STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CLINICAL, ) SOCIAL WORK, MARRIAGE AND FAMILY ) THERAPY AND MENTAL HEALTH )

COUNSELING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4280

)

DAVID PESEK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 5, 1991, at Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances at the hearing were as follows:

APPEARANCES

FOR PETITIONER: Laura P. Gaffney, Esquire

Senior Attorney

Department of Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

FOR RESPONDENT: Mr. David Pesek, pro se

450 West Hillsboro Boulevard Deerfield Beach, Florida 33441

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondent has violated Sections 491.009(2)(h) and (u), Florida Statutes, by failing to timely comply with a prior Board Order and, if so, the determination of an appropriate penalty.

PRELIMINARY STATEMENT

The Respondent has been charged by administrative complaint with failing to timely comply with a Board order issued in a prior case. There is no genuine dispute about the basic facts alleged in the Administrative Complaint, but the Respondent's position is that there are some additional facts which should be considered in mitigation of the proposed penalty.

At the hearing the Petitioner presented the testimony of one witness and offered two exhibits, both of which were received in evidence. The Respondent

testified on his own behalf. The only exhibits offered by the Respondent were documents already included in the Petitioner's exhibits; therefore, no additional exhibits were received on behalf of the Respondent. At the conclusion of the hearing the parties were allowed ten days from the filing of the transcript of the hearing within which to file their respective proposed recommended orders.

The transcript of the hearing was filed with the Hearing Officer on November 18, 1991. Accordingly, due to the Thanksgiving Day holidays, the parties' proposed recommended orders were due on Monday, December 2, 1991. The Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. Shortly after the deadline, the Respondent contacted the Hearing Officer by telephone to request an extension of time within which to submit his proposed recommended order. A telephone conference hearing was conducted on December 6, 1991, to hear argument on the Respondent's request, at which time the Petitioner opposed the extension of time. The Respondent's request was granted and he was allowed until December 13, 1991, within which to file his proposed recommended order. At the same time, the Petitioner was allowed until December 20, 1991, within which to file a response to any proposed recommended order the Respondent might file. On December 12, 1991, the Respondent filed a three-page letter which consists of a chronology of events in this case interspersed with commentary and argument.

Apparently, the Respondent did not send a copy of his December 12, 1991, submission to the Petitioner, because on December 23, 1991, the Petitioner filed a motion seeking to have the Respondent's last submission stricken from the record on the grounds that a copy of it had not been received by the Petitioner. The Petitioner also filed a Notice of Vacation advising of her unavailability from December 23, 1991, through January 8, 1991. By separate order issued this same day, the Notion To Strike is denied. And while in the usual case good form would suggest that the Petitioner be given additional time within which to file a response to the Respondent's last submission, in view of the recommended disposition of this case, no useful purpose would be served by further delay of this case.

The substance of all proposed findings of fact submitted by the Petitioner have been incorporated into the Findings of Fact in this Recommended Order. The majority of the factual material in the Respondent's post-hearing submission is irrelevant to the issues in this case and, therefore, has not been included in the following Findings of Fact. 1/

FINDINGS OF FACT

1. The Respondent, David Pesek, is a licensed Marriage and Family Therapist in the State of Florida, and has been so licensed at all times relevant and material to this proceeding. His license number is NT 192.

   
   

2. On September 7, 1988, the Petitioner filed an earlier Administrative Complaint against the Respondent in DPR Case No. 0055334. On February 14, 1990, the Respondent signed a stipulation providing for a stipulated disposition of DPR Case No. 0055334. The Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling approved the stipulated disposition at a meeting on April 27, 1990, and on Nay 23, 1990, a Final Order was rendered in DPR Case No. 0055334. The Final Order in DPR Case No. 0055334 included the following pertinent language:

   
   

   Respondent shall pay an administrative fine of one thousand dollars ($1,000) to the

   Executive Director of the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling within sixty (60) days of the filing of the Final Order herein. Respondent shall be placed on probation for one (1) year, with the condition of probation that Respondent's billing records and documents be reviewed by a consulting practitioner. The one (1) year probation shall begin to run when consulting practitioner is approved. Such consultant shall submit a written report to the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling six (6) months following the rendition of the Final Order. The consulting practitioner shall be selected by Respondent, subject to approval of the Board.

   
   

3. Pursuant to the terms of the Final Order in DPR Case No. 0055334, the deadline for paying the administrative fine was July 23, 1990. On November 27, 1990, the Department of Professional Regulation sent a letter to the Respondent reminding him that he had not complied with the Final Order in DPR Case No. 0055334. By letter dated December 6, 1990, and received on December 13, 1990, the Respondent transmitted his check in the amount of one thousand dollars in payment of the fine. 2/ The fine was paid approximately four and a half months after it was due.

