Findings Of Fact The Hearing Officer finds the following facts: Respondent is the holder of Beverage License No. 26-957,2-COP and the licensed premises encompass the bar known as "The Harem". Sergeant Thomas R. Genest, a Jacksonville Police Officer, went in The Harem on November 1, 1974. Upon entering he saw Georgiann Smith and Annie Pearl Williams, both of whom worked as topless dancers in The Harem and were at that time dressed as topless dancers. At the time Sergeant Genest entered the bar Smith was dancing topless at the bar between the legs of a male patron simulating intercourse with the patron. Williams was similarly dancing topless between the legs of a male patron, simulating intercourse and allowing the patron to place his hands on her buttocks and thighs. Sergeant Genest had no independent recollection of Virginia Lou Roberts or any acts in which she might have been engaged on November 1, 1974, in The Harem. On March 6, 1975, Detective H. R. Hall of the Jacksonville Sheriff's Office Vice Squad, was working The Harem undercover. While in The Harem he saw Maria Jenkins, Essie Mae Parks and Gaynell Moore, who were dressed as topless dancers and working as topless dancers in the bar. Jenkins was dancing topless between the legs of a male patron and rubbing her body against him as she danced. Parks was dancing topless between the legs of a male patron, who had his hands on her buttocks as she rubbed her vagina against his mid-section. Moore was dancing topless between the legs of a male patron who had his hands on her buttocks as she rubbed her vagina against his mid-section. At all times pertinent to this proceeding Georgiann Smith, Annie Pearl Williams, Maria Jenkins, Essie May Parks and Gaynell Moore were agents, servants or employees of the licensee.
The Issue Mr. Landrey has requested an exemption from disqualification from employment relating to children and other vulnerable persons. The issue for disposition is whether he is entitled to that exemption.
Findings Of Fact Jeffrey Landrey is a 37-year-old long-time resident of Orlando, Florida. He has a high school diploma and a stable employment history, primarily as a file clerk of a law firm and as a waiter or cook at various military or private clubs. On June 26, 1995, Mr. Landrey was arrested for indecent conduct. In his words, he had gone to a park that was well known for sexual escapades, looking for affection and some release. In the men’s rest room, Mr. Landrey openly masturbated and continued masturbating when an undercover law enforcement officer walked in and watched him. The officer left; then returned and induced Mr. Landrey to accompany him out of the park, and arrested him. At his attorney’s urging, Mr. Landrey pled no contest in return for completing an AIDS awareness course, avoiding the park for six (6) months and paying a $377.50 fine. He has now satisfied that sentence. Mr. Landrey asserts that as of March 1996, with the help of a hypnotist, he has turned his life around: he has quit alcohol and drugs, has become a vegetarian and has become “very spiritual." He has sold his late-model car to buy a “clunker” vehicle and to finance his college education. He wants to pursue a degree in social work. Mr. Landrey obtained a job at the Primrose Center, a non-residential workshop for mentally and physically handicapped persons, to see if he really could be a social worker. He loved the work and says the clients offered “unconditional love." After two weeks at Primrose Center, Mr. Landrey was terminated when the legally-required screening process revealed his 1995 arrest and disposition. Although he claims that he left a good-paying job to work at Primrose Center and now feels it unfair that he was not screened before he took the job, Mr. Landrey concedes that he did not tell Primrose about the nature of his arrest, but rather described it in such veiled terms that the employer thought he was talking about a traffic offense and told him not to worry. Although the offense which disqualifies Mr. Landrey is minor, the finding that he should now be exempt, that is, that he is rehabilitated and will not present a danger, must be based solely on his own testimony. He presented some letters of personal recommendation but no evidence that the authors of the letters were aware of the indecent conduct offense. The other letters are employment recommendations and a letter from his church pastor stating only that he is a “registered and active parishioner." Mr. Landrey was not candid with his employer at Primrose. This, and the brief time since his offense and subsequent avowed rehabilitation, preclude the findings necessary for an exemption at this time.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the request for exemption be DENIED, without prejudice to Mr. Landrey’s right to renew his request later with additional evidence of his rehabilitation. DONE AND ENTERED this 12th day of January, 1998. MARY CLARK 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 12th day of January, 1998. COPIES FURNISHED: Jeffrey Landrey 3355 Coe Avenue Orlando, Florida 32806 Carmen M. Sierra Department of Children and Family Services Suite S-1106 400 West Robinson Street Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether or not on or about the 21st day of November, 1975, on the Respondent's licensed premises, located at 5916 Phillips Highway, Jacksonville, Florida, the Respondent, its agent, servant or employee, to wit: Phyllis Jacobs Whidden, did engage in open and gross lewd and lascivious behavior with another person while dancing in a topless state for a patron; did rub her vagina and buttocks against the leg of the male patron, in violation of Section 798.02, thereby violating Section 561.29, F.S.
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 Climax, located 5916 Phillips Highway, Jacksonville, Florida, was licensed under License No. 26-780, Series 4-COP, held with the State of Florida, Division of Beverage. On November 21, 1975, one Phyllis Jacobs Whidden, was dancing as an employee of the licensee within the licensed premises. At that time and place, Whidden approached a male patron and rubbed her pubic area and buttocks on the one of the legs of that male patron.
Recommendation It is recommended that the license of the Respondent G and B of Jacksonville, Inc., trading as Climax, license no. 26-780 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
Findings Of Fact At all times pertinent to this proceeding, Respondent held Class "D" Security Officer License Number D00-26960 and Class "DI" Security Officer Instructor License Number DI89-00304. Both licenses were duly issued by Petitioner pursuant to the provisions of Chapter 493, Florida Statutes. Respondent has held his Class "D" license since 1976 and has held his Class "DI" license since 1989. Respondent has no previous record of a felony or misdemeanor offense and was, at the time of the formal hearing, working at an adult community condominium complex as a security guard. Officer Charles Wharton is a detective with the Fort Pierce Police Department who was, at the times pertinent to this proceeding, assigned to the juvenile division. T.G. is a female who was eleven years of age as of July 1993. F.S. 1/ is a female who was fourteen years of age as of July 1993. Both F.S. and T.G. were described by Officer Wharton as appearing their stated ages. Both of these girls were from what Officer Wharton referred to as "Fort Pierce's ghetto" and both were described by Officer Wharton as being "street wise". On or about July 1, 1993, Respondent paid T.G. and F.S. to have sexual relations with him at his house in Fort Pierce. The sex with F.S. included the penetration of her vagina with his penis. The sex with T.G. included her having oral contact with his penis. Officer Wharton questioned Respondent and read to him his Miranda rights. Respondent waived his Miranda rights and admitted to Officer Wharton that he had paid these two girls to have sex with him as described above. Officer Wharton referred this matter to the State Attorney's Office, which subsequently dismissed all charges against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and the conclusions of law contained herein, imposes an administrative fine in the amount of $1,000, suspends Respondent's licensure for a period of three months, and thereafter places Respondent's licensure on probation for a period of one year. DONE AND ENTERED this 10th day of November, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of November, 1994.
