STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4991

)

JOHN AUGUST MOSER, )

LICENSED MENTAL HEALTH COUNSELOR, )

)

Respondent. )

)

RECOMMENDED ORDER

This action came on for hearing before the Division of Administrative Hearing's duly designated Hearing officer, Diane Cleavinger, on the 16th day of March 1988, at Pensacola, Florida. The parties were represented by counsel:

For Petitioner: Laura Gaffney, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Gary Lane, Esquire

Post Office Box 12331

251 E. Intendencia Street Pensacola, Florida 32581

The issue addressed is whether Respondent had violated Chapter 490 (now Chapter 491), Florida Statutes, regulating psychological services by performing acts of a sexual nature with a client and/or by violating Chapter 456, Florida Statutes, regulating the practice of hypnosis, and if so, the appropriate disciplinary action for the alleged violations.

At the hearing Petitioner called C. E. Whelahan, a DPR investigator; J. D., the complainant; and Respondent, and introduced one exhibit consisting of a note and poem sent by Respondent to J. D. The Respondent testified in his own behalf as an individual and as an expert, and introduced one exhibit consisting of excerpts from recognized, authoritative texts in the area of psychotherapy involved in this hearing.

Petitioner and Respondent submitted proposed Findings of Fact and Conclusions of Law on March 29, 1988, and April 7, 1988, respectively. Petitioner's and Respondent's Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, is a licensed mental health counselor, holding license number 0000187. Originally he was licensed pursuant to Chapter 490, Florida Statutes, since the inception of that Chapter about six years ago. However, in 1987, the Respondent became licensed pursuant to Chapter 491, Florida Statutes, when the legislature transferred mental health counselors' licenses to Chapter

491. Chapter 87-252, Laws of Florida. He has been a mental health counselor for at least twelve years, nine of which have been in Florida and three in another state. Respondent received his Masters degree in mental health counselling from Catholic Services University. He received his Doctorate in Psychology from Florida State University. During his education, Dr. Moser specialized in hypnotherapy. He has conducted intensive research on hypnotherapy and has published a book, Case Studies in Hypnotherapy, on the subject. Dr. Moser had counselled at Catholic High School for six years and presently counsels on a volunteer basis at St. Joseph's Community Center in Pensacola. Additionally, he has taught both counseling and hypnotherapy at the University of West Florida in Pensacola. Suffice it to say that Dr. Moser's qualifications regarding his profession and in particular, his qualifications in hypnotherapy, are impressive.

1. The complainant in this case is J. D. J. D. became a patient of Dr. Moser in July 1986. One of her friends whose father was a medical doctor and who would occasionally refer patients to Dr. Moser gave her Dr. Moser's name. Dr. Moser, however, was contacted directly by the friend's father, Dr. Bolthrop. Dr. Bolthrop requested that Dr. Moser see J. D. in order to help her with her mental problems.

   
   

2. Initially, J. D. was being treated by Dr. Moser for low self-esteem and marital problems. However, at about the twentieth session, it became apparent to Dr. Moser that J. D. was a very troubled girl due to the fact that she had been seriously sexually abused as a child and had been involved in a relationship with a married man whose child she later had to abort when he abandoned her. J. D. was somewhat depressed and very distrustful of men in general since she had been treated so badly by them. Testing of J. D. revealed that her utmost desire was to be loved. During Dr. Moser's treatment of her, J.

   D. was 30 to 40 pounds heavier than she was at the hearing. During her treatment she wore very drab and unflattering clothes. She was not a physically attractive human being. She generally did not look like she felt very well or felt very good about herself.