   
   

4. By letter dated January 23, 1991, the Respondent advised the Chairman of the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling of the name of a consulting practitioner who was willing to perform the review and reporting functions required by the Final Order in DPR Case No. 0055334. The letter of January 23, 1991, was two months after the deadline for the consultant's report. By letter dated April 1, 1991, the Respondent was advised by staff of the Department of Professional Regulation that his choice of a consulting practitioner had been approved, that the consultant's report would be due six months from the date of the letter, and that the Respondent's one-year probation period would begin as of the date of the letter. /3

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57, Florida Statutes.

   
   

6. Section 491.009, Florida Statutes, reads as follows, in pertinent part:

   
   

   1. When the department or the board finds that an applicant, licensee, or certificate- holder whom it regulates under this chapter has committed any of the acts set forth in subsection (2), it may issue an order imposing one or more of the following penalties:

      1. Denial of an application for licensure or certification, either temporarily or permanently.

      2. Revocation of an application for

         licensure or certification, either temporarily or permanently.

      3. Suspension for a period of up to 5 years or revocation of a license or certificate, after hearing.

      4. Immediate suspension of a license or certificate pursuant to s. 120.60(8).

      5. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

      6. Issuance of a public reprimand.

      7. Placement of an applicant, licensee, or certificateholder on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the applicant, licensee, or certificateholder to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of a designated licensee or certificateholder.

      8. Restriction of practice.

   2. The following acts of a licensee, certificateholder, or applicant are grounds for which the disciplinary actions listed in subsection (1) may be taken:

      (h) Failing to perform any statutory or legal obligation placed upon a person licensed or certified under this chapter.

      (u) Violating a rule relating to the regulation of the profession or a lawful order of the department or the board previously entered in a disciplinary hearing.

      
      

7. The disciplinary guidelines adopted by the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling appear at Rule 21CC-5.001, Florida Administrative Code. Subsection (1) of the last-cited rule provides the following basic recommended penalties for the violations charged in this case:

   
   

   1. When the Board finds an applicant or licensee whom it regulates under Chapter 491, Florida Statutes, has committed any of the acts set forth in Chapter 491.009(2), Florida Statutes, it shall issue a final order imposing appropriate penalties as recommended in the following disciplinary guidelines.

      (h) Failing to perform any statutory or legal obligation placed upon a person licensed under Chapter 491, Florida Statutes. The usual recommended penalty shall be a public reprimand and an administrative fine of

      $1,000.

      (u) Violating a rule relating to the regulation of the profession or a lawful order of the Department or the Board previously

      entered in a disciplinary hearing. The usual recommended penalty shall be an administrative fine of $1,000 and revocation.

      
      

8. Subsection (2) of Rule 21CC-5.001, Florida Administrative Code, provides for deviation from the recommended penalties quoted above upon consideration of mitigating and aggravating factors, as follows:

   
   

   1. Based upon consideration of the following factors, the Board may impose disciplinary action other than the penalties recommended above:

      1. the severity of the offense;

      2. the danger to the public;

      3. the number of repetitions of offenses;

      4. the length of time since the date of the violation(s);

      5. prior discipline imposed upon the licensee;

      6. the length of time the licensee has practiced;

      7. the actual damage, physical or otherwise, to the patient;

      8. the deterrent effect of the penalty imposed;

      9. the effect of the penalty upon the licensee's livelihood;

      10. any efforts for rehabilitation;

      11. the actual knowledge of the licensee pertaining to the violation;

      12. attempts by the licensee to correct or stop violations or failure of the licensee to correct or stop violations;

      13. related violations against the licensee in another state, including findings of guilt or innocence, penalties imposed and penalties served;

      14. any other mitigating or aggravating circumstances.

      
      

9. Section (3) of Rule 21CC-5.001, Florida Administrative Code, itemizes various conditions which may be imposed as terms of probation, as follows:

   
   

   1. Any or all of the following conditions may be imposed as terms of probation:

   1. restitution of the costs of probation;

   2. restitution to client(s) or third-party payor(s);

   3. payment of fine(s);

   4. Department access to all records;

   5. fulfill additional continuing education requirements;

   6. indirect or direct supervision of practice by Board-approved sponsor;

   7. restrictions on advertising;

   8. restriction of practice, including hours, days, or type of practice;

   9. disallowance of supervision of persons in the clinical phase of their training;

   10. submission of reports by licensee and consent to submission of reports by sponsor(s) and employer(s) and helping professional(s);

   11. consent to urine and blood testing;

   12. other conditions as appropriate.

   
   

10. Rule 21CC-5.003, Florida Administrative Code, reads as follows:

    
    

    In cases where the Board has imposed a civil penalty for violation of Chapter 455 or 491, Florida Statutes, or the rules promulgated thereunder, the penalty shall be paid within

    30 days of the filing of the Order with the Clerk of the Department of Professional Regulation.