The Issue Whether or not on or about the 14th day of June, 1976 on the Respondent's licensed premises located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant and employee, one Sandra Louise Crenshaw, did unlawfully offer to commit or engage in prostitution with another, one Vice Detective J. S. Davis, Jacksonville Sheriff's Office, in violation of Section 796.07(3)(a), F.S. thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to the allegations found in the 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 4-COP held with the State of Florida, Division of Beverage. On June 14, 1976, Officer J. S. Davis of the Jacksonville Sheriff's Office, Vice Squad, entered the licensed premises. He took a seat at one of the tables in the premises and observed one Sandra Louise Crenshaw in the process of dancing. The Officer ordered a drink and Crenshaw came to his table. Crenshaw then came to the table where the Officer was seated and asked Davis if he wanted her to dance for him. She explained that the dances were in three categories. The first dance was essentially the act of dancing, for which she would charge $1.00. The second arrangement, according to Crenshaw, would cost $10.00 and for that $10.00, she would give Davis a "hand job". The third arrangement would cost $25.00, according to Crenshaw, for which $25.00 Crenshaw said that she and Davis would have sex. Davis then asked if that meant to do the act in the bar in the licensed premises. He also asked her if there was a bed. Crenshaw indicated that they would move to the back table in the licensed premises and he would then be required to pull down his pants and she would "sit on it". Davis paid her $30.00 and she gave him $5.00 in change. They moved to the back table at which time Crenshaw unzipped Davis's trousers and he placed her under arrest. Mrs. Crenshaw was employed as a dancer at the licensed premises.
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 to run concurrently with the sentence in Division of Administrative Hearings' Case no. 76-1987. 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
The Issue Did Respondent, Jennifer Abadie, R.R.T., violate sections 468.365(1)(q), 468.365(1)(x), 456.072(1)(v), or 456.063(1), Florida Statutes (2018),1/ by committing sexual misconduct?
Findings Of Fact Section 20.43 and chapters 456 and 468, Florida Statutes, charge the Board with regulating the practice of respiratory care in Florida. Ms. Abadie is a licensed registered respiratory therapist in Florida. Ms. Abadie worked for Comprehensive Healthcare of Clearwater (Comprehensive) from October 24, 2017, through February 4, 2018, at its Pinellas County, Florida, location. Comprehensive is a residential rehabilitation and nursing facility. Ms. Abadies’s 89-year-old father was a patient at Comprehensive from before she started working there until his death. He suffered from dementia. Ms. Abadie visited her father frequently, before and after her shifts and when she was not working. G.B. was a severely ill patient at Comprehensive trying to recover from multiple strokes. G.B. was only 56 years old. However, he had extensive medical conditions. They included hypertension, congestive heart failure, fibromyalgia, diabetes, blindness and end-stage renal (kidney) disease. G.B. received dialysis three times a week for his kidney disorder. He took dozens of medications daily. G.B. also had a tracheostomy. A tracheostomy is a tube that goes into the trachea to help people with impaired breathing breathe. The heavy treatment load weighed on G.B. psychologically and caused him anxiety and depression. Ms. Abadie provided respiratory therapy services to G.B. G.B. recognized Ms. Abadie from an earlier time when she worked at Florida Hospital where he had been a patient. He reminded her of that time and established a friendship with her. Over time, the friendship grew closer. As a result of their friendship and Ms. Abadie's compassion for G.B., Ms. Abadie and G.B. spoke regularly. When Ms. Abadie visited her father, she usually checked on G.B. He and Ms. Abadie talked about the range of subjects that acquaintances talk about including families, children, marital status, holiday plans, and day-to-day lives. They spoke regularly by telephone as well as in person. Although they spoke regularly, Ms. Abadie and G.B. did not always speak at length. Sometimes she just waved and poked her head in to say hello. At G.B.'s request, Ms. Abadie brought him items from outside the facility, such as toiletries and a blanket. G.B. grew very fond of Ms. Abadie and wanted her as his girlfriend and eventually his wife. Ms. Abadie did not encourage or reciprocate these feelings or intentions. Lisa Isabelle was G.B.'s only other visitor. G.B. was a friend of her husband. She had known G.B. for most of their lives. Ms. Isabelle rented G.B. a residence on her property. Ms. Isabelle described her relationship with G.B. as "love-hate." Ms. Isabelle held a durable power of attorney for G.B. His family lived out of town and decided it would be good for somebody local to hold the power of attorney. On Sunday, February 4, 2018, Ms. Abadie came to Comprehensive to visit her father. She wanted to watch the Eagles play in the Super Bowl with him. Their family is from Philadelphia. Ms. Abadie stopped at G.B.'s room first. Charity Forest, L.P.N., was on-duty that day. G.B. was one of her patients. Towards the end of the first of her two shifts, Ms. Forest noticed that the curtain by G.B.’s bed was pulled halfway around his bed, which was unusual. The door was open. Ms. Forest entered G.B.’s room and looked around the curtain. She saw G.B. and Ms. Abadie sitting on the bed, on top of the covers. The head of the bed was raised about 45 degrees to provide a backrest. G.B. was wearing long pajama pants but not wearing a shirt. Ms. Abadie was wearing jean shorts, a T-shirt, and Keds®. Ms. Abadie was resting her feet on her iPad® so she would not dirty the covers. G.B. and Ms. Abadie were not touching each other. They were talking, watching television, and looking at pictures on Ms. Abadie's telephone. The room was a two-bed room. There was a patient in the other bed. Ms. Forest thought that the two sitting on the bed was inappropriate and left in search of her supervisor. Ms. Forest could not locate her supervisor. But she met another L.P.N., Ruth Schneck. Ms. Forest told Ms. Schneck what she had observed. Ms. Schneck went to G.B.'s room. The door was open. Ms. Schneck briefly entered the room. G.B. and Ms. Abadie were still sitting on the bed. Ms. Schneck left immediately, closing the door behind her. She joined the search for the supervisor. Neither Ms. Schneck nor Ms. Forest could locate the supervisor. While looking for the supervisor, Ms. Forest and Ms. Schneck encountered Sean Flynn, L.P.N. They told