STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK J. LUGO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-277

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted on May 6, 1981, at Florida State Hospital in Chattahoochee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Steven L. Seliger, Esquire

Post Office Box 324 Quincy, Florida 32351

For Respondent: Gerry L. Clark, Esquire

Florida State Hospital Chattahoochee, Florida 32324

ISSUE

The issue presented by this case is whether the Respondent, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Frank J. Lugo, Jr., through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977). The parties have submitted Proposed Recommended Orders. Those proposed findings not included in this Recommended Order were not supported by competent and substantial evidence or were considered immaterial to the results reached.

FINDINGS OF FACT

1. On January 19, 1981, the Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Department requested the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes, to consider the matters set forth in the Petition.

   
   

2. At the final hearing the Petitioner testified on his own behalf. Dr. Robert Berland, Ph.D., a psychologist and the Director of the Behavior Disorders Unit in the Forensic Service at the Florida State Hospital testified for the Respondent. Respondent's Exhibit 1, a composite exhibit consisting of a

   clinical summary, intradepartmental staffing report and an abstract of a staff conference, was admitted as evidence.

   
   

3. At all times pertinent to this proceeding the Petitioner has been in the custody of the Respondent pursuant to an order of the Circuit Court of Pinellas County, Florida and Chapter 917, Florida Statutes (1977). From August 6, 1979 through the present, Petitioner has resided in the Florida State Hospital in Chattahoochee, Florida, where he has undergone treatment in a hospital program for 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. The success rate within the program is very low due to patients' long established behavior patterns. Although the Petitioner has progressed during the course of his treatment, the Department has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is participating and has also concluded that similar programs for sex offenders within the state do not offer viable treatment alteratives.

   
   

4. The primary treatment modality for mentally disordered sex offenders at Florida State Hospital is group therapy. The Petitioner has participated in group therapy sessions during his current hospitalization, but no significant change in his behavior has occurred. Dr. Berland has diagnosed his present condition as (1) exhibitionism, (2) voyeurism, (3) other sexual deviations, (4) mixed substance abuse, (5) psychogenic pain disorder, (6) anti-social personality, (7) passive-aggressive personality with contained hostility, and

   (8) narcissism. Exhibitionism has been the Petitioner's primary problem with his first arrest for indecent exposure occurring in 1971.

   
   

5. Group and milieu therapy are the basic treatments available in the sex offender program at Florida State Hospital. Milieu therapy consists of interacting with people who share similar problems. Petitioner has participated in both therapies since his admission to the hospital. From August, 1979 to January, 1980, Mr. Lugo regularly attended group therapy and participated in the group. He developed a degree of insight into his condition. During this period, the group was led by Sam Cuningham, a psychologist, and met for one hour each week.

   
   

6. From February, 1980, to August, 1980, Petitioner regularly attended group but did not actively participate. Dr. Berland became head of the group and its size increased from five to ten members. When Mr. Lugo participated, his discussions centered on other patients' problems rather than his own. Although there is a benefit in listening and discussing other patients problems such benefit is not substantial when coupled with a denial of a patient's own problem as was the case with Mr. Lugo. One of the reasons given by Mr. Lugo for not participating was a CERonic sore throat. After Dr. Berland had the Petitioner examined by a physician who could find no medical basis for the problem, it was concluded by Dr. Berland that the disorder was psychogenic. During this period the Petitioner joined another group started by psychology interns at Florida State University which offered individual counseling in addition to group therapy. This group lasted for approximately two months.

   
   

7. On August 6, 1980, Mr. Lugo was presented for staffing by his treatment team. He was informed that his group participation was inadequate and given three areas where improvements was necessary: (1) analysis of and solution to sexual problems, (2) anti-social, manipulative and rule-violating behavior, and

   (3) hostility in interactions with others.

8. During the period September, 1980, to October, 1980, the Petitioner's behavior did not significantly change. Although he did attempt to cooperate by complaining less about his physical problems and changing his manner of dress, Petitioner's participation during group therapy remained superficial. After being informed by staff that his group participation remained inadequate, Mr. Lugo began writing summaries of his group experiences. He continued to write summaries after being informed by the staff that he should discuss experiences with the group rather than write summaries. During September to October, 1980, Mr. Lugo's attendance at group therapy was erratic.

   
   

9. On October 29, 1980, the treatment team met and after reviewing the Petitioner's case, concluded that Mr. Lugo continued to meet the criteria of a sex offender under Chapter 917, Florida Statutes, and that he was not amenable to further treatment in the behavior disorder unit. Having exhausted Florida State Hospital's treatment capabilities, the staff recommended that the patient be presented to an Intra-Departmental Screening Committee to determine if further treatment capabilities existed within any other sex offender treatment programs in the Department. On December 24, 1980, the Committee considered Mr. Lugo's case and recommended that he be returned to the appropriate Circuit Court as a treatment failure.

   
   

10. Petitioner has progressed in areas outside of group therapy including ward activities and vocational training. However, his involvement in these areas is insufficient to cause a meaningful alteration of Petitioner's aberrant behavior. Although individual therapy is available for patients such as the Petitioner, it was not attempted in this case because Mr. Lugo never achieved a level of progress necessary to make such therapy feasible.

    
    

11. The Petitioner desires to remain in the program at Florida State Hospital and be given individual therapy and assignment to a different treatment team.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. 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. 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).

    
    

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

15. After a full consideration of the facts 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 an accompanying 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 Frank J. Lugo, Jr., and that the said Frank J. Lugo, Jr. be returned to the committing court for further disposition.

DONE and ENTERED this 26th day of June, 1981, in Tallahassee, Florida.

SHARYN L. SMITH, 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 26th day of June, 1981.

COPIES FURNISHED:

Steven L. Seliger, Esquire Post Office Box 324 Quincy, Florida 32351

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

Docket for Case No: 81-000277

Orders for Case No: 81-000277