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, Melvin Robinson, through sex offender programs administered by the Respondent. See Section 801.111, Florida Statutes (1975).
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 4, 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 final hearing in this cause was conducted on January 5 1982, following a continuance of the previously scheduled hearing of December 16, 1981, which was designed to allow the Petitioner to gain the assistance of counsel. The Petitioner was unable to make those arrangements and the hearing was held with the Petitioner appearing pro se. In the course of the final hearing, the Petitioner testified and offered as witnesses, Alice Butler, Section Aide in the mentally disordered sex offender program, Florida State Hospital; Sterling George, Psychiatric Aide in the mentally disordered sex offender program at Florida State Hospital; and Alfred Gerardo, a participant in the sex offender program at Florida State Hospital. The Respondent offered as witnesses, Robert Alcorn, Clinical Director for the mentally disordered sex offender program at Florida State Hospital; Charles Shaffer, Clinical psychologist in the aforementioned program; Allison Dowling, Clinical social Worker in that program; and Lois Stevens, Clinal social Worker at Florida State Hospital. The Respondent presented two exhibits which were admitted into evidence. At all times pertinent to this proceeding Petitioner has been in the custody of Respondent, in keeping with orders of court. During that time, the Petitioner has resided at the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in the program for the benefit of sex offenders, to include those persons committed under Chapter 801, Florida Statutes (1975), entitled "Child Molester Act." Although the Petitioner has been subjected to a full range of treatment opportunities his progress in the recognition of and the ability to deal with the underlying conditions which caused his placement in the program are at end. 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. Robinson was admitted to the forensic service at Florida State Hospital on October 9, 1990, to begin his participation in the mentally disordered sex offender program. He had previously been enrolled in the program from March, 1979, through February, 1979, a commitment under the terms of Chapter 801, Florida Statutes. Following his initial release from the program, Robinson was accused of violating the terms and conditions of probation and was adjudicated guilty of the offense for which probation was granted. Imposition of a sentence in that case was withheld and the Petitioner was returned to the custody of the Department of Health and Rehabilitative Services, in keeping with the rationale expressed in his original commitment to the program at Chattahoochee, which original commitment had occurred by Order of Court on February 20, 1976. In the matter of the most recent offense which had caused the revocation of Robinson's probation, Robinson received a sentence of ten years in the Florida State Prison; however, service of that sentence was stayed pending release and discharge from the custody of the Respondent on this most immediate commitment for care and treatment in the mentally disordered sex offender program. Beginning with the October 9, 1980, hospital stay, the goals of the program have been to deal with the patient's problems concerning sexual deviation, pedophilia; alcoholism; inadequate and passive aggressive personality styles and cultural deprivation. Notwithstanding the efforts of the patient and those of the staff to deal with the underlying disorders, this success has not been complete. The treatment has been exhausted in this program and other similar programs in the system in the State of Florida, and the Petitioner still presents a danger based upon his sexual deviation and propensity to commit sexual acts involving children, in particular minor females. These determinations are reached in the face of the facts that follow. The program at Florida State Hospital has as its main 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. The Respondent's Exhibit 2 is a series of clinical summaries related to the patient's performance during the course of his treatment. The most recent evaluation points out, in general terms, the Petitioner's pattern of acting-out behavior and disregard for ward policy and, more importantly his lack of motivation and progress in the therapies which are essential to success in the program. In addition, testimony was given in the course of the hearing on the part of the Petitioner's therapist and other persons affiliated with the treatment team. Lois Stevens had been the Petitioner's primary therapist from October, 1980, to January, 1981. She observed in the Petitioner indications of low self- esteem; the fact that the Petitioner was easily disappointed; that he was easily influenced by others; that he had an inability to deal with abstract feedback and a problem of allowing himself to be abused. These were matters of concern which needed to be addressed as a prerequisite to dealing with the Petitioner's sexual deviation. In effect, this was a process of identifying the problems which underlie his sexual deviation. In this connection, Stevens found that the Petitioner had the desire to do better but evidenced poor judgment and impulse control. These circumstances were aggravated by the fact that the Petitioner had and has limited intellectual ability. During this phase no intense effort was made to discuss the sex offense, molestation of a young girl. While in this treatment situation, Robinson accepted staff criticism in an appropriate way and he did improve in personal hygiene, which had been a problem initially. After a period of time it was determined that the Petitioner should be placed with a separate