STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0959

)

JEFFREY R. ALSHIN, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: William M. Furlow, Esquire For Respondent: Andrea Wolfson, Esquire

This matter was heard in Ft. Lauderdale, Florida, on July 25, 1986, by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. The transcript of the proceedings was filed on August 11, 1986 and the parties filed proposed Recommended Orders by August 21, 1986. Specific rulings on findings of fact that were proposed by the parties are found in the Appendix to this Recommended Order. During the final hearing the style of this action was amended to delete the reference to the Board of Psychological Examiners as a Petitioner. (Tr. 7). 1/

ISSUES

At issue is whether Jeffrey Alshin is subject to discipline for violation of Section 490.009(2)(k), Florida Statutes (1983), by committing an act upon a client which would constitute sexual battery or sexual misconduct as defined in Section 490.0111, Florida Statutes (1983). Sexual misconduct in the practice of mental health counseling is prohibited by Section 490.0111, Florida Statutes (1983); that statute states that sexual misconduct shall be defined by rule.

According to the Administrative Complaint, Rule 21U-15.04, Florida Administrative Code, defines sexual misconduct. The Administrative Complaint also alleges a violation of Section 490.009(2)(s), Florida Statutes (1983), for failing to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance. The factual basis for these various grounds for discipline is alleged to have been engaging in sexual activity with a client during the period March, 1984, through July 1984, when a counselor-client relationship existed with the client.

FINDINGS OF FACT

1. The Respondent, Jeffrey R. Alshin, is a mental health counselor who has been licensed by the State of Florida during the times material to the allegations made in the Administrative Complaint.

2. The client with whom Alshin is accused of sexual involvement, J.S., was referred to him by a Dr. Lemberg, who saw J.S. on March 1, 1984 (Tr. 24).

   
   

3. J.S. telephoned Alshin's office and made an appointment to see him on Monday, March 5, 1984 (Tr. 24).

   
   

4. On March 5, 1984, J.S. went to Alshin's office for a therapy session and met Alshin for the first time. She had another session with him on March 9, 1984 (Tr. 24-25). From March 5, 1984 a counselor-client relationship existed between Alshin and J.S. (Tr. 82).

   
   

5. On the morning of Sunday, March 11, 1986, Alshin invited J.S. to his home for a barbecue (Tr. 26).

   
   

6. After the barbecue, Alshin and J.S. went to Respondent's apartment and that evening they engaged in sexual intercourse (Tr. 27-28).

   
   

7. Alshin engaged in sexual intercourse with his client on five other occasions between March and June, 1984 (Tr. 29).

   
   

8. During the period in which Alshin and J.S. were sexually involved, Alshin was counseling J.S. (Tr. 28-29). Alshin was never married to J.S.

   
   

9. Expert testimony submitted at the hearing establishes that for a mental health counselor to have a sexual relationship with a client is conduct which falls below the minimum standards of performance in professional activities for a mental health counselor when measured against prevailing peer performance (Tr. 80).

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this case and over the parties. Section 120.57(1), Florida Statutes (1985).

    
    

11. Several statutes and one rule are alleged as the basis for discipline. Under Section 490.009(2)(k), Florida Statutes (1983), a mental health counselor is subject to discipline for "committing any act upon a patient or client, other than the spouse of the actor ... which would constitute sexual misconduct as defined in Section 490.0111". The statutory definition of sexual misconduct found in Section 490.0111, Florida Statutes (1983), is as follows: "Sexual misconduct in the practice of clinical social work, marriage and family therapy, mental health counseling, psychology, or school psychology is prohibited.

    Sexual misconduct shall be defined by rule." The rule which defines sexual misconduct, and which has been cited as a basis for discipline in the Administrative Complaint is Rule 21U-15.04, which reads as follows:

    
    

    SEXUAL MISCONDUCT IN THE PRACTICE OF PSYCHOLOGY.

    The psychologist-client relationship is founded on mutual trust. Sexual misconduct in the practice of psychology means violation of the psychologist-client relationship through which the psychologist uses said relationship to induce or attempt to induce the client to engage, or to engage or attempt to engage the client, in sexual activity outside the scope of the practice or the

    scope of generally accepted examination or treatment of the client. Sexual misconduct in the practice of psychology is prohibited.

    
    

12. Another statutory provision under which the Department seeks to discipline Alshin is Section 490.009(2)(s), Florida Statutes (1983), which renders the licensee subject to discipline for "failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which the licensee is not qualified by training or experience".

