Findings Of Fact With regard to Counts I and II of Division of Beverage Case No. 3-75- 43A, the Hearing Officer enters the following findings of fact: On the evening of April 16, 1975, Detective H. R. Hall, of the Jacksonville Vice Squad, was working the Out of Sight bar, which is the licensed premises of Respondent. Upon entering the bar, Hall sat down and ordered a beer. Sarah Jane Smith, dressed as a topless dancer, came over to Hall and asked if she could dance for him. She told him it was $2.00 a dance which Hall Paid before she began dancing. Hall had no conversation with Smith prior to, or during her dancing, concerning Smith exposing her vaginal area. While dancing for Hall, Smith rubbed up against Hall with her vagina and buttocks and repeatedly exposed her vagina for four or five seconds by pulling down her bikini pants. Shortly after Smith danced for Hall, Dorothy Pesnell Edwards, who was dressed as a topless dancer, came over to Hall and offered to dance for him for $2.00 a dance. Hall paid her $2.00 and she began dancing. As she danced she would straddle Hall's leg and rub her vaginal area and buttocks against him. Hall did not discuss with Edwards, her touching him before she began dancing. After Edwards danced for Hall, Hall arrested both Smith and Edwards. Upon their arrests the manager of the Out of Sight bar instructed them to get their clothes from a back room of the bar and to go with the officer. On April 16, 1975, Sarah Jane Smith and Doris Pesnell Edwards, were agents, servants or employees of the Respondent, working as topless dancers in the Out of Sight bar. With regard to Division of Beverage Case No. 3-75-41A, the Hearing Officer enters the following findings of fact: On May 23, 1974, Beverage Officer R.B. Bagget entered the licensed premises of Respondent at the Out of Sight bar. A female employee of Respondent, Rose Estelle Carter Gibson, required a cover charge from Bagget. Bagget told her he was a Beverage Officer and on official business and showed her his Beverage I.D. card. In a loud voice Gibson called Bagget a "Pig". In the ensuing confrontation, Bagget showed Gibson his badge and asked for her identification. Gibson stated that she had no identification and, when asked her name by Bagget, she replied, "Peanuts". Gibson took Bagget to her purse and after Gibson failed to heed two requests by Bagget to empty her purse, Bagget took the purse and emptied it. There was no identification in the purse. Bagget then tried to put the contents back in the purse, where upon Gibson grabbed his arm and told him to stay away and then threw the purse away from him. Bagget stated he was checking to see if Gibson was under age. The manager of the bar told Gibson to cooperate with Bagget. The Respondent is the holder of Beverage License No. 26-449, 4-COP. CONCLUSIONS OF LAW Proper notice, as required by law, was given of this hearing. With regard to Division of Beverage Case No. 3-75-43A, Counts I, II and III, the Hearing Officer enters, the following conclusions of law: Section 796.07, Florida Statutes, defines the term "lewdness" as including ". . any indecent or obscene act." In Chesebrough v. State of Florida 225 So.2d 675 (1971), the Supreme Court stated that "(l)ewdness may be defined as the unlawful indulgence of lust, signifying that form of immorality which has a relation to sexual impurity. It is generally used to indicate gross indecency with respect to the sexual relations." Subsection 796.07(3)(a), Florida Statutes, states that it shall be unlawful in the State of Florida to offer to commit, or to commit, or to engage in prostitution, lewdness, or assignation. Sarah Jane Smith and Doris Pesnell Edwards engaged in lewdness as defined by statute and the Supreme Court of Florida and Prohibited by Subsection 796.07(3)(a), Florida Statutes, when, on April 16, 1975, as found above, while topless, they danced for a male patron of the Respondent by rubbing their vaginas, buttocks and legs on the patron, which acts took place in a public bar. Section 800.03, Florida Statutes, makes it unlawful for any person to expose or exhibit his or her sexual organs in any public place in a vulgar or indecent manner or to expose or exhibit his or her person in such place or to go and be naked in such place. The exposure of her vagina by Sarah Jane Smith as set forth in the findings of fact above, constitutes a violation of Section 800.03, Florida Statutes. See Hoffman v. Carson, 257 So.2d 891 (1971). With regard to Division of Beverage Case No. 3-75-41A, the Hearing Officer enters the following conclusions of law: Officer Bagget was engaged in the lawful execution of his duty as required by Section 843.02, Florida Statutes, when the acts referred to in paragraph 2, above, occurred. However, it does not appear to the Hearing Officer that the acts committed by Rose Gibson constitute such obstruction or opposition of Officer Bagget as to be a violation of Section 843.02, Florida Statutes. While Gibson's acts were not those of a cooperative person, the direction of Gibson toward Bagget of the epithet Pig, does not, by itself, constitute obstruction or opposition of an officer. Further, when Bagget asked Gibson for identification, she stated that she had none and upon a questionable search of Gibson's purse, Bagget found her statement to be true. It is also noted that Gibson did not grab Bagget's arm and take the purse away from him until after he had searched her purse and was attempting to put the contents back in the purse so that he could return it to Gibson. The Respondent is the holder of Beverage License No. 26-449, 4-COP. All Motions not otherwise disposed of are hereby denied. Subsection 561.29, Florida Statutes, gives the Division of Beverage the power and authority to revoke or suspend the license of a licensee, or to impose a civil penalty against a licensee, not to exceed $1,000.00, for violations arising out of a single transaction, when it is determined that the licensee or its agents, officers, servants or employees have violated any of the laws of the State of Florida. The violations by Sarah Jane Smith on the night of April 16, 1975, arise out of a single transaction as that language is used in Subsection 561.29(4), Florida Statutes, with regard to the imposition of a civil penalty. On April 16, 1975, Sarah Jane Smith and Doris Pesnell Edwards were agents, servants or employees of the Respondent.
