PHILIP S. PAUL, )
vs. )
) Case No. 96-4199
DEPARTMENT OF CHILDREN AND ) FAMILIES, f/k/a DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICES, )
Respondent. )
A FORMAL HEARING was held before the Division of Administrative Hearings by Administrative Law Judge, Daniel M. Kilbride, on January 15, 1997 in Melbourne, Florida. The following appearances were entered:
For Petitioner: Philip S. Paul, pro se
Whether the Petitioner has presented clear and convincing evidence that he is of good moral character so as to receive an exemption from disqualification from employment with children or adults who are developmentally disabled, under Section 397.451, Florida Statutes (1995).
This proceeding is the result of Petitioner's request for an exemption from disqualification which was denied by the Respondent's District Administrator, by letter dated August 20,
1996. Thereafter, Petitioner requested an formal hearing before the Division. The disqualification is the result of Petitioner's conviction of a felony in the Commonwealth of Massachusetts in 1986. Petitioner is seeking an exemption so that he may be approved by the Respondent for the purpose of working as a clinical social worker in a substance abuse treatment facility. At the hearing Petitioner testified in his own behalf and presented the testimony of Kathy Palezuelos and Sara Billings, both of whom are licensed clinical social workers, and offered three exhibits in evidence. Respondent presented the testimony of one witness, Deborah Day, Ph.D., Licensed Psychologist, and offered one composite exhibit in evidence.
The transcript of the hearing was prepared and filed on January 30, 1997. The Petitioner did not file proposed findings of fact and conclusions of law as of the date of this order.
Respondent filed his proposals on February 14, 1997.
Petitioner seeks an exemption for employment in a position of special trust for which a security background check is required under Florida law.
In 1977, Petitioner pled nolo contendere to a misdemeanor sexual assault for fondling an adolescent. He was sentenced to probation. Petitioner was 22 years old at the time.
In 1986, Petitioner pled guilty to a felony sexual assault of a 15 year old boy, in the state of New Hampshire. Petitioner was 31 years old at the time.
After serving 2 years of a 3~ to 7 year sentence, Petitioner was released from prison in 1989. Petitioner successfully completed parole and was released in March, 1993.
Petitioner has not been arrested for any crime since 1986.
Petitioner stated he received therapy in prison in a sexual offender program. However, Petitioner presented no evidence of attending a sexual offender program while in prison or afterwards, nor did he submit records of his treatment while in prison.
Petitioner explained the circumstances surrounding the 1986 conviction for sexual assault. While working as an athletic trainer, Petitioner took advantage of a situation while he was
performing massage therapy on a fifteen year old boy, he fondled and performed oral sex on the boy. Petitioner stated the victim consented, as much as a 15 year old can consent.
Petitioner did not explain the circumstances surrounding the 1977 incident.
Petitioner did not express remorse for any sexual misconduct that he committed other than the 1986 offense. He addressed his 1977 charge only to say that had he received more than a slap on the wrist, the 1986 sexual assault might not have occurred.
Petitioner stated he was sexually abused as a child.
In 1993, Petitioner received a Masters Degree in social work from Salem State College in Massachusetts.
Petitioner explained he studied for his masters in social work because he would no longer be eligible for licensure as an athletic trainer. Petitioner stated it would not be appropriate for him to put his hands on adults or children, which is necessary as an athletic trainer. He feels it wouldn't be appropriate for him to be in a position where he could possibly be aroused by an adult, an adolescent or a child. Although Petitioner states he has never been aroused or interested in anyone other than what would be considered a mature adolescent or an adult.
Petitioner is licensed as an independent clinical social worker in the Commonwealth of Massachusetts.
In 1994, Petitioner moved to Florida to work for the Indian River Memorial Hospital in Vero Beach in the psychiatric unit of the Center for Emotional and Behavioral Health.
Petitioner has been denied a license as a clinical social worker in Florida based on his history of sexual misconduct. As a result of his denial of a license, Petitioner must perform his duties under the supervision of another licensed clinical social worker. Working under someone else's supervision means he may continue to work with clients in group or individual therapy.
Kathy Palezuelos, a licensed clinical social worker, has known Petitioner for two and a half years. They worked together at the Center for Emotional and Behavioral Health. She was qualified as an expert in the area of clinical social work.
Ms. Palezuelos performed a mental health status examination on Petitioner on May 2, 1996. She discussed his
homosexuality and the sexual offense at the time she did the mental status exam.
Ms. Palezuelos described herself as more a friend than a colleague. They only worked together about six months. She was sometimes present while he did therapy if they were doing group therapy. He trained her when she first came on the job. Petitioner did not inform her of his past criminal history while they worked together. At the Center for Emotional and Behavioral Health supervision was structured loosely where the therapists would give each other feedback after presenting cases.
Sara Billings is a licensed clinical social worker. She was qualified as an expert in the area of clinical social work. Ms. Billings met Petitioner in January, 1994, at the Center for Emotional and Behavioral Health. She has supervised Petitioner since that time.
Ms. Billings worked with Petitioner for two years before he disclosed his criminal history involving sexual assaults. During those two years Petitioner did therapy on children as well as adults.
In January, 1995, she asked Petitioner to join her in her private practice in Melbourne, Florida. Ms. Billings is not present while Petitioner does therapy. She did not feel the children being treated and their parents should be told about Petitioner's criminal history.
A child is anyone under the age of 18. The Diagnostic and Statistical Manual, Fourth Edition (DSM IV) is an accepted textbook for practicing psychologists. DSM IV states that guidelines for pedophilia are an age difference of 5 plus years between the offender and the victim.