him what they had seen. Mr. Flynn was a licensed practical nurse and a case manager at Comprehensive. He had come to the facility briefly that day in order to take care of some paperwork. After talking to Ms. Forest and Ms. Schneck, Mr. Flynn went to G.B.’s room and opened the door. Ms. Abadie and G.B. were sitting on the edge of the bed facing the door. Mr. Flynn asked them if anything was going on. They said no. Mr. Flynn left the room and called Nicole Lawlor, Comprehensive's Chief Executive Officer. Ms. Lawlor told Mr. Flynn to return to G.B.'s room, instruct Ms. Abadie to leave, and tell her that she would be suspended pending an investigation. He returned to G.B.'s room with Ms. Forest and Ms. Schneck. G.B. and Ms. Abadie were still sitting on the bed. Mr. Flynn asked Ms. Abadie to step outside. She did. G.B. soon followed in his wheelchair. Mr. Flynn told Ms. Abadie that she was suspended and had to leave. G.B. overheard this and became very upset and aggressive. He insisted that Ms. Abadie was his girlfriend and that he wanted her to stay. Ms. Abadie asked to visit her father before she left. Mr. Flynn agreed. Ms. Abadie visited her father for a couple of hours. Ms. Abadie also called Ms. Isabelle to tell her that Mr. Flynn asked her to leave and that G.B. was very upset. After Ms. Abadie's departure, G.B. became increasingly upset and loud. His behavior escalated to slamming doors and throwing objects. Comprehensive employees decided G.B. was a danger to himself and others and had him involuntarily committed under Florida's Baker Act at Mease Dunedin Hospital. On her way home, Ms. Abadie received a telephone call offering her full-time employment at Lakeland Regional Hospital. February 4, 2018, at 6:08 p.m., Ms. Abadie submitted her resignation from Comprehensive in an e-mail to Ms. Lawlor. Ms. Abadie's only patient/caregiver relationship with G.B. was through her employment with Comprehensive. As of 6:08 p.m. on February 4, 2018, G.B. was not a patient of Ms. Abadie. She no longer had a professional relationship with him. Ms. Lawlor suspended Ms. Abadie on February 4, 2018. She based her decision on the information that Ms. Forest, Ms. Schneck, and Mr. Flynn told her, not all of which is persuasively established or found as fact in this proceeding. Still, Ms. Lawlor's memorandum suspending Ms. Abadie reveals that the nature of G.B.'s relationship with Ms. Abadie and the events of February 4, 2018, were not sexual. Ms. Lawlor's Employee Memorandum suspending Ms. Abadie does not identify a state or institution rule violated in the part of the form calling for one. She wrote "Flagrant violation of code of conduct." The description in the "Nature of Infraction" section of the form reads, "Employee was found cuddling in bed with a resident during her time off." There is no mention of sex, breasts, genitalia, or sexual language. None of the varying and sometimes inconsistent accounts of the day mention touching or exposure of breasts, buttocks, or genitalia. None of the accounts describes or even alludes to sex acts or statements about sex. The only kiss reported is a kiss on the cheek that G.B. reportedly forced upon Ms. Abadie as she was leaving. The deposition testimony of the Board's "expert," offers many statements showing that what the Board complains of might be called "inappropriate" or a "boundary violation" but does not amount to sexual misconduct. He testified about the strain a patient expressing romantic feelings toward a therapist puts on the professional relationship. He says the professional should tell the patient that the statements are inappropriate. The witness says that if the patient starts expressing the romantic feelings by touching the therapist, the therapist must tell the patient that his behavior is inappropriate and begin recording the events for the therapist's protection so that "no inappropriate allegations are made later." (Jt. Ex. 3, p. 3). Asked his opinion about allegations that Ms. Abadie was laying on G.B.'s bed, the witness says the behavior "crossed a professional boundary" and that he was not aware of the "behavior being appropriate in any situation." (Jt. Ex. 3, p. 16). The witness acknowledged that a hug is not inherently sexual. (Jt. Ex. 3, pp. 24 & 30). In addition, the training and experience of the witness do not qualify him as someone whose opinion should be entitled to significant weight. Among other things, he has never written about, lectured about, or testified to an opinion about sexual misconduct. Had the deposition not been offered without objection, whether the testimony would have been admissible is a fair question. § 90.702, Fla. Stat. After February 4, 2018, Ms. Abadie attempted to continue her friendship with G.B. by telephone calls and visits. However, Comprehensive refused for several weeks, against G.B.'s wishes, to allow Ms. Abadie to visit G.B. and would only permit Ms. Abadie brief, supervised visits with her father. G.B. was very upset by Comprehensive's prohibition of visits from Ms. Abadie. He began refusing food and treatment, including medications and dialysis. G.B.'s condition deteriorated to the point that he was admitted to hospice care. At that point, on February 24, 2018, Comprehensive contacted Ms. Abadie and gave her permission to visit G.B and lifted restrictions on visiting her father. A February 27, 2018, e-mail from Shelly Wise, Director of Nursing, confirmed this and admitted that the Agency for Health Care Administration had advised that G.B.'s right as a resident to visitors trumped Comprehensive's concerns. Ms. Abadie resumed visiting her friend, G.B. On May 21, 2018, G.B. passed away. G.B. was a lonely, mortally ill man. He initiated a friendship with Ms. Abadie that she reciprocated. Ultimately, he developed unfounded feelings about her being his girlfriend and them having a future together. The clear and convincing evidence does not prove that the relationship was more than a friendship or that it was sexual in any way.
Conclusions For Petitioner: Mary A. Iglehart, Esquire Christina Arzillo Shideler, Esquire Florida Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 For Respondent: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623
Recommendation Based on the preceding Findings of Fact and Conclusions of Law, it is recommended that Petitioner, Department of Health, Board of Respiratory Care, dismiss the Administrative Complaint. DONE AND ENTERED this 17th day of July, 2019, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2019.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice pursuant to Section 760.10, Florida Statutes, by discriminating against Petitioner based upon her sex (gender). Specifically, whether Petitioner was sexually harassed in the work place and/or unlawfully terminated for refusing sexual favors.