The Issue The issue for consideration in this hearing is whether Respondent’s license as a psychologist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein the Board of Psychology was the state agency in Florida responsible for the licensing and professional discipline of psychologists in Florida. Respondent is and has been licensed as a psychologist in Florida and is subject to the jurisdiction of the Board of Psychology. During the period April 11, 1995, through August 7, 1995, Respondent was employed as a psychologist at the University of South Florida Counseling Center for Human Development. In that capacity, Respondent saw the Complainant, K.R., on several occasions and established a psychologist-client relationship with her. At the initial visit of K.R. to his office, Respondent conducted an initial intake evaluation of her and, in his client notes, defined the goal of his continued treatment of her as being to assist Ms. K.R. in stabilizing her depression; and to clarify her needs and patterns with regard to her career and relationships. Upon completing the intake evaluation of K.R., Respondent referred her to himself as treating therapist, and between the initial meeting and the end of August 1995, met with her approximately thirteen times. Review of Respondent’s notes regarding his sessions with K.R. reveals that they discussed her relationship with her parents; her relationships with men; her ability to deal with her emotions, her anxiety, and depression. K.R. relates that during many of their sessions, Respondent told her she had nice legs and was very sexy. He also told her of his personal life, including his dissatisfaction with his marriage, and it appears that he met with her outside his professional office on a purely social basis. K.R. claims Respondent told her not to tell anyone about their friendship outside the clinic. The relationship between Respondent and K.R. culminated in their engaging in sexual intercourse which resulted in her becoming pregnant. The pregnancy was subsequently aborted. As a result of their relationship, K.R. filed a complaint against Respondent with the Board of Psychology relating the sexual nature of their relationship. Subsequent to the filing of K.R.’s complaint against Respondent, and the Agency For Health Care Administration’s (Agency) filing of an Administrative Complaint against him, the Agency deposed Dr. George J. Rockwell, Jr., a retired psychologist with a specialty in school psychology. Dr. Rockwell did not meet with Respondent or speak with him in any capacity. He examined the file collected in this case regarding the allegations against Respondent, and from his review of all the material, concluded that Respondent had established a psychologist/patient relationship with K.R. This relationship involves trust and the generation in the patient of a basic belief that the psychologist has the skills and knowledge that would assist the patient in dealing with whatever problems he or she has. The patient develops the ability to talk to a non- critical, non-judgmental person in an effort to help him or her deal with their problems or concerns. The psychologist has the responsibility to create an emotionally safe environment for the patient. In this process the patient is often made vulnerable. The patient must be open with the psychologist and feel comfortable in sharing emotions and incidents which he or she would most likely not be able to share with others. It is without question a special relationship, and in Dr. Rockwell’s opinion, it is unlikely that a patient will work with a psychologist and not form that special relationship. This special relationship places upon the psychologist special responsibilities toward the patient. These include abiding by the laws and rules relating to the practice of psychology; having respect for the patient; and keeping all matters confided by the patient confidential. In addition, the psychologist has the responsibility to comport himself or herself in a manner so as to maintain a professional relationship and distance with the patient. Specifically, sexual relationships between a psychologist and his or her patient are normally prohibited as being beyond boundaries that should not be crossed. It is the psychologist’s responsibility to set the limits on behavior so as to prevent an inappropriate relationship from developing. This applies even if the patient initiates sexual advances. These advances would not excuse the psychologist from professional responsibility toward the patient. In the event the psychologist detects what appear to be inappropriate sexual advances from the patient, the psychologist had a duty to discuss this with the patient; talk about the nature of the psychologist/patient relationship; and explain that such a relationship would not be appropriate. The constrictors on the professional are even more specific in the event the psychologist finds himself or herself sexually attracted to the patient. Under no circumstances should the professional act on those feelings, but should evaluate the situation to ensure that those feelings are in no way interfering with the therapeutic relationship. There is absolutely no situation which Dr. Rockwell can think of in which it would be appropriate for a therapist to engage in sexual relations with a patient, either during or after termination of a therapy session. Inappropriate sexual contact between a therapist and a patient can have severe and deleterious effects on a patient. These might include feelings of guilt and depression, based on the patient’s belief that the inappropriate behavior was his or her fault. The patient might also feel embarrassment and be reluctant to undergo further treatment. Further, the patient would most likely lose trust in the involved therapist and potential other therapists. Dr. Rockwell concluded that notwithstanding Respondent’s contention that he saw K.R. solely for the purpose of career counseling, and at no time entered a psychologist/patient relationship with her, Respondent’s clinical notes regarding K.R. clearly indicate a professional psychologist/patient relationship was formed. An independent review of the records supports that conclusion, and it is so found. Even were the counseling limited solely to career counseling, it would still constitute counseling, the conduct of which is covered by the standards of the profession. Here, however, Dr. Rockwell is convinced that Respondent’s conduct toward K.R., as alleged, constituted sexual misconduct in the practice of psychological counseling which fell below the minimum standards of performance and professional activities when measured against generally prevailing peer performance. It is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Psychology enter a final order in this matter finding Respondent guilty of all Counts in the Administrative Complaint, and revoking his license to practice psychology in the State of Florida. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 3rd day of March, 2000. COPIES FURNISHED: Maureen L. Holz, Esquire Williams & Holz, P.A. 211 East Virginia Street Tallahassee, Florida 32301 O. C. Allen, Qualified Representative 314 West Jefferson Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Kaye Howerton, Executive Director Board of Psychology 1940 North Monroe Street Tallahassee, Florida 32399-0750 Amy M. Jones, Acting General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact On February 21, 1975, H. R. Hall was working as an undercover detective for the Jacksonville Vice Squad. During the evening of that date Detective Hall entered the Silver Dollar Bar and Package Store, sat in a booth and ordered a beer. Sarah Lynn Swain, LuAnn Marie Docker and Lee Ann Remm, on the evening of February 21, 1975, were dressed as topless dancers and performed as topless dancers in the Silver Dollar Bar and Package Store. The three foregoing persons were agents, servants or employees of the Respondent. While seated in a booth Detective Hall observed Sarah Lynn Swain dancing topless between the legs of a male customer, who was fondling her buttocks while she placed her breast in the customer's mouth. Also while seated in the booth, Detective Hall observed LuAnn Marie Dockery dancing topless for a male customer and allowing the customer to fondle her buttocks. While in the Silver Dollar Bar and Package Store on February 21, 1975, Lee Ann Remm performed a topless dance for Detective Hall and while so dancing straddled his leg and undulated back and forth. Further, she attempted to place her breast in Detective Hall's mouth. Detective Hall paid her $2.00 to dance for him, but did not discuss with her, nor request the privilege of touching her. The Respondent is the holder of Beverage License No. 26-1334,4-COP and the licensed premises are the Silver Dollar Bar and Package Store.
Findings Of Fact Petitioner, Mary Anna Cline (Ms. Cline), is a fifty-two year old female who was employed by USBI Company (USBI) from 1985 until November 15, 1994. USBI refurbishes the solid rocket boosters for the space shuttle program at the Kennedy Space Center, Brevard County, Florida. It employs substantially more than fifteen full-time employees. Ms. Cline was hired for the position of technical illustrator, which position is responsible for drawing mechanical components, doing illustration and charts, and preparing manuals and documents that apply to the day-to-day work of the company. She was a good employee and had excellent technical skills, as reflected in her performance evaluations and numerous commendations. At the time that she left the company, she was in a position titled "senior technical illustrator." In early 1992 the company had some internal reorganization, and Ms. Cline and a group of employees were transferred from Management Services to Documentation Support. The job duties remained substantially the same, but the new group also had responsibility for the Routing of Documents (RODS) program, which involved the tracing of detailed technical drawings, to be used on a computer mainframe by the "techs" (engineers). Documentation Support generated technical documentation for the rockets, all technical manuals, standard procedures, testing, fliers and presentations - generally all of the paperwork used by the company, including verbiage and graphics. The supervisor of Documentation Support, then and now, is a woman, Monica Teran. Approximately seventy-five percent of Ms. Cline's