STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM THOMAS MASSEY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2305

) STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted on February 4, 1981, at Florida State Hospital, Chattahoochee, Florida.

APPEARANCES

For Petitioner: Claude Arrington, Esquire

Assistant Public Defender Second Judicial Circuit

211 East Jefferson Street Quincy, Florida 32351

For Respondent: Gerry L. Clark, Esquire

Florida State Hospital Chattahoochee, Florida 32324

ISSUE

The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, William Thomas Massey, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).

FINDINGS OF FACT

1. The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division or Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on December 9, 1980. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until February 4, 1981, so that Petitioner might secure representation.

   
   

2. In the course of the final hearing the Petitioner testified in his own behalf and called as witness Michael Pomeroy, Staff Psychologist in the forensic

   service at the Florida State Hospital. The Respondent called Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital as its witness. Respondent's Exhibit No. 1 was admitted into evidence.

   
   

3. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Duval County, Florida, and the authority of Chapter 917, Florida Statutes (1977). Beginning March 1, 1979, through the present, Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the Petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs.

   
   

4. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The Petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period, in fact, no significant change has been observed in the petitioner's sexually deviant condition which dates from 1960. That condition has been diagnosed as homosexuality with a secondary diagnosis of personality disorder, inadequate type. This latter condition is manifested by maladapted behavior in the sense of lack of impulse control, in the sense that the Petitioner has a short temper when matters do not transpire in a fashion that he would approve.

   
   

5. Referring again to the Petitioner's participation in the group therapy sessions, he lacks personal involvement. In this connection, the Petitioner has a problem becoming open and honest with the other members of the group, notwithstanding his ability to deal with their problems in the group session.

   He presents himself superficially to the members of the group, getting along with those members but not letting the group participants get close to him nor he to them. In summary, the Petitioner has cooperated superficially but has not progressed. If the Petitioner remains in the program, he is not expected to progress in group therapy.

   
   

6. The Petitioner was placed in the program having been found guilty by jury on a charge of sexual battery on a seventeen year old male. The Petitioner does not acknowledge that he has committed a crime and he has not progressed in dealing with his propensity to commit homosexual acts with younger men. In other words, there has been no basic personality change in the Petitioner.

   
   

7. Petitioner, having a past history of alcohol abuse, has participated in and completed the alcohol abuse program for the forensic service at the Hospital. He still participates in the Alcoholics Anonymous program on the ward, is a member of the Jaycees and is a ward representative for grievance matters. The Petitioner has been involved in the ancillary therapies; leather and music in the past, and was involved in wood occupational therapy at the time of the hearing, but his attendance was below average. He lacked interest in that therapy program. The Petitioner also writes articles for the Hospital newspaper. The Petitioner has the freedom of movement on the grounds of the facility that includes walks and attendance at dances. At the November, 1980,

   staffing conference concerning the Petitioner's case, Petitioner expressed an interest in vocational rehabilitation. The ancillary programs as discussed herein in the absence of progress in the primary treatment modality, i.e., group therapy, will not promote satisfactory progress and change the determination that the Respondent has exhausted treatment on the patient.

   
   

8. On December 11, 1980, the Petitioner's case was presented to the screening committee of Unit Directors of all mentally disordered sex offender units within the State of Florida, and it was the unanimous opinion of those members that the Respondent had exhausted treatment for the Petitioner as a mentally disordered sex offender. This determination comports with the conclusion reached at the staffing conference held at the Florida State Hospital and reported as Respondent's Exhibit 1, admitted into evidence, which determined that the facility where the Petitioner was assigned had exhausted treatment.

   
   

9. The Petitioner feels like he continues to be helped by the & program and is making progress and has greater self esteem, in addition to being able to relate to others better. Specifically, the Petitioner feels that he is able to control his temper better and has gained an insight into his problem with alcoholism. Nevertheless, the Petitioner would not benefit sufficiently from further hospitalization in the sex offender program, to cause a change in the determination that the Respondent has exhausted treatment for the Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in keeping with Section 917.20, Florida Statutes (1977), and Section 917.011, Florida Statutes (1979).

    
    

11. Ultimately, questions of whether the Petitioner is properly classified as a mentally disordered sex offender, and the disposition to be made with respect to the Petitioner after he has received treatment as a mentally disordered sex offender are questions to be determined by the committing court; however, preliminary to that determination by the court is a question of whether the Respondent has exhausted all appropriate treatment of this patient (see statutory references set forth in paragraph (1) to these conclusions of law). This hearing was designed to address the question of exhaustion of treatment and once the Department has made the final determination, the committing court may pursue the alternatives available to it as set forth in Subsection 917.011(1), Florida Statutes (1979). See also Cummings v. State, 379 So.2d 988 (Fla. 1st DCA 1980).

    
    

12. The decision of whether the Respondent has exhausted all available treatment is one affecting the substantial interest of the Petitioner, within the meaning of Subsection 120.57(1), Florida Statutes, and this administrative hearing was conducted in keeping with the terms and conditions set forth in Chapter 120, Florida Statutes, which calls for determination of the issue of exhaustion of treatment by the executive branch of government as opposed to a judicial determination.

    
    

13. After a full consideration of the facts found herein, it is concluded as a matter of law that the Respondent has exhausted all appropriate treatment for the Petitioner. Therefore, the Petitioner should be returned to court with accompanying an report as set forth in Subsection 917.011(1), Florida Statutes (1979).