therapist to go forward with his treatment. From January, 1981, to July, 1981, the Petitioner had Allison Dowling as his primary therapist. In the beginning Robinson performed reasonably well and had been given some freedom of movement within the facility and was granted a position as a patient volunteer on the ward. He was beginning to cope better in the institutional environment; however, he remained reluctant to examine, in therapy sessions, the problem of his sexual deviation. Specifically, that difficulty related to his ability to deal with insight oriented therapy. He would enter into a discussion of the offense in the therapy sessions, but tended to minimize the seriousness of his offense, demonstrating marginal understanding of the etiology and maintaining factors in his deviant sexual behavior. Moreover, between sessions with the group he tended to forget what had been dealt with on the prior occasion. He had to be prompted to participate, with one exception. As established by Dowling in this sequence of the treatment, the Petitioner began to act in an inappropriate way while on the ward and was tardy for group therapy sessions. In the connection with his misbehavior on the ward, it was necessary to force the Petitioner to engage in a discussion of those matters and the act of taking away his privileges of freedom of movement and position did not promote a change in the Petitioner. He attempted to manipulate staff members about the misbehavior and to have group members in the therapy sessions accept his side of the dispute as opposed to directly addressing problems. The items of misbehavior included homosexual activity with another participant of the program and sleeping in the nude, which were contrary to hospital policy. On another occasion the Petitioner attempted to get a staff aide to take him to an unauthorized activity, in violation of ward policy. Dowling has observed little progress in the Petitioner's attempts to control his sexual misbehavior and she correctly indicates that his sexual deviance still exists and no further progress can be made in dealing with this condition. Charles Shaffer, a clinical psychologist was the primary therapist for the Petitioner from November, 1981, to January, 1982. His observations concerning the progress of the Petitioner are in accord with those of Allison Dowling. He did note that the Petitioner has shown himself to be willing to help others with their daily problems but is unwilling to participate himself, and by way of explanation Robinson states that the other patients don't understand or can't understand his problem related to the sexual deviance. Shaffer's observations establish that the Petitioner is comfortable with his life style, and hasn't indicated any desire to change that pattern. Robert Alcorn, the director of the mentally disordered sex offender program at Florida State Hospital, through his testimony indicated agreement to the effect that the treatment had been exhausted in that program without success, which is an accurate depiction. Alcorn also established that conferences related to Robinson's potential placement in affiliated sex offender programs led to the conclusion that those programs could not assist the Petitioner, ergo, treatment has been exhausted in those other facilities. The Petitioner, through his testimony, acknowledged that he had participated in homosexual activities at the hospital and had been punished by the suspension of his grounds privileges and job opportunity. Following those episodes the Petitioner indicated that he lost interest in participating in the program but did in fact participate. He acknowledged that he attended occupational therapy, as well as the primary therapy, and was tardy at times. Robinson admits that he has difficulty explaining himself and has problems with impulse control. He says he can't find himself, is tired of being a nothing. Robinson believes he does not always think before acting. Finally, he has a fear of returning to court and facing the disposition of his case. Alice Butler, a witness for the Petitioner who was a co-therapist at the time that Stevens was assigned to Robinson's case, established that earlier in the treatment Petitioner was more motivated in his participation than he has been recently. And, in fact, the Petitioner has broken the rules as recently as two weeks prior to the hearing by sleeping nude. She also observed that the Petitioner has been in the so-called "observation section" for a long time and is satisfied with his placement. (This particular section is a more restricted area than some of the other advanced wards.) Sterling George, a psychiatric aide and witness for the Petitioner from his observation finds that as a general proposition the Petitioner takes part in activities with other patients and is not a problem on the ward. Finally, Alfred Gerardo, another participant in the mentally disordered sex offender program, gave testimony. He has known the Petitioner for approximately fifteen months. He has also participated in the same group with Robinson from October, 1980, through May, 1981. His initial impressions of Robinson were not favorable, but in the last few months he has gained a better appreciation of the Petitioner. In particular, he has observed Robinson to have made improvement in terms of his willingness to he concerned about matters of education and acting-out, and in the realm of the Petitioner's appearance. From this witness's understanding the Petitioner's participation in group activity is limited and particularly so in the area of the underlying sexual problem. In summary the Respondent has exhausted all appropriate treatment for the Petitioner's sexual deviance, but that treatment has not been totally successful and the patient continues to be a sexual menace, and there is a likelihood that the Petitioner would commit other sexual crimes.