work group were women. In June 1992, Richard Bowen was hired by USBI as a technical illustrator and was assigned to Documentation Support. He became a coworker of Ms. Cline and their assigned work stations were side-by-side without a partition. Richard Bowen's two main hobbies are photography and computers. He was generally accepted as the computer expert in the work group; when there were problems with the computers, Richard Bowen could often work them out. Bowen's interest in photography is also more than a casual avocation. He attended photography school in Chicago when he was younger and worked with a modeling agency. He holds an occupational license to conduct a photography business and performs commercial photography services that do not conflict with his 9-5 job: weddings, portraits, some modeling photographs and some work with a theme park in Orlando. He is a member of the Audubon Society and takes wildlife photographs and does computer work for the organization. The Photograph Incident Staff in the work group were interested in Bowen's photographs. He brought samples of his pictures to work to show off. He usually left the pictures on his desk, face up, so that people could come to his work area and look at them. Some time in the latter months of 1992, Bowen purchased an expensive special soft-focus lens that gives the subject a soft, romantic, mystical look and deletes the wrinkles or blemishes. He discussed the lens with a fellow photographer at work and brought in a sample of photographs he had taken with the lens. Most of the pictures among the twelve to fifteen which he brought on this occasion were wildlife; there also were a few photographs of a model. She was bare-breasted, but was not exposed from the waist down. While there is no clear description of her pose in the record, she was described by some as nude and others as partially nude. None described the photographs as sexually suggestive or pornographic. In the early morning before work started, some female staff members were shuffling through the photographs. Ms. Cline was part of the group looking on. Bowen said something semi-jokingly like, "You might not want to look at these; there's a bare-breasted model." One of the women replied that it was nothing that she had not seen before, and continued shuffling through the photographs. Ms. Cline saw the model's photograph, remarked that the girl had pretty eyes, and returned to her own work station. Several months later, after a workshop that management had initiated to deal with problems in the workplace, Ms. Cline reported the photographs to Carol DuBray, Director of Human Resources and Darryl LeCanne, the immediate supervisor of Monica Teran. Ms. Cline was embarrassed by the photographs. Management's Response As soon as Ms. Cline left Darryl LaCanne's office, he called Monica Teran, and the two supervisors met with Richard Bowen. They informed him that USBI had a policy of not tolerating nude photography or pin-up calendars in the workplace and that his bringing the photographs to work was unacceptable behavior. Darryl LaCanne told Richard Bowen that the next time severe disciplinary action would be taken. Richard Bowen was also called in to speak with USBI's director of security, Barry Wysocki. Mr. Wysocki informed him that nude pictures were prohibited by USBI's regulations. Mr. Bowen received the message in clear terms that the matter was very serious. Bowen never again brought nude or semi-nude photographs to work and Ms. Cline never again saw such photographs at work. Offensive Shop Talk Work stations in the Documentation Support unit were divided into cubicles, some separated by dividers, some (Richard Bowen's and Ms. Cline's) were side by side, facing a partition with two other workers on the opposite side. Workers interacted within a small space and moved about to use different computer equipment, printers, files, and similar work tools. Among some of the workers there was occasional bawdy banter and comment about boyfriends, weekends and vacations, and the like. It was sexually oriented in a sophomoric, adolescent schoolyard manner. It included terms like "shit" and "fuck" and included conversation about "blow jobs" or "hard-ons," and other slang words involving male genitalia. With one exception, the language was not directed to Ms. Cline. That exception was one occasion when Richard Bowen responded to her criticism of some work with the expletive "fuck." Both male and female workers engaged in the banter, which was overheard by Ms. Cline and others. Ms. Cline was particularly offended by banter between Bowen and a female worker, Anna Silvestri, who occupied a workstation on the other side of the partition in front of Ms. Cline and Mr. Bowen. Ms. Silvestri sometimes initiated this banter. In May or June of 1993 Ms. Cline reported to her supervisor, Monica Teran, that Richard Bowen and Anna Silvestri used the word "fuck" and engaged in sexually explicit conversations. Ms. Teran went to her supervisor to see what to do about the complaint and Carol DuBray requested that Barry Wysocki conduct an investigation. Barry Wysocki interviewed and took statements from employees in the Document Support Unit, including Ms. Cline. She complained that Richard Bowen created a hostile environment; that she heard him say "fuck" on one occasion in the past two months and that she heard Anna Silvestri say the word on two occasions. Ms. Cline said that Bowen and Silvestri discussed Ms. Silvestri's sex life and that on one occasion Ms. Silvestri tried to discuss her sex life with Ms. Cline, but she cut her off with a comment that it was improper. Ms. Cline reported hearing Monica Teran and Beth Seaman use the word "fuck" in the work area. Bowen and Silvestri did not deny mild profanity and mildly sexual conversations. Other employees reported hearing some profanity, primarily "shit," "damn" and "bullshit." Richard Bowen and Anna Silvestri were seriously reprimanded by Barry Wysocki, by Barry Smoyer, by Darryl LaCanne and by Monica Teran. Each supervisor impressed on the two employees that the use of foul language was not tolerated and was against company policy. Barry Smoyer gave the two employees a letter "for the record," documenting the counselling session and reprimand. Monica Teran moved Ms. Cline to Anna Silvestri's workstation on the other side of the partition from Richard Bowen. She moved Anna Silvestri two cubicles away, with several partitions between her and Mr. Bowen. And George Roberts was placed next to Richard Bowen in Ms. Cline's former workstation. The intent by the supervisor was to accommodate Ms. Cline's concerns and to separate the two prime offenders. In the two years that he worked for USBI, including the time that he worked next to Richard Bowen, George Roberts heard nothing more than "hell" or "damn" from Bowen. Nevertheless, around August 1994, during her performance review, Ms. Cline informed Monica Teran that the sexual conversations were continuing. Ms. Teran informed her supervisors and another investigation commenced, this time by USBI's new security director, Al Eastlack. Mr. Eastlack conducted an interview with Ms. Cline, among others, and took her formal statement in September 1994. Barry Smoyer reviewed a draft report of Mr. Eastlack's investigation and although he understood the results were "inconclusive," Mr. Smoyer renewed his admonishments to Richard Bowen and Anna Silvestri in separate memoranda to the two, reminding them of USBI's intolerance of sexual harassment in any form and warning them that inappropriate language would result in disciplinary action. Alleged Threats After the photograph incident, but before she complained, Richard Bowen and Mary Anna Cline had a conflict over the use of some computer graphics software. Bowen was advocating one type of software that Ms. Cline opposed. Monica Teran had to intervene and instructed Ms. Cline to install the program and learn how to use it. After she complained about the photographs, Ms. Cline became convinced that Richard Bowen was going to retaliate. She complained to Monica Teran that she was afraid of Bowen but her complaints were non-specific. She began to complain of stress and sleep problems. Ms. Teran recommended that she go to the Employee Assistance Program (EAP) counsellor or to see her own counsellor or doctor. This was around the same time that Ms. Cline complained about the offensive language and conversations, and Ms. Cline took the recommendation to mean that Ms. Teran did not believe her, or that Ms. Teran felt Ms. Cline was at fault. Ms. Teran also commented to Ms. Cline that she should simply tell Bowen to stop talking like that. Another employee, Dorothy Stokey, who was offended by Bowen's use of "fuck" had told him to stop. Ms. Cline was too intimidated by him to confront him directly. Some time in the latter months of 1993, Monica Teran found Ms. Cline in the ladies' room crying and upset to the point of incoherence. Ms. Cline had overheard a conversation between Richard Bowen and Anna Silvestri involving a gun and made a connection between that and incidents of violence in the workplace and coworkers being shot. With the help of Barry Smoyer, Ms. Teran was able to get Ms. Cline out of the ladies' room and calmed down. Then, at Mr. Smoyer's direction, Ms. Teran called Ms. Silvestri and Mr. Bowen into her office to find out what had happened. Mr. Bowen did not have a gun at work and he had been discussing a gun show early that morning. Ms. Teran was satisfied that the discussion had been innocuous and reported her findings to Barry Smoyer. No other employee reported that Bowen had a gun or saw him with a gun. None, including Ms. Cline, ever complained that Bowen had threatened them with a gun. Alleged Retaliation Ms. Cline contends that USBI retaliated against her for reporting sexual harassment. Specifically she claims that her job duties were shifted from work on RODS, which she liked, to word processing, which she disliked and with which she had difficulty, due to some dyslexia. It is undisputed that Ms. Cline was a very competent graphics illustrator. She and Mr. Bowen and a couple of other employees in the unit were considered the core of the illustration function, and other employees in the unit preferred and were more skilled in the word processing and language component of the unit's responsibilities. However, the work assignments were not so clearly divided between "illustration" and "word