STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARVIN LEE BARKER, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1293

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in the above matter on August 20, 1980, at Florida State Hospital, Chattahoochee, Florida. The following appearances were entered: Loyd C. Mosley, Clearwater, Florida, who appeared on behalf of the Petitioner, Marvin Lee Barker; and Gerry L. Clark, Chattahoochee, Florida, who appeared on behalf of the Respondent, Department of Health and Rehabilitative Services.

The Petitioner submitted a "Petition for Administrative Determination" to the Department of Health and Rehabilitative Services. The Petition was filed in the office of the Division of Administrative Hearings on July 11, 1980. The final hearing was scheduled as set out above by Notice dated July 21, 1980. The petitioner filed a motion to have a legal representative assigned to represent him, which motion was denied by Order entered July 29, 1980.

At the final hearing, the Respondent called the following witnesses: Carol

1. Ford, a clinical psychologist employed with the forensic service at Florida State Hospital; and Robert B. Alcorn, Director of the Sex Offender Program at Florida State Hospital. The petitioner appeared as a witness on his own behalf. Petitioner's Exhibit 1 and Respondent's Exhibit 1 were received into evidence. The Respondent has submitted a posthearing legal memorandum with respect to the issue of the jurisdiction of the Division of Administrative Hearings to conduct a hearing in this matter.

   
   

   The issue for determination in this proceeding is whether the Respondent has exhausted all appropriate treatment of the Petitioner.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material to this proceeding, the Petitioner has been in the custody of the Respondent pursuant to an Order entered by the Circuit Court in Pinellas County, Florida, pursuant to Chapter 917, Florida Statutes. Petitioner is presently housed at the Florida State Hospital in Chattahoochee, Florida, where he is receiving treatment in the hospital program for mentally disordered sex offenders. The Respondent has informally determined that it has exhausted all appropriate treatment of the Petitioner in its program.

   2. The program for mentally disordered sex offenders at Florida State Hospital and at other institutions requires a high degree of motivation on the part of the patient. The primary treatment program is group therapy. The Petitioner has participated in group therapy sessions and adjunctive therapy programs, such as Alcoholics Anonymous, school, and leather "occupational therapy. His condition has been diagnosed as borderline mental retardation, possible organic brain syndrome as epilepsy, personality disorder sexual deviation, and a seizure disorder.

      
      

   3. The patient's participation in the adjunctive therapy programs has been adequate. His participation in group therapy, however, which is of primary importance, has not been adequate. He has attended sessions regularly, but has participated very little. He has not talked about his own or other people's difficulties. At times during group sessions he laughed inappropriately. In order to improve his communications skills, the petitioner was referred to a communications skills assertiveness training group in January, 1980. He attended the program and was cooperative, but it did not improve his participation in the primary group therapy program. The Petitioner has not been an overt management problem at the hospital, but he has been resentful, argumentative, and uncooperative. He appears comfortable with his life-style at the hospital, and with his propensity to commit sex offenses.

      
      

   4. The Petitioner was presented to a staff disposition conference which consisted of members of the treatment team in the program for mentally disordered sex offenders. The consensus of the staff was that the Petitioner had not shown distress about his problems and did not appear motivated to change. The Petitioner's case was presented to representatives of other programs for mentally disordered sex offenders in Florida, but noise of the participants felt that the Petitioner would benefit from their programs. It appears that the Respondent has exhausted all of the treatment possibilities that could be of benefit to the Petitioner.

      
      

   5. The Petitioner has complained of numerous physical ailments, for which he asserts he has received inadequate attention at the hospital. He contends that had he received better treatment for his medical difficulties, he would have participated more freely in the primary treatment program. The Petitioner also contends that if he were placed in a program near to where his family lives, he would be more motivated to treatment. The Petitioner's effort to blame his lack of motivation on the staff at the hospital rather than on himself indicates further that it is not likely that he would receive benefit from a program that requires a high degree of motivation.

      
      

      CONCLUSIONS OF LAW

      
      

   6. Although none of the parties raised it, an issue exists as to whether the Division of Administrative Hearings has jurisdiction to conduct hearings in this sort of proceeding. Petitioner was committed to the hospital in accordance with tie provisions el Chapter 917, Florida Statutes. Clearly, questions of whether the Petitioner is properly classified as a mentally disordered sex offender, and what disposition should be made with respect to the Petitioner after he has received treatment as a mentally disordered sex offender are questions for the circuit court under the statute. Once the Department of Health and Rehabilitative Services has determined, however, that it has exhausted all appropriate treatment of such patients [Section 917.012(b)], the circuit court has no authority to consider whether the Department was correct in that determination, but has only the alternatives available to it set out in Section 917.011(1). Cummings v. State, 379 So.2d 988 (1 DCA Fla. 1980). The

      decision of whether the Respondent has exhausted all available treatment is one which clearly affects the substantial interests of the Petitioner. Since the circuit court does not have jurisdiction over that issue, the provisions of the Florida Administrative Procedure Act apply, and the Petitioner is entitled to a hearing in accordance with Section 120.57(1), Florida Statutes. The hearing in this matter was conducted in that context.

      
      

   7. The Respondent has exhausted all appropriate treatment for the Petitioner. The Petitioner should therefore be returned to court with a written report in accordance with Section 917.011(1), Florida Statutes.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Marvin Lee Barker, and that Marvin Lee Barker be returned to the committing court for further proceedings.

RECOMMENDED this 8th day of September, 1980, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Loyd C. Mosley, Esquire

501 South Fort Harrison Avenue Clearwater, Florida 33516

Gerry L. Clark, Esquire Hospital Legal Counsel Department of Health and

Rehabilitative Services Florida State Hospital Chattahoochee, Florida 32324

Mr. Alvin J. Taylor Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 80-001293

Orders for Case No: 80-001293