    
    

11. Applying the foregoing statutory and rule provisions to the facts in this case, it is first clear that the Respondent has violated the provisions of Section 491.009(2)(u), Florida Statutes, because there is no dispute about the fact that he failed to comply with the Board's earlier order on a timely basis. The Respondent paid his fine late and the Respondent was late in making arrangements for a Board-approved sponsor to supervise his practice. Such tardiness in compliance was a clear violation of "a lawful order of the department or the board previously entered in a disciplinary hearing."

    
    

12. Application of the facts in this case to the provisions of Section 491.009(2)(h), Florida Statutes does not lead to such a tidy disposition. To the contrary, the facts in this case do not appear to constitute a violation of Section 491.009(2)(h), Florida Statutes. The essential element to establishing a violation of Section 491.009(2)(h), is proof of failure to perform a "statutory" or a "legal" obligation. The word "statutory" is quite clear, and in the context of Section 491.009(2)(h), it refers to an obligation imposed by statute. There is no proof that the Respondent failed to perform any obligation imposed by statute. The word "legal" is a more ambiguous term, especially as used in Section 491.009(2)(h). In the interpretation of disciplinary statutes, the courts in this state have consistently given a strict construction to any ambiguities in such statutes, and have resolved the ambiguities in favor of the licensee. Viewed in such a manner, the term "legal obligations," as used in Section 491.009(2)(h), should be interpreted to mean "obligations required by law." /4 When the subject statutory provision is interpreted in such a manner, the facts in this are insufficient to establish a violation of Section 491.009(2)(h), because the Respondent's failures established on this record relate to obligations imposed by a Board order, and not to obligations imposed "by law."

    
    

13. With regard to the appropriate penalty to be imposed, the Respondent does not seriously dispute the notion that he was inexcusably late in paying his fine. But with regard to the tardiness in submitting the name of a consulting practitioner, the Respondent argues that he should be excused because the language of the Final Order in DPR Case No. 0055334 was confusing with regard to when he was required to submit the name. While it is true that the subject Final Order does not contain a specific date as the deadline for the submission of the name of the consulting practitioner, it is nevertheless obvious from the language of that Final Order that the name had to be submitted promptly in order to comply with the portion of the Final Order that required the consulting

    practitioner to submit his report within six months from the date of the Final Order. On the record in this case, it cannot be concluded that the Respondent made a good faith effort at timely compliance with the portion of the subject Final Order that required him to submit the name of a consulting practitioner.

    
    

14. As noted in Paragraph 3 of these conclusions of law, the usual penalty for a violation of Section 491.009(2)(u), Florida Statutes, is an administrative fine of $1,000 and revocation. However, this appears to be a case in which a lesser penalty is appropriate upon consideration of the criteria in Subsection

1. of Rule 21CC-5.001, Florida Administrative Code. Of particular importance in this regard are the following: this is not an especially serious offense because it is basically a case of tardy performance rather than a failure of performance; there was no danger to the public nor any damage to any patient; there are no prior offenses of a similar nature; and a lesser penalty than the usual penalty should be sufficient to provide a deterrent effect.

   
   

   RECOMMENDATION

   
   

   For all of the foregoing reasons, it is RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling enter a Final Order in this case to the following effect:

   
   

   1. Concluding that the Respondent did not violate Section 491.009(2)(h), Florida Statutes, and dismissing Count I of the Administrative Complaint.

      
      

   2. Concluding that the Respondent did violate Section 491.009(2)(u), Florida Statutes, and finding him guilty of the violation charged in Count II of the Administrative Complaint.

      
      

   3. Imposing a penalty consisting of: (1) an administra- tive fine in the amount of $500.00 (Five Hundred Dollars), (2) issuance of a public reprimand, and (3) a six-month period of probation, which period shall begin on the first day following the Respondent's current probation period and shall be subject to such reasonable conditions of probation as may seem appropriate to the Board.

DONE AND ENTERED at Tallahassee, Leon County, Florida, this 7th day of January, 1992.

MICHAEL M. PARRISH, 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 7th day of January, 1992.

ENDNOTES

1/ The Respondent's post-hearing submission does not readily lend itself to the usual detailed specific rulings Hearing Officers customarily give to the proposed findings of fact submitted by the parties. Considering that there are

no real disputes about the relevant facts, and that an effort to specifically rule on each and every factual detail submitted by the Respondent would likely take up twice or three times as many pages as the submission itself, there does not appear to be any useful purpose to be served by such detailed rulings, and they have not been made in this case.

2/ By way of mitigation, the Respondent testified that his tardiness in paying the fine was due in part to financial difficulties which made it difficult for him to pay the fine when it was due. The testimony is not persuasive in light of other evidence, such as the fact that no financial difficulties are mentioned in the Respondent's letter of December 6, 1990.