The Issue Whether Petitioner, Paul Rancourt (Mr. Rancourt), established through clear and convincing evidence his actual innocence, thereby entitling him to compensation under the Victims of Wrongful Incarceration Compensation Act, chapter 961, Florida Statutes (2011).1/
Findings Of Fact Before discussing the findings from the administrative hearing, it is appropriate to set out the procedural history of the criminal proceedings. On December 18, 1996, the State charged Mr. Rancourt and Daniel McLean (Mr. McLean) with the kidnapping and three counts of sexual battery of A.S., which occurred on October 31, 1996. On July 27 through July 30, 1998, the State tried Mr. Rancourt and Mr. McLean together. The jury convicted both men, and the trial court sentenced Mr. Rancourt and Mr. McLean to life imprisonment on each count with the sentences to run concurrently. On April 5, 2000, the Second District Court of Appeal issued an opinion overturning Mr. McLean's conviction based on trial errors. McLean v. State, 754 So. 2d 176 (Fla. 2d DCA 2000). The appellate court reversed Mr. McLean's conviction for kidnapping because it found that the State "failed to prove [McLean] intended the kidnapping to occur, or that he performed any action that assisted in the kidnapping." Id. at 180. Further, the appellate court found that the trial court erred in two key evidentiary rulings. First, the trial court erred in allowing the State to elicit testimony from the medical provider who examined A.S. following the assault. The disputed question was: "[d]id she act in any way inconsistent with the way a rape victim would act?" Id. at 181. The appellate court found that the prejudicial effect of the expert testimony substantially outweighed its probative value. Id. Second, the trial court erred in excluding testimony under the Rape Shield Statute.3/ Id. Specifically, the trial court erred in not allowing Mr. McLean's attorney to cross-examine the medical provider about whether or not the A.S.'s soreness in her vulva area was due to the fact that she had not had sexual intercourse in the past year, as opposed to a sexual battery. Id. The appellate court found that this question went to a key issue of whether the sexual contact was consensual. The appellate court found the exclusion of this testimony was not harmless error; and thus, reversed Mr. McLean's convictions and sentences, and ordered a retrial. On January 5, 2001, Mr. McLean, pursuant to a plea agreement, pled nolo contendere to one count of sexual battery, section 794.011, Florida Statutes (1996). Based on the plea agreement, Mr. McLean was sentenced to 64 and one-half months’ incarceration, which reflected his time served, and two years’ probation. On June 14, 2000, the Second District Court of Appeal affirmed Mr. Rancourt's convictions for sexual battery and kidnapping, and his life sentences. Rancourt v. State, 766 So. 2d 1071 (Fla. 2d DCA 2000). In affirming Mr. Rancourt's conviction, the appellate court found that trial counsel had failed to preserve the issues concerning the medical expert's opinion vouching for the victim's credibility and the exclusion of the medical testimony under the Rape Shield Statute. On September 13, 2000, the appellate court issued its mandate. On September 10, 2002, Mr. Rancourt filed a post- conviction motion alleging ineffective assistance of counsel. Notably, Mr. Rancourt's post-conviction motion alleged, in part, his trial counsel was ineffective for failing to preserve the evidentiary issues that had formed the basis of Mr. McLean's reversal. On November 3, 2003, the circuit court entered an order vacating Mr. Rancourt's convictions and sentences "after considering the Motion and applicable law, and upon agreement of both parties[.]" The order directed that a new trial be held. On September 27, 2005, the State re-tried Mr. Rancourt for sexual battery and kidnapping. The jury convicted Mr. Rancourt of the lesser-included offense of battery, section 784.03, Florida Statutes (1996), a first-degree misdemeanor. Consequently, the trial court sentenced Mr. Rancourt to one year in the Polk County jail with credit for time served. On June 