Findings Of Fact Respondent is a corporation engaged in the utility construction business. Respondent employs approximately 150 people for a variety of tasks. At all times material, Respondent's president, Bill Beers (male), had at least a partial ownership interest in the company. He currently "owns" the company. Petitioner is female. Petitioner was initially employed with Respondent as an accounting assistant on July 22, 1998. Petitioner had earned a high school diploma and an accounting certificate from Lake Technical Center. She has completed approximately one year of junior college. Jerry Schinderle (male), Respondent's Vice-President of Finance and its Comptroller, made the decision to hire Petitioner. He was in charge of Respondent's accounting department in which Petitioner was employed. Bill Beers did not participate in, or have input for, the decision to hire Petitioner. Mr. Schinderle promoted Petitioner to an accounts payable position on or about August 21, 1998, when another female employee was either terminated or quit. With her promotion, Petitioner received a raise in pay. In her new position, Petitioner's duties were to handle accounts payable, job costing reports, and job tracking. From Petitioner's date of hire until approximately October 1999, Mr. Schinderle was Petitioner's sole immediate supervisor. At all times during this period there were a total of four employees in the accounting department, including Petitioner, Mr. Schinderle, and two female employees. From approximately October 1998 to October-November 1999, Petitioner and Bill Beers engaged in a consensual and intimately sexual romantic relationship. While they were dating in 1998 and 1999, Petitioner gave Mr. Beers a kiss in the morning in his office on the ground floor of the employer's building, before she reported to work in her second floor office. However, it is undisputed that Petitioner and Mr. Beers never had sexual relations at the office. During the period from October 1998 to October-November 1999, their sexual activities occurred only after the work day was over or during their mutual lunch hours in Petitioner's home, in Mr. Beers' home, or in a car. In 1999, Deborah Goodnight (female) was hired from outside the company as Mr. Schinderle's Assistant Comptroller. As such, Ms. Goodnight became Petitioner's immediate superior, and Mr. Schinderle remained in a supervisory capacity over the entire accounting department, which continued to be made up of four employees, counting himself, Ms. Goodnight, Petitioner, and one other female employee. Petitioner complained herein that Mr. Beers promised her the promotion and that she should have been promoted instead of Respondent's hiring Ms. Goodnight from outside the company. Mr. Beers testified that he had refused Petitioner's request to intervene on her behalf with Mr. Schinderle about the promotion. Mr. Schinderle confirmed that Ms. Goodnight was hired solely by himself. Ms. Goodnight had a four-year bachelor's degree in accounting and had been comptroller of another company previously. Ms. Goodnight's qualifications for the position for which she was hired clearly exceeded those of Petitioner. Thereafter, until Petitioner was laid off by Respondent on June 1, 2001, there continued to never be more than a total of four employees in the accounting department: Mr. Schinderle, Deborah Goodnight, Petitioner, and one other female employee. Most of Respondent's employees became aware that Petitioner and Mr. Beers were dating when Mr. Beers escorted Petitioner to a company Christmas party (year unspecified). Petitioner personally told Ms. Goodnight that they were dating. However, no employee who testified was aware of any unprofessional or inappropriate conduct by Mr. Beers with Petitioner in the office at any time while she was employed by Respondent. Sadly, Petitioner's and Mr. Beers' relationship was rocky, and in October or November 1999, Mr. Beers initiated a break-up of their consensual sexual relationship. Petitioner initially claimed that she initiated the break-up but ultimately admitted that she and Mr. Beers mutually agreed to terminate their consensual sexual relationship at that time. Petitioner and Mr. Beers have different views of who pursued whom between November 1999 and February 2000, but both agree that in February 2000, they resumed a sexual relationship outside the office. By each protagonist's account, during a large part of the period from February 2000 to late summer or the autumn of 2000 (see Findings of Fact 16-17), there were periods of good relations and periods of bad relations between the two of them. There were break-ups, one-night stands, and reconciliations at various times. It was, at best or worst, an "on-again-off- again" romance, but there still was no unprofessional or improper conduct observed by anyone at the office. Any sexual liaisons occurred outside the office as previously described. It is undisputed that in July 2000, Mr. Beers left a note on Petitioner's vehicle in which he expressed his desire to terminate their relationship once and for all. Mr. Beers and Petitioner disagree as to whether or not they had sexual relations after July 2000. Petitioner claimed that Mr. Beers importuned her at every possible opportunity, in or out of the office, to have sex with him and had sex with her as late as January 2001. Mr. Beers denied any pursuit of Petitioner and denied any sexual contact with Petitioner after July 2000. Both Petitioner and Mr. Beers have some confusion of dates between what happened at their November 1999 break-up versus their July 2000 breakup, and it is possible to interpret part of Mr. Beers' testimony to the effect that there was a sexual encounter between them as late as November 2000, but upon the greater weight of the credible evidence as a whole, it is found that their sexual relationship ended once and for all in July 2000.. In August 2000, Mr. Beers began dating another woman. In February 2001, he became engaged to her, and she moved into his home. They were married in July 2001. Petitioner claimed to have been harassed by co-workers at Mr. Beers' instigation from the beginning of her employment in 1998 to its end on June 1, 2001. She further alleged that from February 2000 until her termination on June 1, 2001, she strongly felt that she had to comply with Mr. Beers' requests for sexual favors or she would receive some "punishment" in the workplace or lose her job. Likewise, she believed that any advantage she gained in the employment field also was a "gift" from Mr. Beers either to woo her for future sexual favors or to reward her for immediately past sexual favors. Some of Petitioner's allegations in this regard are less than credible simply because she claimed that she was "punished" even while she was engaging in admittedly consensual sex with Mr. Beers from October 1998 to November 1999. Other of her specific allegations of receiving quid pro quo advantages and punishments from Mr. Beers after February 2000, were either not credible on their face or were affirmatively refuted as set out infra. Testimony from other employees and record evidence indicated that Respondent's employment practices were uniform towards all employees, including Petitioner. Petitioner testified that so long as she was engaging in sexual activities with Mr. Beers, she received the benefit of being assigned a company cell phone, but that when she refused to perform sexual favors for Mr. Beers that benefit was taken away. The better evidence shows that soon after they started dating in 1998, Mr. Beers loaned Petitioner a company cell phone, assigned to himself, which he let her use for approximately one week, because she had confided to him that the man that she was living with was abusive and