processing." The production and modification of company manuals required both types of work. Monica Teran was interested in cross-training her staff to do a variety of tasks. There was a time, after mid-1993, when Ms. Cline's assignments involved word processing. She also continued to do a substantial amount of RODS work, as evidenced by handwritten logs maintained by the employees. Monica Teran never instructed the staffperson responsible for making assignments to remove Ms. Cline from RODS or other graphics work. RODS was not considered high profile or creative work since it primarily involved tracing technical components repetitively. There was a period when RODS work was put on hold. There was another period when temporary employees, such as George Roberts, were taken in to work exclusively on RODS. At no time during her employment with USBI was Ms. Cline demoted in job title or pay. In 1993 and 1994 her employment evaluations reflected a need to improve communications and attendance, but she was still rated "excellent," "good" and "acceptable" in all categories, and overall "excellent" and "good." There is no evidence to indicate that anyone tampered with Ms. Cline's computer or sabotaged her computer, as she claimed. On occasion it was necessary for Monica Teran or other staff to work at Ms. Cline's and other stations, to see if programs were loaded or the machine was set up properly. Although certain equipment, such as a printer, was located at an individual workstation, other staff needed access to that equipment. Job-Related Stress Ms. Cline's attendance did suffer and she did experience job-related stress. She went to an EAP counsellor and to a psychiatrist. She was on medication and there were problems with adjusting the type and amount of medication. Ms. Cline experienced sleep disorders; she reported falling asleep at the wheel of her car and had a minor accident. She also experienced other physical phenomena such as pains in her chest and arms, or numbness. Her psychiatrist diagnosed her medical condition as "adjustment reaction of adult life with mixed emotions, basically depression and anxiety." (T-415) Accommodation and Resignation Monica Teran's staff was located in two buildings: the modular unit occupied by Ms. Cline, Mr. Bowen, Ms. Silvestri and others; and another separate building which also included other USBI employees. Ms. Teran's staff was moved around routinely, as new employees were added or other work space needs arose. In Fall 1993 USBI offered to move Ms. Cline to the other building, allowing her to retain her same position and duties; she declined, and the company did not insist that she move. Later, Ms. Cline was offered a lateral position at the same pay and position level. Carol DuBray met with Ms. Cline to discuss this attempt to accommodate her. Ms. Cline also rejected that offer. She explained at hearing that she was afraid she would have been in line for a layoff, if she transferred. However, there is no competent evidence to support that fear. Ms. DuBray explained to Ms. Cline in their meeting that she would retain all benefits, including seniority. In fact, USBI has no departmental seniority policy. Seniority is based on the date an individual is hired by the company, rather than time within a department in the company. On November 15, 1994, Ms. Cline voluntarily resigned, citing "continuing stress brought on by sexual harassment, discrimination, retaliation and the flagrant disregard by USBI and its management in the handling of this problem. . . ." (Petitioner's exhibit no. 31) The Formal Complaints At the time she resigned Ms. Cline had already filed her complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC). That charge is dated December 6, 1993. The charge of discrimination alleges violations of Title VII of the Civil Rights Act, by sexual harassment and retaliation. It does not cite the Florida Civil Rights Act, Chapter 760, Florida Statutes. Pursuant to a worksharing agreement between EEOC and FCHR, the charge was sent to the Florida agency for initial investigation. That workshare agreement, which refers to the FCHR as the "FEPA," provides, in pertinent part: FILING OF CHARGES OF DISCRIMINATION In order to facilitate the filing of charges of employment discrimination, the EEOC and the FEPA each designate the other as its agent for the purpose of receiving and drafting charges. The FEPA shall take all charges alleging a violation of Title VII, ADEA, EPA, or the ADA where the parties have mutual juris- diction and refer them to the EEOC for dual filing, so long as the allegations meet the minimum requirements of those Acts. Each Agency will inform individuals of their rights to file charges with the other Agency and to assist any person alleging employment discrimination to draft a charge in a manner which will satisfy the require- ments of both agencies to the extent of their common jurisdiction. As part of the intake duties, investigators are to verify with the charging parties if they have filed a charge of discrimination with other agencies prior to filing the charge. For charges that are to be dual-filed, each Agency will use EEOC Charge Form 5 (or alternatively, an employment discrim- ination charge form which within statutory limitations, is acceptable in form and content to EEOC and the FEPA) to draft charges. When a charge is taken based on disability, the nature of the disability shall not be disclosed on the face of the charge. * * * H. The delegation of authority to receive charges contained in Paragraph II. a. does not include the right of one Agency to determine the jurisdiction of the other Agency over a charge. * * * DIVISION OF INITIAL CHARGE-PROCESSING RESPONSIBILITIES * * * D. EEOC will not defer or refer any charge for the FEPA to process that is not jurisdictional on its face with both Agencies. If it is apparent that one Agency might have jurisdiction when another does not, then the Charging Party will be referred to the appropriate Agency. * * * (Petitioner's exhibit no. 41) (emphasis added) A notice dated December 20, 1993, on EEOC form 212, states that the FCHR has received the charge and will initially investigate the charge. The FCHR did investigate the charge and the FCHR investigator's report is dated July 13, 1994. A document styled "Determination: No Cause" is dated August 25, 1994 and has the apparent signature of FCHR's Executive Director. An accompanying document, with the same date, is styled "Notice of Determination: No Cause" and informs Ms. Cline as complainant of her right to file her petition for relief within 35 days. The petition for relief dated September 27, 1994, was filed with FCHR, and cites the Florida Civil Rights Act of 1992, as well as Title VII. The petition alleges sexual harassment and retaliation. FCHR transmitted the petition to the Division of Administrative Hearings on October 6, 1994. The amended petition for relief, filed on April 10, 1995, and referenced in the order and notice of hearing dated May 16, 1995 deletes any reference to Title VII and recites instead that the claims for relief are based on Section 760.10, Florida Statutes. The amended petition does not claim constructive discharge nor does it mention that Ms. Cline left the company approximately five months earlier. Sexual Harassment Policy and Summary of Findings USBI has, and during the relevant period had a sexual harassment policy which provides: The Equal Employment Opportunity Commission's amended "Guidelines on Discrimination Because of Sex" include a section prohibiting sexual harassment as "unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of sexual nature when: submission to such conduct is either an explicit or implicit term or condition of employment, or submission to or rejection of such conduct is used as a basis for an employment decision affecting the person rejecting or submitting the conduct, or such conduct has the purpose or effect of unreasonably interfering with an affected person's work performance or creating an intimidating, hostile, or offensive work environment. Sexual harassment is unacceptable behavior by any USBI employee or outside vendor. Any form of harassment, like any conduct contrary to common decency or morality, cannot and will not be tolerated. The company will take whatever corrective action necessary to prevent or deal with acts of sexual harassment in the work place. (Respondent's exhibit no. 61) The policy provides names and phone numbers for persons to report sexual harassment and states that reports at that point will be confidential. Employees are informed of the policy through annual letters from the company head, through posters on the facility walls and through mandatory workshops for managers and their staff. USBI responded appropriately to Ms. Cline's complaints. Its response as to the photographs was effective; the sexually-themed banter, however, continued. The banter did not constitute sexual harassment of Ms. Cline, nor did it create a sexually hostile work environment. No one at USBI ever made a sexual advance towards Ms. Cline; no one suggested or requested sex from her or asked her for a date. No one touched her inappropriately. The sexual banter was never directed to or about her. The banter overheard by Ms. Cline, and the use of the "f word," were occasional, not daily or even weekly. The banter was not directed solely to, or about women; it was engaged in, and was overheard, by men and women, alike. The work quarters were close; the unit which included Ms. Cline was in a small "modular" building with work stations divided by movable partitions. By necessity, workers moved around the office to use various equipment. Coworkers of Ms. Cline did not find the environment sexually hostile, offensive or intimidating. No one else of the primarily female group complained about a sexually hostile or intimidating work environment. According to both a friend and her psychiatrist, Ms. Cline was more sensitive than most to profanity and off-color language. Without question, Ms. Cline suffered from stress at work. The stress was manifest in the myriad physical symptoms which caused absenteeism and loss of performance. USBI appropriately offered to Ms. Cline accommodations which would have allowed her to continue working at the same job level and salary but outside of the environment she found intolerable. She rejected the offers and voluntarily resigned. The resignation was not urged, directly or indirectly, by the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Ms. Cline's complaint and petitions for relief in this cause. DONE and ENTERED this 25th day of March, 1996, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5634 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact. Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in paragraph 60. Rejected as unnecessary. Adopted by implication in paragraph 60. Adopted in substance in paragraph 48. Rejected as unnecessary. Adopted in paragraph 50. Adopted in paragraph 52. Adopted in paragraph 53. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Subparagraphs are addressed as follows: Adopted in substance: a (but not the date), b, c, h, i, m, n. Rejected as unnecessary, immaterial or misleading: d, e, f, g, j, k, l. Rejected, as to the "escalation," as unsupported by the greater weight of the evidence; adopted generally in summary in paragraph 17; but some of the specifics alleged were not established (for example, the "sucking" statement). Rejected as a mischaracterization of the incident, although use of the word, "fuck," was proven. 19.-22. Rejected as not credible. 23.-24. Adopted in substance in paragraph 17. 25.-28. Rejected as contrary to the weight of evidence. Adopted in part in paragraphs 39-41, but it was not proven that the stress was the result of a "hostile work environment," within the scope of gender-based discrimination. Rejected as unnecessary. 31.-32. Rejected as contrary to the weight of evidence. 33.-34. Accepted that she complained, but the dates and frequency were not established with competent evidence 35. Conclusion that the steps were "inadequate" is rejected as contrary to the weight of the evidence. 36.-41. Rejected as unnecessary, immaterial, or misleading. 42. Rejected (as to characterization of "retaliation") as contrary to the weight of evidence and the law. 43.-46. Rejected as unnecessary, given the recommended disposition. Respondent's Proposed Findings of Fact. 1.-4. Adopted in substance in paragraphs 48 and 49. 5.-6. Adopted in substance in paragraph 54. 7. Adopted in paragraph 1. 8. Adopted in paragraph 55. 9. Adopted in paragraph 3. 10. Adopted in paragraph 4. 11. Adopted in paragraph 5. 12.-13. Adopted in paragraph 4. 14.-15. Rejected as unnecessary. Adopted in substance in paragraph 34. Adopted in paragraph 6. 18.-21. Adopted in paragraphs 7 and 8. 22. Adopted in paragraph 9. 23. Adopted in substance in paragraph 59. 24. Adopted in paragraph 61. 25. Adopted in paragraph 10. 26. Adopted in paragraph 12. 27.-28. Adopted in substance in paragraphs 11 and 12. 29. Adopted in paragraph 13. 30. Adopted in paragraph 27. 31. Rejected as unnecessary. 32.-35. Adopted in paragraphs 14 and 15. 36.-38. Adopted in paragraph 19. 39.-43. Adopted in paragraphs 20 and 21. 44. Adopted in paragraph 22. 45. Rejected as unnecessary. 46. Adopted in paragraph 23. 47.-48. Rejected as unnecessary. 49. Adopted in substance in paragraph 25. 50. Adopted in paragraph 24. 51. Adopted in paragraph 26. 52. Adopted in paragraph 28. 53. Adopted in paragraph 29. 54. Adopted in paragraph 31. 55. Adopted in paragraph 30. 56. Rejected as unnecessary. 57.-62. Adopted in substance in paragraphs 43 through 46. 63.-64. Adopted in part in paragraph 47; otherwise rejected as unnecessary. 65.-72. Adopted in substance in paragraphs 32 through 38. COPIES FURNISHED: Patricia E. Lowrey, Esquire Mark B. Roberts, Esquire STEEL HECTOR and DAVIS 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401 Wayne L. Allen, Esquire 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether or not on or about October 15, 1976, the Respondent, its agent, or employee did knowingly promote, permit a lewd, obscene or indecent show contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Mary Ann Palek, did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Caroline Ann Ruegg did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Theresa Ann Caldwell did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Veleta Rose Shorter did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Nancy Lee Henry did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Joyce Gail Waechter did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011, F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Arbrenda D. Thomas did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011, F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Mary Hildegrade Szczebak did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee, or servant Gladys Amol did participate/perform in lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Ann M. Hall did participate/perform in lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee, or servant Emma Lou Weagraff did participate/perform in lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee, or servant Peggy Janet Scroggins did participate/perform in lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S.
Findings Of Fact At all times material to the proceedings Paul Vogelbacher was the holder of license no. 58-695, held with the State of Florida, Division of Beverage. This license was held to do business as the Gaslite, located at 2201 S. Orange Blossom Trail, Orlando, Florida. On one occasion in late September, 1976, dancers within the licensed premises were observed sitting astride male customers' laps with the customers' legs together and the dancers' legs spread apart. While seated in this posture the dancers were making bumping and grinding motions on the customers' laps, while the customers fondled the breasts of the dancers. One customer handed a beer bottle to one of the dancers who rubbed the bottle on her pubic area. The licensee, Paul Vogelbacher, entered the premises around 10:30 P.M. on that evening, and was present while the aforementioned activity by the dancers was taking place. Vogelbacher also looked around the area where the dancing was taking place. Vogelbacher then left the premises, after staying 15 or 20 minutes. The customers, dancers, and Vogelbacher had been observed in this incident by Deputy John C. Swanson, Orange County Sheriff's Office. Deputy Swanson and Deputy Wood of the same law enforcement agency, returned to the licensed premises on Saturday afternoon, about a week after the first occasion. On this visit, dancers were observed seated on the male patrons' laps as before, and these girls were allowing the customers to fondle their breasts. The licensee Paul Vogelbacher was not in attendance at that time. Deputy Swanson, other members of the Orange County Sheriff's Office and members of the State of Florida, Division of Beverage returned to the licensed premises on October 15, 1976. Officer Swanson entered the licensed premises between 9:15 and 9:30 P.M. and was in the premises from that time until 11:00 P.M., at which time a raid of the licensed premises was made and a number of arrests affected. Dancers in the licensed premises to wit: Mary Ann Palek, Caroline Ann Ruegg, Theresa Ann Caldwell, Veleta Rose Shorter, Nancy Lee Henry, Joyce Gail Waechter, Arbrenda D. Thomas, Mary Hildegrade Szczebak, Gladys Amol, Ann M. Hall, Emma Lou Weagraff, and Peggy Janet Schoggins were seen seated on individual male customer's laps rubbing the area of their crotch against the crotch of the customers. In addition, Theresa Ann Caldwell, while dancing on the stage allowed one male patron to pull down her g-string and put his nose up her rectum. The dancer Nancy Lee Henry spoke to officers Swanson and Wood and told them, "the dancing is against the law, but a gentleman is at the door to lookout, we're not supposed to sit astride the customers". One patron was also seen fondling the breasts of the dancer, Arbrenda D. Thomas. Mary Hildegrade Szczebak allowed three or four customers to touch and fondle her breasts. Finally, Gladys Amol allowed three or four customers to fondle her breasts. All the activities immediately mentioned occurred on October 15, 1976, the night of the raid and arrests. All these activities were occurring while a bartender was on duty in the licensed premises; however, Paul Vogelbacher was not in attendance. Vogelbacher had never instructed any of the girls to dance in the manner shown on October 15, 1976, and two and possibly more of the dancers indicated that Vogelbacher had told them on at least one occasion not to dance in the aforementioned manner. Prior to the time of the raid on October 15, 1976, Vogelbacher would come to the licensed premises for 1/2 hour to 2-1/2 hours, but not everyday. Since that time Vogelbacher has come to the bar at least once a work day and stayed 30 minutes up to an entire day, which is a 14 hour day in the licensed premises. Two weeks prior to the hearing before the Division of Administrative Hearings, Swanson returned to the bar and observed the same form of activity by the dancers in the licensed premises, meaning bumps and grinds while seated on the laps of the male patrons.
Recommendation Based upon the violations as established in this cause, it is recommended that the license no. 58-694, held by Paul Vogelbacher with the State of Florida, Division of Beverage, be suspended for a period of 30 days. DONE and ENTERED this 8th day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles T. Collett, Esquire Russell Crawford, Esquire Department of Business Regulation 127 North Magnolia Avenue 725 Bronough Street Orlando, Florida 32801 Tallahassee, Florida 32304 J. Cheney Mason, Esquire 127 North Magnolia Avenue Orlando, Florida 32801
The Issue At issue is whether Jeffrey Alshin is subject to discipline for violation of Section 490.009(2)(k), Florida Statutes (1983), by committing an act upon a client which would constitute sexual battery or sexual misconduct as defined in Section 490.0111, Florida Statutes (1983). Sexual misconduct in the practice of mental health counseling is prohibited by Section 490.0111, Florida Statutes (1983); that statute states that sexual misconduct shall be defined by rule. According to the Administrative Complaint, Rule 21U-15.04, Florida Administrative Code, defines sexual misconduct. The Administrative Complaint also alleges a violation of Section 490.009(2)(s), Florida Statutes (1983), for failing to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance. The factual basis for these various grounds for discipline is alleged to have been engaging in sexual activity with a client during the period March, 1984, through July 1984, when a counselor-client relationship existed with the client.