    
    

13. The final statutory provision which Alshin is accused of violating is Section 490.009(2)(q), which renders him liable for discipline for "violating provisions of this chapter, or chapter 455, or any rules adopted pursuant thereto".

    
    

14. Sections 490.009(2)(k) and 490.0111, Florida Statutes (1983), and Rule 21U-15.04, Florida Administrative Code, provide no basis for the imposition of discipline in this case. The Department has produced no evidence, and has not argued, that Alshin is guilty of a sexual battery. It contends that Alshin has engaged in sexual misconduct. The statutory reference to sexual misconduct found in Section 490.0111, Florida Statutes (1983), is not a definition, but an authorization for the Department of Professional Regulation to promulgate a definition of that term by rule. The only rule cited in the Administrative Complaint as the basis for discipline is Rule 21U-15.04, Florida Administrative Code, but that rule only establishes a standard of conduct in a psychologist- client relationship. Alshin is not a psychologist. No rule has been cited, and independent research has revealed none, which defines sexual misconduct in the practice of mental health counseling (or for that matter in the practice of professions licensed under Chapter 490, Florida Statutes, other than psychology).

    
    

15. There is adequate evidence that Alshin failed to meet the minimum standards of performance in his professional activities as a mental health counselor when measured against generally prevailing peer performance by engaging in a sexual relationship with J.S. (Tr. 79-81, 87). By establishing this violation of Section 490.009(2)(s), Florida Statutes (1983), the Department has also established a violation of Section 490.009(2)(q), Florida Statutes (1983).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a final order be entered by the Secretary of the Department of Professional Regulation finding the Respondent guilty of a violation of Sections 490.009(2)(q) and (s), Florida Statutes (1983), and that his license as a mental health counselor be REVOKED.

DONE AND ORDERED this 10th day of November, 1986, in Tallahassee, Florida.

WILLIAM R. DORSEY

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 10th day of November, 1986.

ENDNOTE

1/ In this Recommended Order (Tr. ) will indicate a reference to the transcript of the final hearing.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0959

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Accepted in Finding of Fact 1.

2. Generally accepted in Finding of Fact 2.

3. Accepted in Finding of Fact 3.

4. Accepted in Finding of Fact 4.

5. Accepted in Finding of Fact 5.

6. Accepted in Finding of Fact 6.

7. Rejected as cumulative to Finding of Fact 8.

8. Accepted in Finding of Fact 7.

9. Accepted in Finding of Fact 8.

10. Accepted in Finding of Fact 8.

Rulings on Proposed Findings of Fact Submitted by Respondent

1. Accepted in Finding of Fact 1.

2. Sentence 1 accepted in Finding of Fact 2. Sentence 2 is rejected as unnecessary.

3. Rejected because Mr. Alshin's version of the initiation of his relationship with J.S. is not found credible, the testimony of J.S. is convincing and has been accepted.

4. Rejected for the reasons given for rejecting proposed Finding of Fact 3 above.

5. Rejected for the reasons given for rejecting proposed Finding of Fact 3 above.

6. Rejected for the reasons given for rejecting proposed Finding of Fact 3 above.

7. Rejected for the reasons given for rejecting proposed Finding

   of Fact 3 above.

8. Rejected for the reasons given for rejecting proposed Finding of Fact 3 above.

9. Rejected for the reasons given for rejecting proposed Finding of Fact 3 above.

10. Respondent's exhibit 1 does not state or support the inference that sexual contact between Alshin and J.S. occurred prior to any therapeutic relationship.

11. Respondent's exhibits 2, 3 and 4 do not support the inference that sexual contact between Alshin and J.S. occurred only prior to any therapeutic relationship.

12. The testimony of Lucie Sheperd was unenlightening and no Findings of Fact will be made based on it.

13. The testimony of Alshin on which this proposal is based is not found credible.

14. Rejected as unnecessary in view of the findings made with respect to Alshin's sexual activity with J.S.

15. Alshin's testimony in support of this proposed finding has been rejected.

16. Rejected as unnecessary because no finding of "sexual misconduct" has been made. See Conclusions of Law.

17. Rejected as unconvincing and irrelevant.

18. Rejected as irrelevant.

COPIES FURNISHED:

William M. Furlow, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Andrea L. Wolfson, Esquire

319 S.E. 14th Street

Ft. Lauderdale, Florida 33316

Linda Biedermann, Executive Director Board of Psychological Examiners Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings Benton, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-000959

Orders for Case No: 86-000959