she was afraid of him. Also, when Petitioner or anyone else handled the payroll, that person had the use of a company cell phone. Petitioner was unable to show that at any time during her employment from 1998 to 2001, there was any permanent, or even lengthy, assignment of a company cell phone to her, or that such an assignment was taken away from her. Petitioner testified that so long as she was engaging in sexual activities with Mr. Beers she received the benefit of being assigned a company car for personal use. Petitioner was able to establish only that, occasionally, during their first consensual relationship in 1998-1999, Mr. Beers loaned her the use of his company-issued car and also provided her with his company-issued credit card with which to pay for gassing-up that car for both of them to use. While this may constitute a misuse of the employer's car and card by Mr. Beers, the greater weight of the credible evidence is still contrary to Petitioner's unsupported testimony that a company vehicle was assigned to her and then removed from her custody due to her refusal of sexual favors to Mr. Beers. The testimony of several witnesses on this point was corroborated by a list of vehicles and the names of employees to whom those vehicles had been assigned. Petitioner's name does not appear on this list. The list further supports a finding that the majority of vehicles owned by Respondent employer were trucks and other types of heavy equipment which were assigned to male employees working in the field, as opposed to ordinary vehicles assigned to any office staff, either male or female. Like all Respondent's other employees, Petitioner had access to a company pool vehicle which any employee was allowed to use for company business or for personal use when his or her own vehicle was being repaired or was otherwise out of commission. This vehicle was never individually assigned to any employee. Petitioner claimed that during and after her sexual relationships with Mr. Beers, and continually until her 2001 termination, he directed other employees to purposefully harass her, withhold information or invoice sheets, or create other road blocks to her successfully performing her job duties or completing her assignments at work. Petitioner's testimony is particularly incredible on this point because she specifically contended that several of the instances when other employees harassed her or made her job more difficult took place during the time she admittedly was engaging in a consensual relationship with Mr. Beers in 1998-1999. Also, no other evidence or testimony corroborated Petitioner's analysis in this regard for any time period. No employees were affirmatively shown to have intentionally tried to prevent Petitioner from being able to perform her job duties at any time, including 2000-2001. Moreover, at no time did Petitioner report any harassment by co-workers to Ms. Goodnight or Mr. Schinderle. Petitioner was only occasionally reprimanded for not doing her job well, and she continued to be employed and to receive regular raises throughout her 1998-2001 employment Petitioner contended that Mr. Beers described in lurid detail their sexual activities to other male employees, who then accosted her with suggestive comments. There was no corroboration for this allegation. Although it is probable that rough-and-tumble male employees speculated about the relationship between their boss and Petitioner and it is further probable that they occasionally goaded Petitioner with their speculations, there is no corroboration, whatsoever, that Mr. Beers discussed Petitioner with co-workers or encouraged any bad behavior toward Petitioner by them. The comments, if they occurred, certainly were not shown to be pervasive behavior in the workplace. Petitioner also incredibly claimed that, in general, other employees were instructed not to talk to her both during and after the end of her sexual relationship with Mr. Beers. Other employees testified that they were not aware of any instructions at any time by Mr. Beers or anyone else that they should refuse to speak with Petitioner. Even Petitioner conceded that Ms. Goodnight was reasonably cordial to her at all times. Petitioner specifically claimed that one particular employee, Glen Busby, was instructed by Mr. Beers not to speak to her and was "punished" for speaking with her by having a company vehicle taken away entirely or replaced with an older, poorer quality car. She conjectured that Mr. Busby was also terminated by Respondent as a result of befriending her. Contrariwise, Mr. Busby testified credibly that he was never instructed by Mr. Beers or his supervisors not to speak to Petitioner. Mr. Busby stated that he had left Respondent's employment for approximately a year in order to care for his mother, who was dying. He also related that when he returned to work for Respondent, he was not assigned a vehicle such as he had previously been assigned, because he came back as a project manager, working primarily in the office, as opposed to returning as a construction site employee who needed a heavy duty vehicle on a jobsite. He acknowledged that while he had been in the field, several company vehicles had been assigned to him and that these were frequently replaced with newer, better- conditioned vehicles. Petitioner was unable to show that any professional training element of her employment was dependent on whether she did, or did not, provide sexual favors. The greater weight of the credible testimony, plus records and calendars, demonstrated that Petitioner received the same internal accounting training as other accounting department employees, mostly from Mr. Schinderle on a rotating basis. Mr. Schinderle testified, and Petitioner acknowledged, that she also was provided with specialized accounting programming training by an outside computer company representative. Petitioner described one instance, apparently in late 1998, possibly while the consensual relationship with Mr. Beers was still "on," when she took off from work for approximately two weeks. She passed the first week as a Mayo Clinic outpatient for kidney problems and passed the second week in her home or in hospital emergency rooms, due to postoperative problems. She claimed that during these two weeks, she was unable to have sexual relations with Mr. Beers and refused to have sex with him when he personally delivered her paycheck to her home after the first week. She claimed that he had promised her that she would get her check for the second week, too, but when she refused him, he refused to pay her for the second week that she was unable to work. Actually, Respondent's records show that Respondent had paid Petitioner regular wages for ten days, but she was required to reimburse the employer for the tenth day she was off work that was not covered by saved sick leave or another leave policy. Although Petitioner showed some abuses of company policy regarding breaks and smoking committed by individual employees, the greater weight of the credible evidence is that such company policies were equally applied and enforced among all employees, including Petitioner. Petitioner characterized a bonus she got in February 2000, the first month of the February 2000-July 2000 reconciliation, as a quid-pro-quo reward from Mr. Beers because she had agreed to resume her relationship with him. However, in fact, it was company policy to distribute annual bonuses to everyone in the company in February of each year. The amount paid out by the company depended on the amount authorized by auditors based on the prior year's business profit. Petitioner received an annual bonus each February she worked for Respondent, but the amount varied, according to the company's profit, for Petitioner