Findings Of Fact The Respondent, Jeffrey R. Alshin, is a mental health counselor who has been licensed by the State of Florida during the times material to the allegations made in the Administrative Complaint. The client with whom Alshin is accused of sexual involvement, J.S., was referred to him by a Dr. Lemberg, who saw J.S. on March 1, 1984 (Tr. 24). J.S. telephoned Alshin's office and made an appointment to see him on Monday, March 5, 1984 (Tr. 24). On March 5, 1984, J.S. went to Alshin's office for a therapy session and met Alshin for the first time. She had another session with him on March 9, 1984 (Tr. 24-25). From March 5, 1984 a counselor-client relationship existed between Alshin and J.S. (Tr. 82). On the morning of Sunday, March 11, 1986, Alshin invited J.S. to his home for a barbecue (Tr. 26). After the barbecue, Alshin and J.S. went to Respondent's apartment and that evening they engaged in sexual intercourse (Tr. 27-28). Alshin engaged in sexual intercourse with his client on five other occasions between March and June, 1984 (Tr. 29). During the period in which Alshin and J.S. were sexually involved, Alshin was counseling J.S. (Tr. 28-29). Alshin was never married to J.S. Expert testimony submitted at the hearing establishes that for a mental health counselor to have a sexual relationship with a client is conduct which falls below the minimum standards of performance in professional activities for a mental health counselor when measured against prevailing peer performance (Tr. 80).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Secretary of the Department of Professional Regulation finding the Respondent guilty of a violation of Sections 490.009(2)(q) and (s), Florida Statutes (1983), and that his license as a mental health counselor be REVOKED. DONE AND ORDERED this 10th day of November, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY 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 10th day of November, 1986.
The Issue Whether or not on or about June 21, 1976, the Respondent, Evelyns, Inc., did permit its agents, servants, or employees, to wit: Kevin Kierstead and Alan Rogers to expose their sexual organs on its licensed premise which is open to the public, in a vulgar and indecent manner in violation of s. 800.03, F.S., thereby violating s. 561.29, F.S. Whether or not on or about June 21, l976,the Respondent, Evelyns, Inc., did permit its agents, servants, or employees, to wit: Kevin Kiersiead and Alan Rogers to engage in lewd and lascivious conduct, to wit: displaying sexual organs in a lewd and lascivious manner in violation of s. 795.02, F.S., thereby violating s. 561.29, F.S.
Findings Of Fact The Respondent, Evelyns, Inc., t/a The Other Door, is the holder of license no. 58-375, series 4-COP, held with the State of Florida, Division of Beverage from October 1, 1975 through September 30, 1977. On the night of June 21, 1976, Diane Salyer and Sharon Viaphiades entered the licensed premises known as The Other Door, which was owned by the Respondent, Evelyns, Inc. After entering the licensed premises they sat down at a round table which was approximately four feet high and two feet in diameter. In the licensed premises were approximately 100 to 125 female patrons, ten or twelve male dancers, and a number of employees of the Respondent. Among the employees were several door watchers, waitresses, and a master of ceremonies. The male dancers were referred to as "Go-Go" dancers and these dancers were dancing on a stage area and on various tables about the inside of the licensed premises. One of the dancers was a Kevin Kierstead and at some point during the evening Kevin Kierstead stood up on the table at which Salyer and Viaphiades were seated and commenced to dance for these women. This dance took approximately three to five minutes and in the course of that dance Kierstead exposed his sexual organs to Salyer and Viaphiades, twice to Salyer and once to Viaphiades. Each of these exposures took approximately two to three seconds. The exposure was done by squatting in front of the two women on each occasion and pulling back the jock strap costume that the dancer was wearing. It was not established that any of the employees within the licensed premises saw this act of exposure. By prearranged signal, the aforementioned witnesses, Salyer and Viaphiades were to contact law enforcement officers who were waiting outside. After Kierstead had exposed himself, contact was made with the law enforcement officials. One of the officials who came into the premises was, David A. Hughes, an officer with the Orlando Police Department. Officer Hughes, upon entering spoke with Charles Veigle, one of the owners of the premises. While speaking with Veigle a dancer whose name is Alan Rogers was dancing on a table in front of the officer and to his left. On three occasions during the course of that dance the dancer exposed his sexual organs to the women who were seated at that table. These exposures only took a matter of seconds. Rogers was 25 or 30 feet away from officer Hughes and there were people seated between the officer and the activity. Again, it is not clear whether Charles Veigle or any other employee saw the exposure which took place. The Respondent, through its ownership had undertaken to insure that no such activity would occur, by requiring each of the dancers to sign a piece of paper saying that they had been instructed as to the rules for dancing. Essentially those rules, which were in writing and were signed, instructed the dancers not to touch the patrons, not to dance in the patrons face and not to allow the patrons to touch the dancer. Additionally, there was some testimony that announcements were made over the public address system at intervals reminding the dancers and patrons of the rules; however, it was unclear whether these announcements were made on the night of June 21, 1976, at the time that the two women witnesses, Salyer and Viaphiades and officer Hughes were in the premises. Kierstead read the paper and signed it on the night of June 21, 1976. Rogers, who had danced at the licensed premises on several other occasions could not remember reading and signing the paper on June 21, 1976, but did recall being told of the rules the first time he danced there. The dancers participating on June 21, 1976, were allowed to take tips from the patrons and were dancing for a $50.00 first prize to be paid by the owner of the licensed premises. In addition, each dancer was entitled to three complimentary drinks at the expense of the owners of the licensed premises. Part of the function of the door watchers was to walk around the room and insure no violations of the house rules on the subject of dancers were violated. Finally, in the past, on six occasions, participates other than Kierstead and Rogers had been removed from the licensed premises during the course of the male "Go-Go" dancers, for violation of the house rules as to conduct with the patrons or exposure of their sexual organs. This removal had been accomplished by employees of the licensee.
