STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

PATTI L. WILLIAMS, )

)

Respondent. )

Case No. 01-4570PL

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on February 18, 2002, in Panama City, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Deborah B. Loucks, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Post Office Box 14229 Tallahassee, Florida 32317-4229

For Respondent: Russell K. Ramey, Esquire

1042 Jenks Avenue

Panama City, Florida 32401 STATEMENT OF THE ISSUE

Whether Respondent failed to meet the minimum standards of performance required by Section 491.009(2)(s), Florida Statutes, on two occasions.

PRELIMINARY STATEMENT

An Administrative Complaint against Respondent was filed by the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Department), on April 17, 2001. A subsequent complaint was filed by the Department on October 2, 2001. Respondent exercised her right to an administrative hearing and the matter was forwarded to the Division of Administrative Hearings. The Administrative Complaint of April 17, 2001, was assigned DOAH Case number 01-4571 and the complaint filed on October 22, 2001, was assigned DOAH Case number 01-4570. On December 12, 2001, Petitioner moved to consolidate the two cases. In an Order issued January 30, 2002, the cases were consolidated under DOAH case number 01-4570.

The case was set for hearing on February 6, 2002. Also pursuant to the Order issued January 30, 2002, the case was re- scheduled to be heard February 13, 2001. Pursuant to a Motion for Continuance filed by Respondent, the hearing was re-set for February 18, 2002, and heard as scheduled.

Petitioner offered three exhibits, all of which were admitted into evidence, and presented the testimony of three witnesses. Respondent did not call any witnesses or offer any exhibits. Because of statutes providing for the confidentiality

of medical records, two witnesses will be referred to by their initials rather than their actual names.

All references to statutes are to Florida Statutes (1997).

A Transcript was filed on April 5, 2002. Both parties filed Proposed Recommended Orders on the agreed due date of April 30, 2002, and both were considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with regulating the profession of marriage and family therapy pursuant to Section 20.43(3)(g) 29, and Chapters 456 and 491, Florida Statutes.

2. Respondent is, and has been at all times material, a marriage and family therapist holding Florida license number MT1416.

3. The last address of record of Respondent was 1416C, West 16th Street, Panama City, Florida 32405.

   Events relating to Ms. P.D.

   
   

4. Ms. P.D. is a registered X-ray technologist, a registered ultrasound technologist, and a registered specialist in mammography.

5. Ms. P.D. and her husband sought Respondent's professional help because they were experiencing marital difficulties. Ms. P.D. did not know Respondent until her

   husband chose Respondent as counselor. This occurred in June or July of 1997. They continued in counseling until March of 1999 or 2000. The dates provided herein are nonspecific because

   Ms. P.D. could not recall the exact years.

   
   

6. At the beginning of the counseling, Ms. P.D. and her husband received counseling at Respondent's office. Later they went to dinner together and received these services in a less formal setting. At least two of Ms. P.D.'s daughters received counseling also.

7. Ms. P.D. and her husband owned property in Panama City, Florida, located at 703 Kristana, a house in St. Croix, a farm in Nova Scotia, and waterfront property in Nova Scotia.

8. Mr. and Ms. P.D. also owned a building at 810 Grace Avenue in Panama City, Florida. This property was purchased probably in 1994, and was sold in May or June of 2001. Ms. P.D. and her spouse operated an ultrasound school on the premises from about 1994 until late 1997.

9. The ultrasound school was eventually closed due to lack of business. Ms. P.D. was a client of Respondent during the latter part of the time in which the ultrasound school was in operation.

10. In the latter part of 1997, or in the early part of 1998, Respondent found that she could no longer occupy the office in which she had been practicing. During a counseling

    session, Respondent mentioned that she needed an office for her practice and Ms. P.D. informed her that she could lease the premises at 810 Grace Avenue. Respondent paid rent to Ms. P.D. by check. Ms. P.D. deposited the checks to one of at least two accounts she maintains.

11. At some point subsequently, Ms. P.D. volunteered to work with Respondent in her practice. This was motivated in part because Ms. P.D. was an adoptive mother of two children who were acquired through an international adoption process. Respondent has experience in adoptions including working with the Florida Department of Children and Family Services.

12. Eventually, an organization was formed with the corporate name of Future Choices, Inc. (FCI). Initial participants in the organization included Mr. and Ms. P.D. and Respondent, among others. This organization involved the adoption process. It also involved "supervised visitations." The record does not fully explain what a "supervised visitation" actually is, but it is apparent from the record that someone or some entity is willing to pay for "supervised visitations" and therefore, "supervised visitations" provided income for FCI.

13. The business plan called for the organization to become profitable before any participants received a salary. Ms. P.D. was a member of the board of directors and was vice- president. She assumed these positions in 1998. She worked as

    a volunteer. She was not a subordinate of Respondent. They were business associates. Ms. P.D. served on the board until around 2000 or 2001.

    Events relating to Ms. P.M.

    
    

14. Ms. P.M. works for the Salvation Army Domestic Violence Program. She sought family counseling from Respondent in 1997. She thereafter received individual counseling from Respondent until 1998.

15. Ms. P.M. became friends with Respondent almost immediately upon the initiation of counseling. Respondent visited her in Ms. P.M.'s home, and Ms. P.M. visited Respondent in her home while the counseling relationship was ongoing. They had lunch together and went shopping. Her friendship with Respondent ended in 1999 when Ms. P.M. was informed that Respondent had revealed matters Ms. P.M. had provided to her in confidence.

