview Med. Ctr., 179 Wash. 2d 59, 64, 316 P.3d 469 (2013).
First, Jimenez argues that the Oak Harbor police violated her
constitutional rights when they arrested her. Because this action involves an
administrative proceeding between Jimenez and the Department and not a
criminal proceeding or a civil lawsuit under 42 U.S.C. § 1983, the actions of the
Oak Harbor police, however offensive to Jimenez, are not properly before this
court. Therefore, we decline to address them as a basis for reversing the
Department’s final order.
Next, Jimenez argues that the Department violated her Fourteenth
Amendment due process right to a fair trial by denying her rights under the Sixth
Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution. She claims that she was denied her right to present a
defense under the Sixth Amendment and article I, section 22 when the hearing
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No. 79690-9-1/9
officer failed to issue subpoenas to three witnesses and when the hearing officer
excluded some of her exhibits at the hearing. She also argues that her Sixth
Amendment right to effective assistance of counsel was violated. We note that
both the Sixth Amendment and article I, section 22 apply to only criminal
prosecutions and Jimenez’s probation and fine is a civil penalty, not a criminal
punishment. See Chmela v. DejD’t of Motor Vehicles, 88 Wash. 2d 385, 392, 561
P.2d 1085 (1977) (article I, section 22 and the Sixth Amendment are inapplicable
in civil cases). Therefore, her due process rights were not violated because she
is not entitled to protection under the Sixth Amendment or article I, section 22.
Any grievances Jimenez has against her attorney must proceed as a separate
malpractice claim.
Jimenez also argues that the Department’s final order violates her First
Amendment right to list her accomplishments as a doctor of natural health and of
fciedicine. But the Department has not restricted Jimenez’s right to list her
degrees among her accomplishments. Rather, it issued a cease and desist order
that restricted her from practicing medicine and naturopathy without a license.
Because Jimenez does not have a license to practice medicine or naturopathy,
the Department did not violate her First Amendment rights by issuing the cease
and desist letter.
Finally, Jimenez argues that the Department has violated her right to
freedom of religion under the First Amendment to the United States Constitution
and article I, section 11 because her practice of f~Jedicine was related to her
religious beliefs. Article I, section 11 “parallels the First Amendment’s religious
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No. 79690-9-1110
Establishment and Free Exercise Clauses.” Open Door Baptist Church v. Clark
County, 140 Wash. 2d 143, 151, 995 P.2d 33(2000). “If government action burdens
the exercise of religion, but the State demonstrates that it has a compelling
interest in enforcing its enactment, that interest will justify the infringement of
First Amendment rights.” First Covenant Church of Seattle v. City of Seattle, 120
Wash. 2d 203, 222, 840 P.2d 174 (1992). “[Cjompelling interests are based in the
necessities of national or community life such as clear threats to public health,
peace, and welfare.” Munns v. Martin, 131 Wash. 2d 192, 200, 930 P.2d 318
(1997). Here, even assuming that the Department’s actions have infringed on
Jimenez’s right to freedom of religion, the Department has a compelling public
health and welfare interest in limiting the practice of medicine and naturopathy to
individuals licensed by the Department. To the extent that Jimenez’s practice of
1~iedicine without a Washington license burdened her exercise of religion, the
Department’s interest in public health and safety justified any infringement of her
constitutional rights.
For the first time in her reply brief, Jimenez argues that the Department
violated her due process rights by notifying insurance companies about the
charges against her before a final order was issued. Also for the first time in her
reply, she argues that the Department violated her due process rights because it
did not apply a clear and convincing standard of proof to the evidence presented.
But because these issues were raised in her reply brief and there was no
opportunity for the Department to respond, we decline to consider them. RAP
10.3(c).
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No. 79690-9-I/I I
TRIAL COURT PROCEEDINGS
Jimenez argues that the trial court erred during its review of the
Department’s final order. But any errors by the trial court do not affect our
review.
As the reviewing court, we sit in the same position as the superior court
and apply the APA standards directly to the record before the agency. King
County Pub. Hosp. Dist. No. 2 v. Dept of Health, 178 Wash. 2d 363, 372, 309 P.3d
416 (2013). “[W]e do not give deference to the superior court’s rulings.” Verizon
Nw., Inc. v. Emp’t Sec. Dep’t, 164 Wash. 2d 909, 915, 194 P.3d 255 (2008).
Jimenez argues that the trial court erred both in granting the Department’s
motion to strike exhibits attached to her briefing and in considering an
unpublished federal court order attached as an appendix to the Department’s
brief. Additionally, Jimenez argues that the trial court misstated the record when
it said that she had nine clients, rather than the actual number of five. Finally,
she argues that the trial court erred in concluding that she was not really
Jonson’s victim. The trial court did not actually say that Jimenez was not a
victim. Even assuming it did, because we apply the APA standards directly to
the administrative record and do not give deference to the superior court’s
rulings, none of these alleged errors affect our analysis on appeal and they are
not a basis for reversal.
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No. 79690-9-1/12
We affirm.
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