   
   

3. There were 28 sessions in all. The first few sessions were history gathering sessions. Additionally, different psychotherapeutical approaches were also tried out. The eighth session, on September 8, 1986, was the first hypnotic session. There were nine separate hypnotic sessions with J. D. The hypnotic sessions alternated with other non-hypnotic sessions. November 24, 1986, was not a hypnotic session and would not have been a hypnotic session by the alternating process. The non-hypnotic sessions involved discussion of the previous hypnotic session and general counseling. Another treatment employed with J. D. by Dr. Moser was the treatment utilizing written expression of feelings by the patient J. D. to Dr. Moser. These letters were later destroyed by J. D. after her falling out with Dr. Moser. Hypnotherapy constituted less than one third of the total treatment of J. D. As indicated earlier, J. D.'s treatment began by uncovering the less troubling aspects of her problems and progressed over time until the more deep seated sexual problems started being uncovered. It was prior to the twentieth session when Dr. Moser finally received a letter from J. D. detailing the sexual abuse and wrecked affair of

   her life. Curiously, the twentieth session was the session immediately following the session at which she claims (November 24, 1986) Dr. Moser utilized improper sexual conduct toward her.

   
   

4. J. D.'s testimony was the only evidence offered to demonstrate that Dr. Moser had made improper sexual advances toward her. She related that during the November 24, 1986, session, Dr. Moser placed her under hypnosis and took her in her mind to the beach where he asked her to lie down beside him on the sand (floor). He said that he would put some suntan oil on her and she consented.

   He pretended to rub the oil on her over her clothes and in the process rubbed her clothing over her stomach and breast area. He then kissed her to show that he loved her. Dr. Moser then got off the floor and terminated the hypnosis. J.

   D. claimed he would not have eye contact with her. However, she admitted he had helped her off the floor and was sitting in his chair with his appointment book on his lap, scheduling her next appointment.

   
   

5. Dr. Moser completely denies the story testified to by J. D. At the end of the November 24 session, Dr. Moser mentioned that J. D. did not need to see him every week anymore and wanted to go to a biweekly schedule. He also told her that he would be leaving on vacation for the next few weeks and would not be able to see her. Up through the controverted session, J. D. had been responding well to therapy. She was generally beginning to feel better about herself. Suddenly, however, after the November 24 session, J. D. attempted suicide and ended up in the hospital. Dr. Moser saw her at the hospital. She was very angry and wanted to know if he was in love with her. He told her no. She then began demanding to know why he had left her. She also accused him of not detecting her suicide attempt and blamed him for her actions. She told him she didn't want to see him again.

   
   

6. On December 17, 1986, J. D. called Dr. Moser for an appointment. She saw Dr. Moser at Catholic Social Services and gave him a large glass Madonna and then accused him of kissing her in a trance. The next day, she came back and again accused him of kissing her. Dr. Moser testified that during the appointment he denied the accusation. J. D. testified that during the appointment he admitted the accusation. Dr. Perello, J. D.'s then psychologist, corroborates Dr. Moser's denial.

   
   

7. J. D. obtained another appointment on January 25, 1987. She again accused him of kissing her. Upon the third accusation, Dr. Moser terminated the relationship on January 23, 1987. He gave J. D. her file which contained all the letters she had written to Dr. Moser. J. D. grew angry and threatened to get even. J. D. then tore up the letters except for the note and poem introduced into evidence which had accidentally remained in Respondent's possession.

   
   

8. In February 1987, J. D. attempted suicide again and again ended up in the hospital.

   
   

9. J. D.'s testimony regarding the events of November 24, is not credible for a number of reasons. Primary among those reasons is that the mental difficulty she was seeking help from Dr. Moser on can precipitate the type of fantasizing she has engaged in and testified to at the hearing. Such a dependent person as J. D. is particularly vulnerable to resisting the eventual termination of therapy and harbors very strong and confused feelings toward the therapist. The therapist is the one person to whom a patient such as J. D. has revealed her private self to in a way most people never reveal. The patient is very dependently vulnerable and scared and often substitutes the therapist for

   the people in the patient's prior life who have filled significant roles, both good and bad (e.g. parents, rejected lovers, etc.) The patient is not aware of these feelings. This is especially true when the patient's highest priority is to be loved, nurtured and cared for, and the patient's number one fear is to be rejected and abused. The opposing emotional forces can result in a very strong and angry reaction to any perceived termination of the therapy. Moreover, the ability to fantasize the details of J. D.'s story was enhanced because she has the ability to practice self-hypnosis, as well as undergoing hypnotherapy.