and for all other employees. In February 2000, all employees received their annual bonuses. Petitioner and two other members of Respondent's office staff, who were not having an affair with the company president, received identical amounts of $2,500.00 annual bonus based on their function within the company. It is undisputed that on January 19, 2001, after their final break-up, Petitioner approached Mr. Beers in his office and indicated that she was having difficulty accepting the end of their relationship. She had apparently anticipated that they would eventually marry, and was struggling with the fact that Mr. Beers was romantically involved with the woman he had begun dating in August 2000. Petitioner asked Mr. Beers to pay her money so that she could go away and find other employment. Petitioner contends that this was a request for Mr. Beers to pay her the bonus that Respondent annually paid its employees each February. Mr. Beers interpreted Petitioner's January 19, 2001, request for money as a demand that he pay her to quit her job and get out of his life. He refused to accept her offered letter of resignation. Petitioner claims that on January 26, 2001, Respondent advertised as vacant her position as "account payable specialist" in the newspaper, but no date appears on the supporting exhibit; Petitioner was not terminated; and no replacement for Petitioner was hired. At all times material, Respondent had a sexual harassment policy in place which required a victim of sexual harassment to report such harassment to his/her supervisor or the company president. Petitioner received a copy of the policy when she was hired in 1998. Petitioner admittedly did not complain to her immediate superior, Ms. Goodnight, at any time. Although Petitioner claimed she reported harassment by Mr. Beers, the company president, to Mr. Schinderle in late 1998, just prior to her first break-up with Mr. Beers, Mr. Schinderle recalls no such report. Although Mr. Schinderle testified that if Petitioner had reported any alleged sexual harassment by the company president he would have brought the complaint to the attention of the company's then-majority stock-holder, Mr. Schinderle is less than credible on that single point. However, Petitioner's "resignation letter" of January 19, 2001, may be considered notification to Mr. Beers and Respondent employer of most of the allegations raised in this case. Sometime in February of 2001, Petitioner received her annual bonus, like any other employee. It was based on the earnings of the company in the year 2000. Every employee on the second floor of Respondent's office got the same amount. On February 23, 2001, Petitioner received a raise from $13.00 to $13.50 per hour for taking on the additional responsibility of adding a new phone system. The appropriate paperwork was filled out for this raise, and witnessed by Mr. Schinderle and Mr. Beers. Given the foregoing, plus Petitioner's admission that she voluntarily took on the additional phone duties in order to get the raise, Petitioner's characterization of the raise as her reward for giving Mr. Beers sexual favors is not credible. Sometime in March 2001, Petitioner showed up at Mr. Beers' home intoxicated. Mr. Beers' fiancée and his son were residing in the home. Petitioner asked to come in, and Mr. Beers asked her to go away and not make a scene because he did not want to have to call the police. One Sunday a few weeks later, Petitioner approached Mr. Beers' fiancée and his mother in WalMart. Petitioner's characterization of this conversation varies, but it is clear that what she said was intended to shock the fiancée and damage Mr. Beers' relationship with fiancée. Petitioner left a message on Mr. Beers' telephone before his mother and fiancée could return home from WalMart. Her message was to the effect, "I just caused you a bunch of problems." Petitioner came to Mr. Beers' office at Respondent's place of business on the following Monday morning and gloated. Mr. Beers angrily ordered her out of his office, but he did not terminate her. Petitioner testified that she believed that Mr. Beers ordered all of Respondent's employees to be tested for drugs on March 19, 2001, in an effort to "catch" her because she had confided to him back on November 25, 2000, that she had smoked "pot" (marijuana) in order to relieve her distress over their deteriorating relationship. At first, Petitioner claimed that she was too frightened to show up for the test. Later, she claimed to have been "escorted" to the drug testing center by two other employees. The greater weight of the credible evidence is that company policy was to do drug testing of every employee when that employee was hired and then drug test selected employees at random intervals, but that the policy had been only loosely followed. Of the employees who testified on the subject, only Mr. Schinderle recalled being drug-tested upon his date of hire in 1993. Ms. Goodnight and others had never been tested. It appears that Bill Padgett, Respondent's head of security, had previously done random drug testing in a very random manner, so all employees who had not previously been tested for drugs, including Ms. Goodnight, Petitioner, and the other female employee in the accounting department, were tested on March 19, 2001. Petitioner rode, as a matter of convenience, in the same car to the drug-testing site with the other two females employed in the accounting department. Petitioner was not singled out at that time. In fact, all employees, even Mr. Padgett and Mr. Beers, were tested. Petitioner passed the drug test and was not laid off in March 2001. Petitioner kept a log of personal notes and summarized them into a diary. This item, which may have been edited and copied over several times, reflects that Petitioner connected every life event, however small, to Mr. Beers. According to Petitioner's notes from March 20, 2001, Petitioner was "an emotional wreck," and she thought that Mr. Beers wanted to "get rid of" her and was "finished with me now." In her accounting post, she had seen a $5,000.00 check Mr. Beers had written on "Monday" and speculated whether or not it was for an engagement ring. Mr. Beers and his fiancée had become formally engaged in February 2001. (See Finding of Fact 17.) Although Petitioner testified that on March 21, 2001, Mr. Beers arranged for her to get additional company medical and/or dental benefits so as to make good a promise to her in return for her sexual favors, several of Respondent's employees testified more credibly that Petitioner was given the same health and other benefits as all other employees in her "Hourly B" class, throughout her employment with Respondent. Moreover, the greater weight of the credible evidence is that all of Respondent's employees were offered an opportunity to sign-up for additional health benefits and that Petitioner had the same opportunity for this benefit as every other employee did, and that she had, in fact, received the benefits for which she signed-up. At the beginning of the second quarter of the year 2001, in approximately April or May, Respondent made the decision that each department would have to cut staff and overhead expenses due to deteriorating business conditions and the cancellation of a lot of expected work. Mr. Beers gave each department head, including Mr. Schinderle, the sole discretion to make the decision as to who would be laid-off, based upon the position the department head believed would be most easily and efficiently eliminated. Mr. Schinderle was department head for the accounting department. He made the decision to lay-off Petitioner effective 6/1/2001. Mr. Schinderle did not receive any input or guidelines from Mr. Beers except to lay-off the one employee he could best