RECOMMENDATION

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 William Thomas Massey, and that said William Thomas Massey be returned to the committing court for further proceedings.

DONE and ENTERED this 5th day of March, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1981.

COPIES FURNISHED:

Claude Arrington, Esquire Assistant Public Defender Second Judicial Circuit

211 East Jefferson Street Quincy, Florida 32351

Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM THOMAS MASSEY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2305

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted on February 4, 1981, at Florida State Hospital, Chattahoochee, Florida.

APPEARANCES

For Petitioner: Claude Arrington, Esquire

Assistant Public Defender Second Judicial Circuit

211 East Jefferson Street Quincy, Florida 32351

For Respondent: Gerry L. Clark, Esquire

Florida State Hospital Chattahoochee, Florida 32324

ISSUE

The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, William Thomas Massey, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).

FINDINGS OF FACT

1. The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on December 9, 1980. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until February 4, 1901, so that Petitioner might secure representation.

   
   

2. In the course of the final hearing the Petitioner testified in his own behalf and called as witness Michael Comenoy, Staff Psychologist in the forensic service at the Florida State Hospital. The Respondent called Robert H. Alcorn,

   Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital as its witness. Respondent's Exhibit No. 1 was admitted into evidence.

   
   

3. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Duval County, Florida, and the authority of Chapter 917, Florida Statutes, (1977). Beginning March 1, 1979 through the present Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the Petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, theRespondent has exhausted treatment in the affiliated programs. Indeed, the Petitioner participated in the program at the North Florida Evaluation and Treatment Center, a sex offender program. This treatment commenced in October, 1977, and lasted for a period of approximately six months, after which time he was returned to the committing court and later placed in the Florida State Hospital forensic unit.

   
   

4. The primary program for mentally disordered sex offenders in the Florida State Hospital is group therapy. The Petitioner has participated in group therapy sessions and beginning in January, 1980, was assigned to intensive assertion training. In this connection, his group therapy sessions now involve a group which is more confrontation oriented. In the course of the group therapy sessions he has only personally discussed himself one time in his most recent group and that participation discussion occurred on February 3, 1981.

   The discussion related to the Petitioner's interest in a talent show at the hospital.

   
   

5. The Petitioner has learned about his childhood experience while in the program but he will not relate his sexual history or discuss his daily activities. The patient carries a diagnosis of inadequate personality and sexual deviation, namely pedophilia and has subnormal intelligence. His behavior is guarded and evasive and on balance his cooperation and participation is superficial. In the last six or eight months of his treatment, the Petitioner has not made satisfactory progress. The progress that has been achieved in the program relates to the patient's willingness to deal with others more readily, thereby getting along with others and creating a better feeling about himself. The patient has not broken the rules of the Forensic Unit lately but when pushed by others will become angry.

   
   

6. The Petitioner has been involved in wood and musictherapy, is a member of the Jaycees and attends dances and dance classes.

   
   

7. In January, 1980, the Petitioner was presented to a staff disposition conference consisting of members of the treatment team in the program for mentally disordered sex offenders and it was determined that the patient should be retained for a period of time. Again, in September, 1980, the patient was presented to the conference and it was determined that the hospital had exhausted the treatment possibilities for the Petitioner. Through a staff conference of the heads of the various sex offender programs in the Department's

   overall system held in October, 1980, it was the unanimous opinion of those members that treatment possibilities for the patient had been exhausted.

   
   

8. Although the Petitioner continues to express some motivation about participation in the sex offender program and feels that he needs more assistance, needs a structured environment, further participation in a sex offender program offered by the Respondent would not be sufficiently beneficial to cause the Petitioner to remain in the program.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in keeping with Section 917.20, Florida Statutes (1977), and Section 917.011, Florida Statutes (1979).

   
   

10. Ultimately questions of whether the Petitioner is properly classified as a mentally disordered sex offender, and the disposition to be made with respect to the Petitioner after he has received treatment as a mentally disordered sex offender are questions to be determined by the committing court; however, preliminary to that determination by the court is a question of whether the Respondent has exhausted all appropriate treatment of this patient (see statutory references set forth in paragraph (1) to these conclusions of law). This hearing was designed to address the question of exhaustion of treatment and once the Department has made the final determination, the committing court may pursue the alternatives available to it as set forth in Subsection 917.011(1), Florida Statutes (1979). See also Cummings v. State, 379 So.2d 988 (Fla. 1st DCA 1980).

    
    

11. The decision of whether the Respondent has exhausted all available treatment is one affecting the substantial interest of the Petitioner, within the meaning of Subsection 120.57(1), Florida Statutes, and this administrative hearing was conducted in keeping with the terms and conditions set forth in Chapter 120, Florida Statutes, which calls for determination of the issue of exhaustion of treatment by the executive branch of government as opposed to a judicial determination.

    
    

12. After a full consideration of the facts found herein, it is concluded as a matter of law that the Respondent has exhausted all appropriate treatment for the Petitioner. Therefore, the Petitioner should be returned to court with accompanying report as set forth in Subsection 917.011 (1), Florida Statutes (1979).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusion 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 William Thomas Massey and that said William Thomas Massey be returned to the committing court for further proceedings.

DONE and ENTERED this 29th day of March, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1981.

COPIES FURNISHED:

Claude Arrington, Esquire Assistant Public Defender Second Judicial Circuit

211 East Jefferson Street Quincy, Florida 32351

Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324

Docket for Case No: 80-002305

Orders for Case No: 80-002305