   Hypnosis more rapidly and more deeply focuses a patient's feelings and conflicts than any other therapy. In this case, J. D. transferred her desire to have a love relationship with a man to Dr. Moser and then fantasized the details. The fantasy became a psychic reality to her. When that love was in reality rejected by perceived termination, the result was unmitigated, revengeful anger. The repeated pattern of termination suicide corroborates this point.

   
   

10. Moreover, J. D. was not always consistent in the details of her story. Charles E. Wheelaham, the DPR investigator in this case, testified that J. D. told him that Dr. Moser had not given her letters back. Likewise, she failed to tell him she had been hospitalized for her suicide attempt. More importantly, she told him that two sexual events had occurred with the first occurring when Dr. Moser had rubbed her breasts the week prior to September 24, 1986. However,

    J. D. affirmatively denied the occurrence of two events and she testified that only one event had occurred and not the two she told the investigator about. J.D.'s testimony alone simply is not credible.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Petitioner has the burden of proving by clear and convincing evidence that a violation of Chapter 490 (now Chapter 491) and 456, Florida Statutes, has occurred. Bowling v. Dept. of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla.2d DCA 1966).

    
    

13. Chapter 491, Florida Statutes, is the Chapter governing Mental Health Counselors and under which Dr. Moser was licensed. The relevant portions of Chapter 491, Florida Statutes, read as follows:

    
    

    491.003 Definitions. (5) "Mental health counselor" means a person licensed under this chapter to practice mental health counseling.

    * * *

    1. Discipline. (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 certificate holder 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 certificate holder to submit to treatment, to attend continuing education courses, to submit to re- examination, or to work under the supervision of a designated licensee or certificate holder.

       8. Restriction of practice.

    (2) The following acts of a licensee, certificate holder, 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.

    (k) Committing any act upon a patient or client which would constitute sexual battery or which would constitute sexual misconduct as defined pursuant to s. 491.0111.

    1. Being unable to practice the profession for which he is licensed or certified under this chapter with reasonable skill or competence as a result of any mental or physical condition or by reason of illness; drunkenness; or excessive use of drugs, narcotics, chemicals, or any other substance. In enforcing this paragraph, upon a finding by the secretary, his designee, or the board that probable cause exists to believe that the licensee or certificate holder is unable to practice the profession because of the reasons stated in this paragraph, the department shall have the authority to compel a licensee or

       certificate holder to submit to a mental or physical examination by

       psychologists, physicians, or other licensees under this chapter, designated by the department or board. If the licensee or certificate holder refuses to comply with such order, the department's order directing the examination may be enforced by filing a petition for enforcement in the circuit court in the circuit in which the licensee or certificate holder resides or does business. The licensee or

       certificate holder against whom the petition is filed shall not be named or identified by initials in any public court records or documents, and the proceedings shall be closed to the public. The department shall be entitled to the summary procedure provided in s.51.011. A licensee or certificate holder affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice for which he is licensed or certified with reasonable skill and safety to patient.

    2. Violating provisions of this chapter, or of chapter 455, or any rules adopted pursuant thereto.

    (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

    certificate holder is not qualified by training or experience.

    (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.

    * * *

    491.0111 Sexual misconduct. Sexual misconduct by any person licensed or certified under this chapter, in the practice of his profession, is prohibited. Sexual misconduct shall be defined by rule.