do without. Mr. Beers had no discussions with Mr. Schinderle regarding the decision to lay-off Petitioner. Mr. Schinderle testified that he felt Petitioner's position could be the most easily eliminated because the Assistant Comptroller, Deborah Goodnight, was able to perform the functions of her own position and the functions of Petitioner's position. In fact, Ms. Goodnight was capable of doing the work of either Petitioner or the other female employee, but she was not consulted by Mr. Schinderle. On or about June 1, 2001, Petitioner and three other employees were laid-off from their positions with Respondent. Each of the other employees was from a different department and the decision to lay-off each of them had been made by different department heads than Mr. Schinderle. Mr. Schinderle listed Petitioner as eligible for re- hire. Petitioner never called back to Respondent in any attempt to be re-hired after her lay-off. After Petitioner was laid-off, there remained only three (not four) employees in Respondent's accounting department. The accounting department was able to effectively and efficiently function with the reduced three-person staff and did not acquire additional staff for approximately four years, until May 2005.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 22nd day of March, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 22nd day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John Vernon Head, Esquire John Vernon Head, P.A. 138 East Central Avenue Howey-in-the-Hills, Florida 34737 Stephen W. Johnson, Esquire Stephanie G. McCullough, Esquire 1000 W. Main Street Leesburg, Florida 34748
Findings Of Fact The Respondents, Sandra Hoskins and Michael Mancuso, (the licensees), hold license number 62-957, Series 4 beverages by the drink for consumption on the premises of Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida. Sweethearts is known as a bar where, in addition to buying alcoholic beverages, the mostly male patrons can watch "exotic dancing" on stage and pay $5 plus tip for a "lap dance." The dancers are physically attractive females dressed in underwear or "T-back" bathing suits. 1/ They are engaged by the management of Sweethearts to perform at Sweethearts. As they dance on stage, the disc jockey on duty introduces them by their stage names to the patrons present and encourages the patrons to ask the dancers to perform "lap dances" for them personally. The dancers also directly solicit "lap dances" from the customers. At the end of each shift, each dancer "tips out" $10 to the "house," i.e., pays the licensees $10, and "tips out" $5 to the disk jockey. As evidenced by what took place at Sweethearts on April 13 and August 25, 1989, a "lap dance" typically lasts for one song played by the disk jockey. The dancer escorts the patron to one of the booths lining the perimeter walls of the bar area, sits the patron down near the edge of the booth bench and begins "dancing." During the "dance," which is performed to the rhythm of the music, the dancer rubs various parts of her body, including the genital area, buttocks and breasts, against various parts of the body of the customer, including his genital area and face. Although the customer remains fully dressed during the "dance," and the dancer does not remove any clothing (i.e., she remains dressed either in underwear or in her "T-back" bathing suit), the "dance" is intended to simulate various sex acts, and purpose of the "dance" to arouse the customer sexually. Sometimes, the "dancer" fondles herself and acts as if she herself is becoming sexually aroused by the "dance." Sometimes, the customer rubs the breast area of the "dancer" or grabs her buttocks in the area of the anal cleft, and the "dancers" typically do little to stop or deter this behavior. Although the "lap dancing" occurs in a part of the bar where the lighting is red and subdued, it is highly implausible that the licensees, if on the premises, or the licensees' representative(s) on the premises would not know that the "lap dancing" described above was taking place on the premises. It is open and notorious. There was some evidence that there might be a nominal official policy at Sweethearts prohibiting patrons from touching the dancers. But the evidence is clear that management "winks at" violations of this official policy, if there indeed is one, and management policies in place at Sweethearts encourage the dancers to allow the patrons to touch them. (Allowing it to continue increases the chances of getting tips from customers such as these.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking license number 62-957, Series 4-COP, issued to the Respondents, Sandra Hoskins and Michael Mancuso, d/b/a Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida. RECOMMENDED this 25th day of October, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 October, 1990.
The Issue Whether or not on or about the 7th day of June, 1976, on the Respondent's licensed premises located at 10 West Church Street, Jacksonville, Florida, the Respondent, its agent, servant or employee, to wit: Cynthia Brown, did unlawfully commit a lewd act with another by dancing in a topless state for Vice Detective Cornell B. Iverson and attempting to place the nipples of her breasts in his mouth and attempting to rub her vagina against his knee and hand, and also fondling Iverson's penis with her hands, in violation of s 798.02, F.S. thereby violating s 561.29, F.S. Whether or not on or about the 7th day of June, 1976, on the Respondent's licensed premises located at 10 West Church Street, Jacksonville, Florida, the Respondent, its agent, servant or employee, to wit: Gaynell Moore, did unlawfully commit a lewd act with another by dancing in a topless state and allowing a patron, one Bruce Anthony Timmons, to fondle her buttocks and vagina while she rubbed her bare breasts in his face, in violation of s 798.02, F.S. thereby violating s 561.29, F.S.
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 The Harem, located at 10 West Church Street, Jacksonville, Florida, was licensed under License No. 26-957, Series 2-COP, held with the State of Florida, Division of Beverage. On June 7, 1976, Officer C. B. Iverson of the Jacksonville Sheriff's Office, entered the licensed premises. Officer Iverson entered the premises in the capacity of an undercover officer making a routine check. Shortly after his entry, another officer of the Jacksonville Sheriff's Office, one W. L. Geiger, came into the licensed premises. One of the dancers in the bar, working at that time, was Cynthia Brown. Brown approached Iverson and asked Iverson if he wanted her to dance. She danced for Iverson for the duration of three or four dance records. During the course of the dancing, she attempted to place the nipples of her breasts into the mouth of Iverson and attempted to rub her vagina on his hand, which hand was placed on his knee while he was seated. Other persons were in the licensed premises at that time, to include a female bartender and four other dancers. None of these individuals attempted to stop the conduct of Cynthia Brown. On the same date, June 7, 1976, Bruce Anthony Timmons was one of the patrons. Timmons was seated on a bar stool and was approached by Gaynell Moore, a dancer working in the licensed premises at that time. Gaynel Moore was dressed in a black brassiere and bikini type outfit. After being approached by Moore, Timmons placed his mouth on the breast of Gaynell Moore. Timmons also massaged the vagina of Gaynell Moore and fondled her buttocks. None of the aforementioned employees in the licensed premises attempted to stop Gaynell Moore's activity with Timmons. All the circumstances between Moore and Timmons occured during the course of her dancing for him.