3/ By way of mitigation, the Respondent testified that his tardiness in arranging for a consulting practitioner was due in part to difficulty in locating someone who was willing to serve in that role. The testimony is not persuasive in light of other evidence, such as the fact that no such difficulty is mentioned in the Respondent's letter of December 6, 1990.

4/ This interpretation is also consistent with the hoary rule of statutory construction known as "noscitur a sociis," which is to the effect that when specific and general words capable of analogous meaning are used in the same statutory provision, they take color from each other so that the general words are restricted to a sense analogous to the less general. See State ex rel.

Wedgworth Farms, Inc. v. Thompson, 101 So.2d 381 (Fla. 1958); Dunham v. State,

192 So. 324 (Fla. 1940); DeSisto College, Inc. v Town of Howie-In-The-Hills, 706 F.Supp 1479 (DC MD Fla. 1989).

COPIES FURNISHED:

Laura P. Gaffney, Esquire Senior Attorney

Department of Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Mr. David Pesek

450 West Hillsboro Boulevard Deerfield Beach, Florida 33441

Ms. Diane Orcutt, Executive Director Board of Clinical Social Work, Marriage and Family Therapy,

and Mental Health Counseling Northwood Centre 1940 North Monroe Street

Tallahassee, FL 32399-0792

Jack McRay, Esquire General Counsel

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF CLINICAL SOCIAL WORK, MARRIAGE AND FAMILY THERAPY AND MENTAL HEALTH COUNSELING

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF CLINICAL SOCIAL WORK, MARRIAGE AND FAMILY THERAPY AND MENTAL HEALTH COUNSELING,

Petitioner,

vs. DOAH CASE NO. 91-4280 and

DPR CASE NO. 90-15904

DAVID PESEK,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling for final action pursuant to Section 120.57(l)(b)10., Florida Statutes, at a public meeting on January 31, 1992, in Orlando, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein.

FINDINGS OF FACT

The Board, having reviewed the Findings of Fact, the entire file and record and having heard the arguments of the Respondent who appeared pro se, adopts and incorporates the Findings of Fact of the Hearing Officer.

CONCLUSIONS OF LAW

The Board, having reviewed the Conclusions of Law, rejects Conclusions of Law numbers 8 and 10 and substitutes its own.

Board's 8. The Board interprets Section 491.009(2)(h), Florida Statutes, to give effect to the phrase "legal obligation" which has a meaning separate and distinct from the phrase "statutory obligation". A statutory obligation is one that is imposed by statute. A legal obligation is one imposed by rule or order of the Board. This interpretation uses the plain meaning of the words and gives effect to both parts of Section 49l.009(2)(h). Thus, the facts in this case establish that the Petitioner has violated Section 491.009(2)(h).

Board's 10. The usual penalty for a violation of Section 49l.009(2)(h), Florida Statutes, is an administrative fine of $1,000 and a public reprimand. The usual penalty for a violation of Section 49l.009(2)(u), Florida Statutes, is an administrative fine of $1,000 and revocation. While there appears to be some mitigating factors in this case, such as, no danger to the public nor damage to a patient, there are aggravating factors, namely, a prior discipline imposed upon the licensee, a failure to comply with the penalty from that prior discipline, and the deterrent effect of the penalty to encourage the Petitioner to comply with the orders of this Board.

The Board adopts and incorporates Conclusions of Law numbers 1-7 and 9 of the Hearing Officer.

IT IS THEREFORE ORDERED AND ADJUDGED:

1. The Respondent violated Sections 49l.009(2)(h) and (u), Florida Statutes and is guilty of the violations charges in Counts 1 and II of the Administrative Complaint.

   
   

2. The penalty imposed is: (a) an administrative fine of $500.00 (Five Hundred Dollars) for each count for a total of $1,000 (One Thousand Dollars),

(b) suspension which is stayed for sixty (60) days from the date of filing of this Order during which period the fine shall be paid, (c) if the fine is paid, probation from the date of payment but no sooner than April 1, 1992 for one year, (d) if the fine is not paid within the sixty day period, the suspension shall begin on the sixty-first (61st) day and be in effect until the fine is paid followed by probation for one year from the end of the suspension.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date this Order is filed.

This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.

DONE AND ORDERED this 22nd day of March, 1992.

Larry Shyers, Chairman Board of Clincal Social Work, Marriage and Family Therapy and Mental Health Counseling

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States Mail to David Pesek, 450 W. Hillsboro Boulevard, Deerfield Beach, Florida 33441, and by Hand Delivery to Laura P. Gaffney, Esquire, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399-0792 on this 30th day of March, 1992.

Docket for Case No: 91-004280

Orders for Case No: 91-004280