Recommendation It is recommended that the charges filed by the Petitioner against the license of Evelyns, Inc., t/a The Other Door, under license no. 58-375, series 4-COP as set forth above, be dismissed. DONE and ENTERED this 11th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Division of Beverage 725 Bronough Street The Johns Building Tallahassee, Florida 32304 Harry N. Jacobs, Esquire Jacobs and Goodman Suite 126, 303 E. Altamonte Drive Altamonte Springs, Florida 32701
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged sexual harassment of a co-worker. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner has employed Respondent as a maintenance worker at Yulee Primary School in Yulee, Florida (the "school") for approximately 18 years. Petitioner has employed Ms. Joyce Sullivan as a food service worker for approximately three years. Respondent and Ms. Sullivan are co-workers. Respondent has no supervisory authority over Ms. Sullivan, has no authority to discipline Ms. Sullivan, and has no authority to affect the conditions of employment for Ms. Sullivan. The material facts in this case transpired over approximately ten minutes during work hours on April 6, 2000. Respondent approached Ms. Sullivan in the back kitchen of the school cafeteria shortly after breakfast and asked to speak to her privately. Ms. Sullivan agreed, and the two moved to the adjacent serving area near the checkout counter in the cafeteria. Respondent asked Ms. Sullivan to pose for pictures that would be nude, semi-nude, or partially clothed and that Respondent would enter into a contest on the internet. Respondent explained that the pictures would not identify Ms. Sullivan because the pictures would be taken from the neck down and that Ms. Sullivan could wear a bikini, a thong, or a bra. Ms. Sullivan asked Respondent what he was talking about. Respondent assured Ms. Sullivan that she would not be identified because the pictures would not identify Ms. Sullivan's face. Ms. Sullivan told Respondent that he was crazy. The entire conversation lasted approximately three minutes. Ms. Sullivan left Respondent and walked to the cash register to "ring up" the school principal who purchased some food. Ms. Sullivan went to an office in the back of the cafeteria with Ms. Sullivan's assistant manager. Respondent went to the back room and told Ms. Sullivan that he would show her some pictures on his computer. Respondent exited the room through the back door of the room to retrieve a laptop computer. Ms. Sullivan and her assistant manager went outside the back room and discussed the situation. Ms. Sullivan was embarrassed. After four or five minutes, Respondent returned to the back room and placed the laptop on the desk in front of Ms. Sullivan. The assistant manager was in the same room at another desk engaged in a telephone conversation. It took about 1.5 minutes for Respondent to turn on the laptop and display some pictures. The pictures included pictures of partially clad women and topless women. The situation terminated after 1.5 minutes when the assistant manager ended her telephone conversation, a child asked Ms. Sullivan to "ring up" some papers, and Ms. Sullivan's manager approached the room. Respondent changed the computer screen to a picture of his daughter and began talking to Ms. Sullivan's manager. Respondent left the school with the computer. Ms. Sullivan reported the incident to her manager, but Ms. Sullivan did not file a complaint for sexual harassment or state to her manager that she had been sexually harassed. Ms. Sullivan's manager relayed the information to Respondent's supervisor who discussed the matter with Respondent. Respondent admitted to the facts and expressed regret. Respondent's manager relayed the information to the Superintendent. The Superintendent investigated the matter and determined that Respondent had engaged in sexual harassment. The Superintendent based his determination on the definition of sexual harassment in the Board's Official Rule 3.54I.C. Rule 3.54I.C., in relevant part, states that sexual harassment consists of: . . . unwelcomed sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: . . . such conduct substantially interferes with an employee's work performance . . . or creates an intimidating, hostile, or offensive work . . . environment. Respondent's request for Ms. Sullivan to pose for sexually revealing pictures was either an unwelcomed sexual advance, request for sexual favor, or other inappropriate oral or written conduct of a sexual nature within the meaning of Rule 3.54I.C. Respondent's conduct substantially interfered with Ms. Sullivan's work performance or created an offensive work environment. The Superintendent testified during cross-examination that he would not have determined that Respondent engaged in sexual harassment if Ms. Sullivan had not said no to Respondent's request. A preponderance of the evidence fails to show that Ms. Sullivan expressly said "no" when asked pose or view pictures. However, a preponderance of the evidence shows that Ms. Sullivan was embarrassed and that the entire episode was unwelcomed and offensive within the meaning of Rule 3.54I.C. Respondent has no previous discipline history. Article VII of the collective bargaining agreement between the Board and its employees prescribes progressive discipline procedures for this case. Except in unusual circumstances, employment can be terminated only after an oral warning for a first offense, a reprimand for a second offense, a written warning for a third offense, and suspension for a fourth offense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of sexual harassment and suspending Respondent from employment for the time of the current suspension. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Florida. DANIEL MANRY 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 20th day of November 2000. COPIES FURNISHED: Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. John L. Ruiz, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32304 Brent P. Abner, Esquire Suite F 4741 Atlantic Boulevard Jacksonville, Florida 32207 Brian T. Hayes, Esquire 245 East Washington Street Monticello, Florida 32344 Martha F. Dekle, Esquire 806 G Street Post Office Box 1644 Jacksonville, Florida 32207
The Issue Whether or not, on or about January 25, 1977, in the licensed premises located at 1600 North Dale Mabry Highway, Tampa, Hillsborough County, Florida, the licensed premises of the Respondent, the Respondent's employee, agent, servant, or entertainer, to wit: Linda Sue Richardson and/or Gayle Jeanette Landrum, allegedly employed at the licensed premises or employed on a contractual basis by the Respondent to entertain, perform, or work on the licensed premises known as, Tigers Den A Go Go, did commit or engage in a lewd and lascivious performance by a live person by committing obscene and indecent acts in violation of 847.011, F.S. and thereby subject the licensee to the penalty provisions of s. 561.29, F.S.
Findings Of Fact At present and at all times pertinent to this cause, to include January 25, 1977, the Respondent, Mardi Gras De Tampa, Inc., was the holder of license no. 39-0246, series 4-COP, held with the State of Florida, Division of Beverage. This license was held to trade as Tigers Den A Go Go in a premises located at 1600 North Dale Mabry Highway, Tampa, Hillsborough County, Florida. On January 25, 1977, officers of the Hillsborough County Sheriff's Office entered the licensed premises. The officers were Detectives Ridgeway and Coakley. While in the licensed premises the officers observed an entertainer Linda Sue Richardson dancing. In the course of the dancing Richardson inserted a plastic straw into the g-string costume which she was wearing, and simulated masturbation. The officers also observed Richardson, in the course of the dance, take a napkin and rub it on her vagina, and then roll the napkin up and place it in her mouth and simulate oral sexual activity. At the time the officers were in the licensed premises and on the same date, they observed the dancing of a second female entertainer, one Gayle Jeanette Landrum. They saw Landrum place her hand in her g-string costume and simulate masturbation. Landrum also fondled her breasts in a provocative manner. The exact location within the licensed premises where the above described dancing took place is not specifically known, beyond the fact that one dancer was dancing on a large stage behind the bar and the other dancer was dancing on a smaller stage which was placed in the area where patrons would be seated. The dancing took place at a time that customers were in the licensed premises. The two women were arrested and charged with lewd and lascivious conduct and both were convicted of a violation of s. 847.011, F.S. On the date of the arrest of the two dancers, Carol Alcorn was in charge of the licensed premises in the capacity of manager. Alcorn was also serving as bartender on that occasion. The two female entertainers were employed on January 25, 1977 for compensation by the Respondent, Mardi Gras De Tampa, Inc. The two women were operating under the specific instructions of the Respondent on the subject of their conduct while performing. These instructions were generally to not commit acts which would be considered lewd and lascivious within the meaning of the "Florida Law". In addition the dancers were not to touch themselves or fondle themselves or let customers touch them. The women had been told these basic rules in individual conferences. Another policy which the management had, was to call the performers attention to any improper conduct, and dismiss performer if the performer failed to abide by management rules on the subject of proper conduct. In fact, the Respondent's management employees had corrected dancers before. On the occasion when the officers observed the conduct of Richardson and Landrum, it is unclear what period of time was encompassed to achieve the acts described. In the normal course of events the women would have been dancing for the duration of three records, which would be approximately nine minutes. They would have been dancing as a part of a group of six to eight dancers. The bartender would have been able to see any dancer performing on the stage behind the bar or performing on the stage in the area where the patrons were seated. The view of the two stages from the location the bartender would have behind the bar would have been unobstructed. Whether or not the bartender, Carol Alcorn, actually saw the subject dancing of Richardson and Landrum can not be determined from the facts offered in the hearing. What was shown was that the bartender went to the restroom, which was away from the bar itself, and was confronted by the two officers when leaving the restroom area. This confrontation was for the purposes of complaining about the activities the officers had observed on the apart of Richardson and Landrum. The acts which took place in the course of the dancing, by Linda Sue Richardson and Gayle Jeanette Landrum, constitute lewd and lascivious conduct within the meaning of s. 847.011, F.S. From the facts presented in the course of the hearing, it has not been shown that the Respondent, Mardi Gras De Tampa, Inc., has violated s. 561.29, F.S., as a result of the acts of their employees Linda Sue Richardson and Gayle Jeanette Landrum. The facts do not show that the Respondent is responsible for those acts of the employees either through its own negligence, intentional wrongdoing, or lack of diligence.