    Events relating to both Ms. P.D. and Ms. P.M.

    
    

16. Ms. P.D. traveled with Respondent to Tallahassee, Florida, for supervised visitation training, and to Hollywood, Florida, for a batterers intervention program, and to Orlando, Florida, for a program dealing with sex offenders. Ms. P.M. also went on the Hollywood and Orlando, Florida trips. These trips required an overnight stay or stays. Ms. P.D. also traveled with Respondent to near-by cities such as Marianna,

    Florida. During these trips Ms. P.D. remained a counseling client of Respondent, and Ms. P.D. voluntarily paid the cost of these trips. Ms. P.D. was excited about the business prospects of FCI.

17. As a member of the board of FCI, Ms. P.D. signed checks drawn on the corporation. Ms. P.D. also paid the utility bills, and paid for much of the office equipment, for the benefit of FCI out of her personal funds.

18. Sandy Gorman was a business associate of Ms. P.D.

    
    

    Ms. Gorman was introduced to Respondent by Ms. P.D. Ms. Gorman eventually bought the building at 810 Grace Avenue for $57,000. Mr. and Mrs. P.D. had purchased it for about $30,000. The sale to Ms. Gorman was for less than market value because Mrs. P.D. wanted to help her.

19. During the time that Mr. and Mrs. P.D. owned the building, improvements were made on it, including the completion of an extant second floor. Respondent contributed to these improvements by causing Ms. P.M.'s husband to contribute toward making the top floor of the building habitable.

20. Sandy Gorman is now a direct competitor of Respondent in the visitations and adoptions business in Panama City, Florida. Ms. Gorman continues to be close friends with Ms. P.D.

21. Eventually the relationship between Ms. P.D. and Respondent soured. Around March, 2000, Ms. P.D. ejected

    Respondent and her belongings from the premises at 810 Grace Avenue. However, the business was beginning to turn a profit about the time Respondent was ejected.

    Expert testimony

    
    

22. Debra Frank is a licensed marriage and family therapist, a licensed psychiatric mental health nurse practitioner, and a professor at Florida State University. She received her Ph.D. from Florida State University in the Interdivisional Program in Marriage and Family. She is an expert on the practice of marriage and family therapy in the State of Florida.

23. Dr. Frank related that a marriage and family therapist provides counseling with regard to marital concerns or relationship concerns. She noted that the relationship between counselor and patient is based on trust. She opined that the counselor, because of her position, would often be able to exert influence on the client. She noted that clients come to the counseling relationship with emotional vulnerability and that it is the counselor's responsibility to act in the client's best interest.

24. Dr. Frank explained that a dual relationship is one where there are relationships other than the counselor-client relationship. These relationships would include relationships based on business interests as well as those based on

    friendship. Dual relationships are not per se prohibited by either the law or by ethical standards. However, they are prohibited where they may have the potential to harm a client.

25. In order to obtain a permissible dual relationship the therapy must terminate and there should be a gap in time prior to moving to another relationship. Moreover, the client should be referred to another counselor so that the client can discuss with another counselor the dual relationship prior to entering into it. Respondent accomplished neither of these actions.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

27. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Company, Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981). Therefore, the Department has the burden of proof. The standard to be met by the Department in this case is proof by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

28. Section 491.009(2)(s), Florida Statutes, provides as follows:

    491.009 Discipline--

    
    

    * * *

    
    

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

    
    

    * * *

    
    

    (s) 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, registered intern, certificateholder is not qualified by training or experience.

    
    

29. Section 491.009(1), Florida Statutes, provides as follows:

    
    

    1. When the department or the board finds that an applicant, licensee, or certificateholder 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(6).

       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

          
          

30. The behavior of Respondent with regard to Ms. P.D. was not particularly egregious. Ms. P.D. is a sophisticated business person and is not the type of person likely to have her judgment impaired, or to be exploited, simply because she was being counseled by Respondent. Nevertheless, Respondent failed to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, because of the duality of the situation and because of the social setting in which some of the counseling occurred. The relationship with regard to Ms. P.M. was somewhat more egregious because Ms. P.M. was less sophisticated.

31. The evidence did not demonstrate actual harm to

    
    

    Ms. P.D. or Ms. P.M. Respondent could not have known, when she established these dual relationships, whether or not harm might occur. However, the potential for harm was present and it is

    that potentiality which makes it wrong to engage in the type of behavior in which she demonstrated.

32. Respondent practiced unprofessional behavior by providing counseling in social settings and engaging in business activities with her clients. These are not activities in which her peers would engage.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED: That a final order be entered which finds

that Respondent violated Section 491.009(2)(s), Florida Statutes, on two occasions, and which places Respondent on probation for a period of three months with remedial action as the Board may find appropriate, so long as such action is not inconsistent with the provisions of Section 491.009(1)(g), Florida Statutes.

DONE AND ENTERED this 8th day of May, 2002, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2002.

COPIES FURNISHED:

Deborah B. Loucks, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Post Office Box 14229 Tallahassee, Florida 32317-4229

Russell K. Ramey, Esquire 1042 Jenks Avenue

Panama City, Florida 32401

Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy and

Mental Health Counseling Department of Health

4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701

R.S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-004571PL

Orders for Case No: 01-004571PL