    * * * 491.0141 Practice of hypnosis. A

    person licensed under this chapter who is qualified as determined by the board may practice hypnosis as defined in s. 456.32(1). The provisions of this section may not be interpreted to limit or affect the right any person qualified

    pursuant to chapter 456 to practice hypnosis pursuant to that chapter. 1/

    
    

14. Chapter 456, Florida Statutes, is the Chapter governing Hypnosis. The relevant portions of Chapter 456, Florida Statutes, read as follows:

    
    

    1. Definitions. In construing this chapter, the words, phrases, or terms, unless the context otherwise indicates, shall have the following meanings:

       1. "Hypnosis" shall mean hypnosis, hypnotism, mesmerism, posthypnotic suggestion, or any similar act or process which produces or is intended to produce in any person any form of induced sleep or trance in which the susceptibility of the person's mind to suggestion or direction is increased or is intended to be increased, where such a condition is used or intended to be used in the treatment of any human ill, disease, injury, or for any other therapeutic purpose.

       2. "Healing arts" shall mean the practice of medicine, surgery, psychiatry, dentistry, osteopathic medicine, chiropractic, naturopathy, podiatry, chiropody, and optometry.

       3. "Practitioner of the healing

          arts" shall mean a person licensed under the laws of the state to practice medicine, surgery, psychiatry, dentistry, osteopathic medicine, chiropractic, naturopathy, podiatry, chiropody, or optometry within the scope of his professional training competence and within the purview of the statutes applicable to his respective profession, and who may refer a patient for treatment by a qualified person, who shall employ hypnotic techniques under the supervision, direction, prescription, and responsibility of such referring practitioner.

       4. "Qualified person" shall mean a person deemed by the referring practitioner to be a qualified by both professional training and experience to be competent to employ hypnotic technique for therapeutic purposes, under supervision, direction, or prescription. (emphasis supplied)

          * * *

    2. When practice of hypnosis is prohibited. It shall be unlawful for any person to engage in the practice of

       hypnosis for therapeutic purposes unless such person is a practitioner of one of the healing arts, as herein defined, or acts under the supervision, direction, prescription, and responsibility of such a person. (emphasis supplied)

       * * *

    3. Penalties.

    (2) REVOCATION OF LICENSE. A violation of any of the provisions of this chapter by any person licensed to practice any branch of the healing arts in this state shall constitute grounds for revocation of license, and action

    may be taken by the respective boards in accordance with the applicable statutes.

    * * *

    
    

15. During July through November of 1986, Chapter 490, Florida Statutes, was the Petitioner's statutory authority over mental health counselors. In 1986, Chapter 490, Florida Statutes, provided that only licensed psychologists could practice hypnosis. (Section 490.0141, Florida Statutes). No other type of licensee under Chapter 490 could practice hypnosis unless the licensee was a "Qualified Person" or "Practitioner of the Healing Arts" as defined in Chapter 456, Florida Statutes. In 1986, Dr. Moser was not a practitioner of the healing arts as defined in Chapter 456, Florida Statutes. However, Dr. Moser was a "qualified person" under Chapter 456, Florida Statutes. A qualified person is one who is deemed qualified by the referring practitioner (i.e. Dr. Bolthrop) by both professional training and experience to employ hypnosis. Dr. Moser clearly had such a reputation in the "healing arts" community since he received many referrals from the various practitioners of the healing arts and specifically received several referrals from Dr. Bolthrop. Dr. Moser was, therefore, legally capable to practice hypnosis under Chapter 456, Florida Statutes.

    
    

16. The language in Section 456.33, Florida Statutes, which reads "under the supervision, direction, prescription and responsibility" of a practitioner of the healing arts does not render Dr. Moser's use of hypnosis illegal by taking away his qualified status. The language in Section 456.33, Florida Statutes, refers to the healing arts practitioner's duties and responsibilities. (See Section 456.31, Florida Statutes) It does not refer to Dr. Moser's status. Dr. Moser's status is defined in Section 456.32(4) Florida Statutes, and determined solely by the healing arts practitioner.