Recommendation It is recommended that the charge filed by the Petitioner against the license of Mardi Gras De Tampa, Inc., t/a Tigers Den a Go Go, under license no. 39-0246, series 4-COP, as set forth above, be dismissed. DONE AND ENTERED this 28th day of July, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Tom Whitaker, Esquire Division of Beverage 403 North Morgan Street 725 South Bronough Street Tampa, Florida 33602 Tallahassee, Florida 32304
The Issue Whether or not on or about the 9th day of January, 1976, on the Respondent's licensed premises, located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant, or employee, one Yvonne Claudette Lanier, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one Thomas Royal Ford, while dancing in a topless manner while rubbing her buttocks on his groin area and placing her breasts in his mouth, in violation of Section 798.02, F.S., thereby violating Section 651.29, F.S. Whether or not on or about the 9th day of January, 1976, on the Respondent's licensed premises located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant, or employee, one Olivia Diana Austin, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, by dancing in a topless manner while rubbing her buttocks on his groin area and allowing him to rub his hands all over her body and fondle her breasts, in violation of Section 798.02, F.S., thereby violating Section 561.29, F.S. Whether or not on or about the 9th day of January, 1976, on the Respondent's licensed premises located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant or employee, one Sharon Brannon Kwasniewski, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer by dancing in a topless manner while rubbing her legs on the inside of his legs, in violation of Section 798.02, F.S., thereby violating Section 561.29, F.S. There was within this Notice to Show Cause a Count No. 5, which was not considered at this hearing due to insufficient notice being given to the Respondent. Further consideration of this count may be made at a future date. Whether or not on or about the 25th day of March, 1976, on the Respondent's licensed premises located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant or employee, one Doris Resnell Edwards, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one Oral Rudolph Richardson, by dancing in a topless manner while allowing him to fondle her breasts and buttocks, in violation of Section 798.02, F.S. thereby violating Section 561.29, F.S. Whether or not on or about the 25th day of March, 1976, on the Respondent's licensed premises located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant or employee, one Doris Resnell Edwards, did unlawfully engage in open and gross lewd and lascivious behavior while dancing for a male customer, one Douglas Steven Winterbourne, by dancing in a topless manner while rubbing her legs on his groin area and allowing him to fondle her breasts, thighs, and vaginal area, in violation of Section 798.02, F.S. thereby violating Section 561.29, F.S. Whether or not on or about the 25th day of March, 1976, on the Respondent's licensed premises, located at 1080 Cassat Avenue, Jacksonville, Florida the Respondent, his agent, servant or employee, one Rexie Maria Regester, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one Douglas Steven Winterbourne, by dancing in a topless manner while rubbing her vaginal area on his legs and allowing him to kiss and fondle her breasts and rub her vaginal area, in violation of Section 798.02, F.S., thereby violating Section 561.29, F.S. Whether or not on or about the 25th day of March, 1976, on the Respondent's licensed premises, located at 1080 Cassat Avenue, Jacksonville, Florida the Respondent, his agent, servant or employee, one Bridgette Dian Strickland, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one B. W. Hodges of the Jacksonville Sheriff's Office, by dancing in a topless manner while rubbing her legs on the inside of his legs and groin area and sticking her breasts in his face, in violation of Section 798.02, F.S. thereby violating Section 561.29, F.S. Count No. 10 of the amended Notice to Show Cause was dismissed at the commencement of the hearing.
Findings Of Fact At all times material to the allegations found in the amended Notice to Show Cause the Respondent, G and B of Jacksonville, Inc., trading as Out of Sight, located at 1080 Cassat Avenue, Jacksonville, Florida, was licensed under License No. 26-449, Series 4COP held with the State of Florida, Division of Beverage. On January 9, 1976, at around 3:00 p.m., Yvonne Claudette Lanier was dancing in the subject licensed premises. She was clothed in a two piece bikini type outfit in which the top part of the costume was open in the front. The dancing was specifically directed to the attention of a male customer, Thomas Royal Ford, who was seated against one of the walls. During the course of this particular dance, which took place over the duration of a single song, Ms. Lanier rubbed her buttocks on the area of Mr. Ford's groin and, in the course of the dance, caused her breasts to be placed in the mouth of this patron while leaning over him. Those persons in the bar who appeared to be employees of the bar took no action to stop this incident. On the same date, to wit, January 9, 1976, at around 3:00 p.m., Olivia Diana Austin was dancing in the subject licensed premises. She was clothed in bikini styled bottoms with her breasts exposed. While dancing for a male customer, she rubbed her buttocks on his groin area and allowed a male customer to fondle her with his hands around her hips and waist, thighs, navel and breasts. When Ms. Austin was rubbing her buttocks on the groin area of the male customer, she was doing so by gyrating her buttocks in a circular motion. Again, those persons who appeared to be employees of the licensed premises took no action to stop Ms. Austin from the course of conduct with the unidentified male customer and Ms. Austin took no steps to prevent the male customer from touching her. On the same day, January 9, 1976, at around 3:00 p.m. in the subject licensed premises, Sharon Brannon Kwasniewski was dancing. She was dancing in what was described as a topless state and the bottom part of her costume was a go-go outfit. While dancing, she directed her attention to a white male customer and stood between his legs while he was seated and caused her crotch area to be rubbed against his crotch area during the course of the dance. The patron did not attempt to stop her from this course of conduct and a female bartender in the licensed premises made no attempt to stop this course of conduct. During the course of this dancing, Ms. Kwasniewski also rubbed her legs in a vertical motion in the area of the patron's crotch. The number of customers in the bar on January 9, 1976 at the time the aforementioned conduct took place was moderate. On March 25, 1976 in the above described licensed premises, one Doris Resnell Edwards was dancing. She was dressed in bikini type pants and some form of top. As a part of her dancing, she addressed her attention to a customer, one Oral Rudolph Richardson. While dancing about Mr. Richardson, Ms. Edwards allowed Mr. Richardson to fondle her breasts by rubbing her breasts in his face and allowing him to place her breasts in his mouth. In addition, she allowed Mr. Richardson to fondle her buttocks with his hands, and she made no effort to stop his attention. The same Doris Resnell Edwards danced for a customer names Douglas Steven Winterbourne on March 25, 1976. This dancing took place after a conversation between Winterbourne and Edwards in which she asked Winterbourne if she could dance for him and he agreed, if he did not have to pay for the dance. In the course of the dance, she was in a topless state and while dancing, she stood between his legs and rubbed her legs against his legs and while the dance was proceeding, allowed him to fondle her thighs. One of the other dancers in the licensed premises on March 25, 1976 was Rexie Maria Regester. She danced one tune for Winterbourne after a conversation in which he agreed to pay her to do the dance. Winterbourne said he paid because this was the custom in the licensed premises to pay the dancers. The dance was while Regester was in a topless state and, in the course of the dance, she rubbed her vaginal area on Winterbourne's legs and allowed him to fondle her breasts while rubbing her breasts in his face. Regester was wearing clothing on the bottom half of her body. On March 25, 1976, an officer of the Jacksonville Sheriff's office was in the licensed premises. While in the bar and seated at one of the tables, Officer Hodges was approached by one of the dancers, Bridgette Diane Strickland. She asked him if he would like her to dance for him and indicated that she would charge him $3.00 to dance clothed and $5.00 to allow him to touch her body all over. He indicated that he would pay her $5.00 and paid her that amount of money. She danced for him and rubbed the inside of his legs with her legs and rubbed his groin area with her leg. She also placed her breasts in his face. Officer Hodges did not encourage the conduct of this dancer. During the course of the dances which have been indicated to have occurred on March 25, 1976, there was a female bartender in the licensed premises, and this employee made no attempt to stop any of the aforementioned course of conduct. No other persons attempted to stop the course of conduct described.
Recommendation It is recommended that the license of the Respondent, G and B of Jacksonville, Inc., trading as Out of Sight, license no. 76-449 be suspended for a period of 30 days. DONE AND ORDERED this 18th day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Harry Katz, Jr., Esquire 337 E. Forsyth Street Jacksonville, Florida 32202
