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. ) Case No. 97-0849

)

MARK LEE KNIZE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in Jacksonville, Florida, on April 23, 1998, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Maureen L. Holz, Esquire 1407 Piedmont Drive East Tallahassee, Florida 32312

For Respondent: Elizabeth Renee Alsobrook, Esquire

Alsobrook and Dove, P. A. 2074 Thomasville Road

Tallahassee, Florida 32302-2426 STATEMENT OF THE ISSUES

1. Did Respondent violate Section 491.009(2)(v), Florida Statutes, by failing to maintain in confidence the statements of his patient V.D. made in the course of her treatment with Respondent?

   
   

2. Did Respondent violate Section 491.009(2)(s), Florida Statutes, by failing to meet minimum standards of professional conduct as measured against generally prevailing standards of professional conduct where he engaged in numerous social activities with V.D.?

3. Did Respondent violate Section 491.009(2)(k), Florida Statutes, by engaging in sexual misconduct with V.D. as defined by Section 491.0111 and Rule 59P-10.002?

4. Did Respondent violate Section 491.009(2)(q), Florida Statutes, by violating Rule 59P-9001(4) when he destroyed V.D.'s patient records less than seven years after his last contact with V.D.?

STATEMENT OF CASE

On March 4, 1996, the Petitioner filed an Administrative Complaint in the Agency for Health Care Administration,

Case No. 95-03085, against Respondent, alleging that he violated the above-cited subsections of Florida Statutes. The Respondent subsequently requested a hearing on the disputed issues of material fact. The case was referred to the Division of Administrative Hearings. The case was heard on April 23-24, 1998, after several continuances.

Petitioner offered the testimony of V.D., P.Y., and Lillian Everetts. Deborah Irene Frank testified as an expert witness in the field of marriage and family therapy. In addition,

Petitioner offered three (3) exhibits: P-1 is an affidavit of the Respondent; P-2 is Petitioner's Request for Admissions; and P-3 was to be the resume of P.Y., which was to be filed as a late exhibit. In lieu of the resume, P-3 was filed as written verification of P.Y.'s employment dates.

Respondent offered the testimony of himself, Brad McFaddin, Lawrence Abney Kelley, III, Gerd Gerkish, and Shelley R. Geiger Lindsey. In addition, the Respondent offered copies of previous Final Orders of the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling.

The proposed recommended orders of the parties were originally due on May 15, 1998. This date was extended to May 29, 1998, by agreement of parties. Both parties filed proposed findings which were read and considered.

FINDINGS OF FACT

1. Respondent is and at all times material hereto was a licensed marital and family therapist, license number MT0001290.

2. Respondent had a professional relationship with T.G. who is V.D.'s son. Respondent's professional relationship with T.G. began in the late 1980's and continued until 1994.

3. Respondent had a professional relationship with V.D. as her personal therapist during the late 1980's while he was also treating her son.

4. Respondent had a professional relationship with V.D. and her husband as their marriage counselor from 1988 through 1989.

5. In May, 1993, V.D. expressed a desire to have a sexual relationship with Respondent.

6. After becoming aware of V.D.'s sexual interest in him, Respondent participated in a numerous social activities with V.D., to include seeing her alone for extended periods of time.

7. These occasions were:

   
   

   1. In May of 1993, when Respondent accompanied V.D. to an area of Mayport, where they parked for approximately two hours.

   2. On Friday of Memorial Day weekend, 1993, when V.D. arrived uninvited at the home of Respondent's parents where Respondent was residing. The Respondent invited V.D. into the home at approximately 7:00 p.m., and allowed V.D. to remain in the home until 2:00 a.m., Saturday.

   3. On Saturday morning of Memorial Day weekend, 1993, when

      
      

      V.D. returned uninvited to the home of Respondent's parents at 7:00 a.m., Respondent invited her in. He made coffee, which they drank on the back porch.

   4. In June of 1993, when Respondent allowed V.D. to drive him to the empty house of Respondent's friend B.J. The drive was approximately 20-25 miles. Id. They spent 1 1/2 to 2 hours alone together on this trip.

   5. In June of 1993, when Respondent met V.D. at the empty house of a different friend of Respondent located on Dunn Avenue. The purpose of this meeting was to review V.D.'s patient records.

   6. On at least one occasion, Respondent, having obtained a ride to V.D.'s residence for the purpose of an in-home appointment with V.D.'s son, allowed V.D. to drive him to his then estranged wife's home after the appointment.

8. Respondent acknowledges a therapist's duty to establish clear lines between professional and social relationships.

9. Respondent admitted to "blurring" that line in his relationship with V.D.

10. Respondent admitted that he should not have done many of the activities described above in paragraph seven.

11. Respondent admitted that his behavior created the appearance of impropriety.

12. While V.D. was at the Dunn Avenue home, she reported she observed boxes stored in a manner that made them accessible to anyone entering the home. She did not examine the boxes. The Respondent stated the boxes that V.D. observed were not patient records, but other materials he was storing. He kept records in a locked footlocker.

13. V.D. asked Respondent to destroy her records and those of her son.

14. Respondent admits to destroying V.D.'s patient records and those of her son prior to the end of the statutorily required holding period.

15. Respondent has worked at the Florida State Prison as a "psychological specialist, forensics/corrections" since November 5, 1993.