    
    

17. This interpretation of Chapter 456, Florida Statutes, is further supported by the fact that Chapter 456, Florida Statutes, does not provide for any disciplinary action against a license outside the definition of a practitioner of the healing arts. (Section 456.34, Florida Statutes) Chapter

    456 discipline is limited solely to the license of a practitioner of the healing arts. Conversely, Chapter 490 does not incorporate Chapter 456 into its disciplinary criteria. Neither Section 490.009(h) or (g) refer to conduct outside the obligations set forth in Chapter 455, Florida Statutes, and Chapter

    490 (now 491), Florida Statutes, or any rules promulgated thereunder. Likewise, Section 490.009(s) (now Section 491.009(s)), Florida Statutes, does not incorporate Chapter 456, Florida Statutes, since Dr. Moser is exceptionally qualified in every respect to practice hypnosis whether he is deemed a qualified person or not.

18. Moreover, in 1987, mental health counselors licensing was transferred to Chapter 491, Florida Statutes. Most of the Chapter remained the same except Section 491.0141, Florida Statutes, was added to allow licensees under Chapter

    491 deemed qualified by the board the authority to practice hypnosis. As of the hearing date, the Board had not adopted a rule on the qualifications it would require of a licensee pursuant to Section 491.0141, Florida Statutes. 2/

    
    

19. In effect, the legislature affirmatively recognized in 1987 that it was appropriate for a mental health counselor to practice hypnosis. Hypnosis was never specifically excluded or prohibited from use by a mental health counselor trained to utilize such a therapy along with the many other therapies such a person is trained to use. The only limit on the use of the therapy was whether the licensee was qualified. Section 491.009(s), Florida Statutes. As noted, Dr. Moser is so qualified.

    
    

20. However, since the legislature has recognized a qualified individual's ability to practice hypnosis, there no longer remains any jurisdiction under even the most strained statutory construction in Respondent to discipline Dr. Moser for his 1986 use of hypnosis Robertson v. Circuit Court of Highland County

    164 So. 525 (Fla. 1935). This is particularly true since an administrative agency is strictly a creature of its statutes. Generally, at common law, recognition by the legislature that an activity which had been illegal was now legal nullifies all proceedings had under the statute. Robertson, supra.

    Unless the agency is currently granted the means to discipline a licensee by the legislature, the agency has no authority to act. In this case, there no longer remains any ground under which Dr. Moser could be disciplined for his 1986 use of hypnosis on J. D. as alleged in Count I of Petitioner's Administrative Complaint..

    
    

21. Finally, as to Count II of the Administrative Complaint, involving allegations of sexual misconduct on the part of Dr. Moser, J. D.'s testimony standing alone simply does not present clear and convincing evidence of sexual misconduct by Dr. Moser. Moreover, J. D. as a witness is not credible as to the facts she testified to. Respondent failed to carry its burden of proof as to Count II.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law it is therefore

RECOMMENDED:

That the complaint against Respondent be dismissed.

DONE and ORDERED this 22nd day of July, 1988, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988.

ENDNOTES

1/ Section 491.0141 is a new Section in Chapter 491 and was not contained in Chapter 490.

2/ However, in Vol. 14, No. 19 of the Florida Administrative Weekly dated May 13, 1988, the Board somewhat belatedly published a proposed rule, 21CC-7.002, on a licensee's qualifications to practice hypnosis. The proposed rule in essence only requires minimal hours in certain hypnotic courses which Dr. Moser has already completed. Dr. Moser would, therefore, meet the Board's own interpretation of Chapter 491.

APPENDIX

CASE NO. 87-4991

Petitioner's Proposed Findings of Fact contained in paragraphs 1, 2, 3, 4, 5, 6 and 11 have been adopted in substance in so far as material.

Petitioner's Proposed Findings of Fact contained in paragraphs 7, 8, 9 and

10 were not shown by the evidence.

Respondent's Proposed Findings of Fact contained in paragraph 1, 2, 3, 4,

5, 6, 8, 9, 10 and 11 have been adopted in substance in so far as material.

Respondent's Proposed Findings of Fact contained in paragraph 7 is subordinate.