Ms. Billings admitted Petitioner meets the criteria for a pedophile as set forth in the DSM IV. However, she does not believe he is a pedophile because the child Respondent molested was as physically mature as an adult. She bases this opinion on what Petitioner has related to her about his case.
Dr. Deborah Day is a licensed clinical psychologist, licensed mental health counselor and a certified family mediator. Her specialty is clinical and forensic psychology specializing in physical and sexual abuse. She was the consultant for the Child Protection Team and the Sexual Abuse Treatment Program. She is presently on the Board of the Sexual Abuse Treatment Program. She has dealt with approximately 1000 cases involving sexual abuse. She was qualified as an expert in the area of sex offenders and sexual abuse.
Dr. Day reviewed a file provided by the Respondent that included the mental health status exam and copies of the Petitioner's criminal records. The issues presented in the file are issues she commonly deals with in her practice.
Petitioner has not provided sufficient information to make an assessment on whether he is a risk to re-offend. The Mental Status Exam only addresses current levels of functioning.
Full responsibility in the course of treatment for a sex offender means getting past the defense mechanisms offenders use initially in treatment in order to keep their ego safe. Full responsibility for a person's conduct is saying the child or adolescent had nothing to do the adult's conduct. The offenders' responsibility was solely to say "no".
Most homosexuals are not pedophiles. Homosexuals generally either withhold their sexuality or they hide it from the general public. A sex offender with a history of being molested as a child is common.
A convicted sexual offender who has applied to work with children in a therapeutic relationship is a risk to the offender and the child. It sets up a trusting relationship where boundaries have to be closely monitored.
Petitioner's statement that he was confused about his homosexuality in 1986, when he sexually assaulted the 15-year old boy, is minimization, rationalization and demonstrates a superficial understanding of what really happened.
It is denial for a convicted sexual offender to say he is not aroused by children. There has to be sexual attraction if you sexually abuse a child.
Petitioner will be able to continue to work as a social worker and a therapist as long as his clients are adults. Whether or not he discloses his past to adult patients is an ethical matter and not one for the present case.
Petitioner has not testified with candor as to his past conduct. Moreover, Petitioner made conflicting statements and rationalizations with respect to the circumstances surrounding the crimes. He has not produced treatment records to support his claim that he received treatment in a sexual offender program.
Petitioner has not demonstrated by clear and convincing evidence that he is rehabilitated and will not present a danger to children or disabled adults.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.
Under subsection 397.451, Florida Statutes (Supp. 1996), Respondent is required to conduct a screening of employees hired to work for substance abuse service providers
Conviction of a crime under a statue in another state similar to a crime under Section 794.011, relating to sexual battery of a child, is a bar to employment in positions of trust or responsibility. Section 435.06, Florida Statutes (1995).
Section 435.06(2), Florida Statutes (1995) states as follows:
The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07.
Respondent may grant, to any employee otherwise disqualified from employment, an exemption from disqualification from working with children or disabled adults for felonies prohibited under the following conditions:
. . . the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment.
Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures
under Chapter 120. Subsection 435.07(1),(3),
Florida Statutes (1995).
Petitioner has not presented clear and convincing evidence of rehabilitation and that he no longer presents a danger to children or protected adults.
Due to the serious nature of the original crimes, sufficient time has not elapsed to determine that Petitioner is rehabilitated. Petitioner was released from prison in 1989 and has only been released from parole since March, 1993. There was a time span of nine years between his two prior criminal offenses. Research shows that most incidents of sexual abuse go unreported.
Petitioner states he has taken full responsibility for his prior conduct. Yet, he places blame on his homosexuality, the child's arousal, and the child's consent. He then argues that he is not a pedophile because the 15-year old was not really a child by arguing the stages of development of children. He discounts the criteria for a pedophile listed in the DSM IV. He never discussed the harm to the two children he had assaulted except to say no force was used and that he had no further contact with them. Both Dr. Day and Ms. Palezuelos stated that the biggest step in rehabilitation is acceptance of full responsibility. Petitioner has failed to demonstrate that he has accepted full responsibility for his prior conduct.
Petitioner's characterization that in 1986, at the time of the second incident, he was the all-American boy who was confused about his sexuality is, at best, denial. He disregards the fact that he committed a similar offense nine years prior.
Petitioner withheld from Palezuelos and Billings his history of sexual assaults on minors for two years. His disclosure coincides with this employment at Brevard Outpatient Alternative Treatment, which required screening.
While not controlling, subsection 455.2142, Florida Statutes is persuasive of the public policy of the State of Florida that persons with a history of sexual misconduct should not be licensed to do therapy.
Petitioner was clearly able to acknowledge that his profession at the time of the offense presented obstacles to further employment. He then changed his profession to social work which he should have been aware would also present obstacles for a person with a history of sexual misconduct. Petitioner's history presents even further obstacles because he seeks to work with a high risk client population.
Although Petitioner's witnesses were presented as experts in the field of social work, Respondent's expert was experienced specifically in the area of sex offenders and sexual abuse, and her testimony was persuasive.
Based on Petitioner's history, testimony, lack of evidence, and insufficient time elapsed to demonstrate rehabilitation, Petitioner has not proven by clear and convincing evidence that he does not present a danger to the safety and welfare of children or disabled adults.
RECOMMENDED that Petitioner's request for an exemption be DENIED.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1997.
Philip S. Paul
Gregory D. Venz Agency Clerk
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.