16. At Florida State Prison, Respondent worked with P.Y., who was a clerk typist for all of the psychologists at the prison. P.Y. and the Respondent car-pooled to work for a time.

17. During the period when Respondent and P.Y. worked together, P.Y. spoke to Respondent regarding her marital difficulties. This was not a professional relationship.

18. Respondent engaged in a very brief sexual relationship with P.Y. This occurred after he learned about her marital difficulties.

19. During her employment at Florida State Prison, P.Y. asked Respondent about V.D., who P.Y. knew casually because both women knew and were friends with Lillian Everetts, who was their hairdresser.

20. P.Y. was privy to information about V.D. and her son which she had acquired from Ms. Everetts.

21. P.Y. commented to Respondent that V.D. appeared very thin and might be anorexic. The Respondent, who had never treated V.D. for an eating disorder, but who had given her the name of a specialist in such matters, advised Mr. Yoe that V.D. had some eating disorders.

22. In a conversation in their office, the Respondent revealed to P.Y. that V.D. had once inquired about hypnotic therapy to determine if she had been molested as a child.

23. V.D. testified that she had engaged in sexual intercourse with Respondent during May and June of 1993. V.D. contemporaneously reported this liaison to Lillian Everetts. The Respondent denies that such a relationship occurred, but admits to seeing V.D. at some of the times and places at which V.D. claims they had sexual liaisons. See paragraph 7 above.

24. The testimony of V.D. is more credible, and the Respondent engaged in a sexual relationship with V.D. in May and June of 1993.

25. Having a sexual relationship, with a former client/patient is a violation of professional standards.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.

27. Petitioner is the state agency charged with regulating the practice of Clinical Social Work, Marriage and Family Therapy, and mental health counseling pursuant to Chapter 455 and Section 20.42, Florida Statutes.

28. The Petitioner must prove Respondent committed the acts alleged in the complaint by substantial and competent evidence.

29. Petitioner was charged in the Administrative Complaint with violating Section 491.009(2)(v), Florida Statutes, which requires a therapist to maintain in confidence communications made by patients being treated by him.

30. Respondent disclosed confidential information to P.Y. regarding V.D. related to the Respondent by V.D. in the course of treating V.D. This information included V.D.'s inquiries about hypnosis. Such disclosure constitutes a failure to maintain a patient's information, and violates the statute.

31. Petitioner dismissed Count II charging Respondent with violating patient confidences with regard to V.D.'s son.

32. Petitioner was charged in the Administrative Complaint with violating Section 491.009(2)(s), Florida Statutes, which requires a therapist to conform to minimum standards of performance in professional activities as measured against generally prevailing standards. Petitioner also was charged by

    
    

    Administrative Complaint with violating Section 491.009(2)(k), Florida Statutes, which prohibits sexual misconduct by a therapist.

33. The Respondent engaged in sexual intercourse with a former patient. The Respondent violated Rule 59P-10.002, and Section 491.0111, Florida Statutes, as well as

    Section 491.009(2)(s), Florida Statutes.

    
    

34. Petitioner was charged by Administrative Complaint with

    violating Section 491.009(2)(q), by violating Rule 59P-9.001(4), Florida Administrative Code, which requires a therapist to maintain patient records for seven years after the last contact. The rules does not permit the client to waive the requirement.

    Respondent admitted to destroying the records contrary to the rule and statute.

35. Regarding the mitigation of the sexual misconduct, the record is unclear exactly when the Respondent last treated V.D. It appears clear that at the time of their sexual liaison that

    V.D. had not been a patient/client for a number of years. It is also clear that V.D. was actively pursuing the Respondent at the time of the liaison. Further, this liaison was not an out-growth of a patient/therapist relationship.

36. Regarding the destruction of V.D.'s records, the Respondent was complying with the expressed wishes of V.D. in destroying the records. Contrary to the suggestion that V.D. wanted to destroy the records because of how they were kept, V.D. did not see the boxes until she went to the storage site to retrieve them for destruction.

37. Lastly, regarding the failure to keep patient information confidential, P.Y. obtained information about V.D. from Lillian Everetts and from Respondent. The record does not clarify the nature and quality of the information P.Y. learned from Ms. Everetts about V.D., and the nature of the information obtained from Respondent.

38. While this does not excuse revealing confidential information, it raises the perplexing question of what information P.Y. learned from Respondent and what she learned from Ms. Everetts or V.D. The burden lies on the Petitioner to establish the nature and quality of the act to support its requested penalty. It has not done so.

39. Lastly, the Respondent is currently employed by the Florida State Prison system, and poses little potential danger to his current patients from sexual impropriety.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law and the factors in mitigation, it is

RECOMMENDED:

That the Respondent be placed upon probation; be required to attend courses in professional responsibilities; be restricted from unsupervised practice; and be required to practice with professionals who are advised of these findings and Respondent's violation of these statutes, and who will agree to monitor and supervise Respondent's work.

DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998.

COPIES FURNISHED:

John O. Williams, Esquire Maureen L. Holz, Esquire 1407 Piedmont Drive East Tallahassee, Florida 32312

Elizabeth Renee Alsobrook, Esquire Alsobrook and Dove, P. A.

2074 Thomasville Road

Tallahassee, Florida 32302

Angela T. Hall, Agency Clerk Department of Health Building 6

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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: 97-000849

Orders for Case No: 97-000849