COPIES FURNISHED:

Laura Gaffney, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Gary Lane, Esquire Post Office Box 12331

251 E. Intendencia Street Pensacola, Florida 32581

Linda Biedermann Executive Director

Department of Professional Regulation Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS BOARD OF CLINICAL SOCIAL WORK,

MARRIAGE AND FAMILY THERAPY AND MENTAL HEALTH COUNSELING

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

-vs- DPR CASE NUMBER: 0083263 DOAH CASE NUMBER: 87-4991

JOHN A. MOSER,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling (hereinafter referred to as the "Board") at a public meeting held on January 20, 1989, in Tampa, Florida, for consideration of the Recommended Order of the Hearing Officer submitted pursuant to Section 120.57(1)(b)9, Florida Statutes. After review of the complete record by each member of the Board this Order is entered pursuant to 120.57(1)(b)10, Florida Statutes.

FINDINGS OF FACT

The Board, having reviewed the Recommended Findings of Fact adopts and incorporates by reference the Findings of Fact of the Hearing Officer. (Recommended Order attached as Appendix A)

CONCLUSIONS OF LAW

1. Tie Board, having reviewed the Recommended Conclusions of Law, rejects the Hearing Officer's conclusions with respect to the charges contained in Count

   1 of the Administrative Complaint. Instead, the Board finds Respondent to have violated Section 456.33, Florida Statutes, by practicing hypnosis when he was not a practitioner of the healing arts, without the supervision, direction, or prescription and responsibility of a licensed practitioner of the healing arts.

   Further, Respondent is found to have violated Section 490.009(2)(q) by practicing hypnosis as defined in Section 456.32(1) when not qualified as determined by the Board pursuant to Section 490.0141, Florida Statutes.

   Further, Respondent is found to have violated Section 490.009(2)(h), Florida Statutes, by failing to perform the statutory obligation imposed by Section 490.0141, Florida Statutes, of obtaining a determination by the Board that he was qualified to practice hypnosis as defined in Section 456.32(1), Florida Statutes. Finally, Respondent is found to have violated Section 490.009(2)(s), Florida Statutes, by failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance through undertaking activities (hypnosis) for which Respondent was not qualified by training or experience.

   
   

2. The following conclusions of law contained in paragraph five of the Recommended Order's Conclusions of Law is Specifically rejected: "A qualified person is one who is deemed qualified by the referring practitioner (i.e., Dr. Balthrop) by both professional training and experience to employ hypnosis. Dr. Moser clearly had such a reputation in the 'healing arts' community since he received many referrals from the various practitioners from the healing arts and specifically received several referrals from Dr. Balthrop." There is no such testimony in the record. Dr. Balthrop did not testify at the hearing. Mr. Moser testified that Dr. Balthrop refers clients to him but he did not testify that clients were referred by Dr. Balthrop for treatment by hypnosis.

   Petitioner testified that other psychiatrists refer patients to him but he did not state that they were referred to him for treatment by hypnosis.

   Furthermore, there is no evidence in the record that Petitioner's application of hypnotherapy was supervised by any practitioner of one of the healing arts.

   
   

3. The Board, having reviewed the Recommended Conclusions of Law, adopts and incorporates by reference the Hearing Officer's conclusions of law with respect to the charges contained in Count II of the Administrative Complaint.

THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

In light of the violations listed in paragraph 1., above of the Conclusions of Law the Respondent is hereby publicly reprimanded pursuant to Section 490.009(1)(f), Florida Statutes, and Section 491.035(2), Florida Statutes.

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 final order is filed.

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

DONE AND ORDERED this 3rd day of March, 1989.

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

LARRY E. SHYERS

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to JOHN A. MOSER c/o Gary B. Lane, Esquire, 924 North Palafox Street, Pensacola, Florida 32581 and Laura P. Gaffney, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32399- 0750, by U.S. Mail this 10th day of March, 1989.

Docket for Case No: 87-004991

Orders for Case No: 87-004991