Recommendation It is recommended that the license of the Respondent, G and B of Jacksonville, Inc., trading as the Harem, license no. 76-957 be suspended for a period of 10 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 725 Bronough Street Tallahassee, Florida 32304 Harry Katz, Jr., Esquire 337 E. Forsyth Street Jacksonville, Florida 32304
The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Edward G. LeGer, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Petition was received by the Division of Administrative Hearings on November 9, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department had requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The hearing was conducted on December 16, 1981. In the course of the final hearing the Petitioner testified and offered as witnesses, Larry Carroll and James Thaddeus Rogers, participants in the sex offender program at Florida State Hospital in Chattahoochee, Florida. The Petitioner submitted two exhibits, composite in nature, which were admitted. Respondent called as witnesses, Robert Alcorn, Clinical Director for the Mentally Disordered Sex Offender Program at Florida State Hospital; Michael Pomeroy, Clinical Psychologist at Florida State Hospital and Connie Smith, Clinical Social Worker at Florida State Hospital. Respondent presented no exhibits. At all times pertinent to this proceeding, Petitioner has been in the custody of the Respondent, in keeping with the orders of Court and the authority of Chapter 917, Florida Statutes (1977). During that time, the Petitioner has resided at the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in the hospital program for the benefit of mentally disordered sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in the recognition of and ability to deal with the underlying conditions which caused him to be placed in this program have reached their zenith. In the face of these circumstances, the Respondent has made a preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. These opinions were made known to the Petitioner and when confronted with this information, the Petitioner requested the formal hearing which is the subject of this Recommended Order. LeGer was committed to the custody of the Respondent on February 27, 1979, the Court having found him to be a mentally disordered sex offender within the meaning of Chapter 917, Florida Statutes (1977). He was received into the program at the Florida State Hospital in Chattahoochee, Florida, on April 23, 1979, and has undergone treatment beginning on that date. The objectives of the treatment program were to deal with LeGer's long standing sexual deviation, which specific condition is pedophilia and his associated difficulty with chronic alcoholism, until he no longer evidenced himself to be a menace to society in terms of sexual "acting out" or until it was concluded that he could no longer be treated for these difficulties. (The patient also had undergone treatment as a sex offender in the 1960's.) The program at Florida State Hospital has as its central focus the utilization of group therapy with adjunctive programs in recreational and occupational therapy, and this treatment regime relies heavily on a patient's self-motivation. Petitioner's Composite Exhibit No. 1 is constituted of a series of progress reports or clinical summaries of Petitioner's condition during the course of his treatment. As can be seen, the patient has made significant progress in dealing with his condition of alcoholism and his general conduct and demeanor has been exemplary; however, he has gained little insight into his sexual condition of pedophilia. This is borne out by the patient's beliefs that the staff session of September 16, 1981, in which he expressed his firm belief that he had reached maximum benefits from the treatment program and felt that he was no longer a risk to commit the sexual offenses, in that he was aware of the consequences of his deviant behavior for himself and others. This belief is erroneous, in that the staff report and the testimony given by staff members in the course of the hearing lead to the conclusion that the patient has not gained sufficient insight and understanding as to his deviant sexual behavior, sufficient to deter him from committing future sexual offenses. Michael Pomeroy, the patient's primary therapist from May, 1980, through mid-January, 1981, by his testimony, established the fact that the Petitioner had never been open enough with Pomeroy for Pomeroy to gain an understanding about what the patient's underlying problems were. It was through the witness Pomeroy's review of the history of the case that Pomeroy learned of the patient's problems with alcoholism and pedophilia related to young females. Pomeroy correctly describes the patient's participation in the program to be superficial, with the exception of the alcoholic rehabilitation aspects of the treatment and care. In dealing with Pomeroy, the patient was evasive and his behavior evidenced a manipulative demeanor (con or criminal attitude). In dealing with the question of his sexual problem, the patient simply would tell Pomeroy that he, the patient, wanted treatment. Pomeroy found the patient to be of the persuasion that the patient did not feel that he had a problem other than alcoholism, which had been overcome, and having overcome the alcoholism, all other problems were taken care of. Pomeroy found LeGer to have no understanding of what caused him to do his sexual acting out or what to do about that acting out in the future. These attitudes by the patient continued through the time of the final hearing, according to Pomeroy. In view of the lack of insight and no clear changes in attitude during the course of treatment and the resulting belief by the Petitioner that he does not have a problem of sexual deviance, Pomeroy's testimony establishes the fact that the Respondent is unable to treat the patient's pedophilia and the fact that his condition of pedophilia still presents a danger to society. Connie Smith, the patient's therapist from January, 1981, to the present, identified the most recent analysis by the staff of the problems presented by the patient's clinical profile. Those problems are: (1) gaining insight and understanding into deviant sexual behavior; (2) defensiveness and evasiveness with regard to relating feedback about himself and events directly related to his sexual problems; (3) exploring his needs to be over attentive to the needs and problems of others; and (4) exploring his dependence on alcohol. In these areas, Smith has found that the patient has not progressed in dealing with his sexual deviation and tends to over exaggerate his progress in that area. LeGer tells the therapist that he will do what she wishes him to do to participate in the program; however, he does not believe that he needs the therapy. (This comports with the testimony which LeGer gave in the course of the hearing. Notwithstanding this belief, he stated that he wanted to stay six months more in the program and that he would have done better had the therapy been more intense. The witnesses Carroll and Rogers agreed with this latter remark by the Petitioner and also expressed a belief that the patient had successfully completed the program, opinions not supported by the other evidence and not accepted by this Hearing Officer.) According to Smith, when LeGer has occasionally discussed the event which placed him in the program on this occasion, i.e., sexual battery on a minor female, he has discussed it in a superficial way and tended to place some blame on the victim. Finally, Smith agrees with Pomeroy's perception that the patient does not have sufficient insight into his problem and continues to meet the definition of a sex offender within the meaning of Chapter 917, Florida Statutes, and will not make progress by additional stay in the program. These perceptions are well founded. The Clinical Director of the Florida State Hospital Sex Offender Program, Robert H. Alcorn, presented the Petitioner's situation through a staffing conference of program officials in the other sex offender programs offered by the Respondent. This occurred on November 2, 1981, and it was the feeling of the other program officials that they would not be able to assist the Petitioner further, and in that sense, as in the situation at Florida State Hospital, had exhausted treatment for the Petitioner's underlying sexual deviance. The Respondent has exhausted all appropriate treatment for the patient's sexual problem, but that treatment has not been totally successful and the patient continues to be a sexual menace and there is a likelihood that the patient would commit other sexual crimes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Edward G. LeGer in its sex offender programs and that said Edward G. LeGer be returned to the committing court for further disposition. DONE and ENTERED this 13th day of January, 1982, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1982. COPIES FURNISHED: Edward G. LeGer Florida State Hospital Chattahoochee, Florida 32324 Ted Mack, Esquire Florida State Hospital Chattahoochee, Florida 32324