25, 2010, Mr. Rancourt filed the Amended Petition for Determination of Wrongfully Incarcerated Person, which is the subject of this hearing. Mr. Rancourt has not been convicted of any other felony in any jurisdiction. At the time of these events, Mr. Rancourt was a 32-year- old man, and A.S. was a 19-year-old freshman at Florida Southern College. Mr. Rancourt, in offering proof of actual innocence, testified on his own behalf that the sexual encounter that occurred between him and A.S. was consensual. Mr. Rancourt's testimony on December 8, 2011, was consistent with the testimony that he had provided in his two criminal trials. Transcripts of Mr. Rancourt's prior testimony at the criminal proceedings were admitted into evidence. Mr. Rancourt's testimony at the hearing concerning his meeting A.S. and the subsequent sexual encounter was not believable. Specifically, the undersigned did not find Mr. Rancourt's description of how a young woman, whom he had never spoken too, would at the closing of the bar grab him at the door as patrons attempted to leave the bar, and give him a "deep french kiss." Further, it was incredulous that after asking him for a ride back to her dorm room that A.S., while in the back seat of the car, would engage in a series of intimate gestures towards himself and his best friend, Mr. McLean. Finally, it was not credible that A.S. and Mr. Rancourt engaged in a consensual sexual encounter as described by Mr. Rancourt on the lawn of a home off a dark street. The conclusion that Mr. Rancourt's description of the events is not credible is further bolstered by the testimony showing A.S.'s actions immediately after the sexual encounter, and Mr. Rancourt's untruthful responses to the police investigation following the events. Mr. Rancourt also offered Mr. McLean, who testified that he witnessed A.S. acting as a "willing participant" in the sexual encounter with Mr. Rancourt. Further, Mr. McLean offered testimony that he did not engage in any sexual relations with A.S., and that he only pled to the sexual battery charge in order to avoid the risk of receiving another lengthy sentence. Next, Mr. Rancourt brought forward the testimony of Brandon Perron (Mr. Perron), a private investigator, and introduced into evidence copies of Mr. Perron's investigative reports. The record shows that Mr. Perron prepared these reports as part of Mr. Rancourt's post-conviction efforts. The reports and Mr. Perron's testimony show that he identified many factual issues regarding Mr. Rancourt's convictions. Specifically, Mr. Perron raised issues concerning discrepancies in A.S.'s statements, testimony, and her motivations to lie concerning the events of October 31, 1996; discrepancies in witnesses' statements to the police investigator and testimony; poor and prejudicial police investigative techniques that overlooked potentially exonerating evidence showing that the sexual encounter was consensual; and defense counsel's failure to conduct an adequate investigation into potential witnesses. Although Mr. Perron was a persuasive witness for showing potential problems with the State's criminal case against Mr. Rancourt, Mr. Perron's testimony did not establish Mr. Rancourt's actual innocence. Mr. Rancourt's final witness was his aunt, Barbara Hoffman (Ms. Hoffman). In October 1996, Mr. Rancourt and Mr. McLean were living with Ms. Hoffman while they sought employment. Ms. Hoffman's testimony concerned Mr. Rancourt's character and her opinion that he was not capable of committing a crime. Further, she testified about the day that law enforcement officers went to her home to ask Mr. Rancourt and Mr. McLean to come in for questioning. She testified that the detective investigating the events had prejudged Mr. Rancourt to be guilty of rape. The purpose of this testimony appeared to show that statements given by Mr. Rancourt and Mr. McLean to the police may not have been voluntary. It is noteworthy that neither Mr. Rancourt nor Mr. McLean was arrested; thus, the questioning was non-custodial. Moreover, Ms. Hoffman's testimony was marginally relevant in that it did not bring forward any fact showing that Mr. Rancourt was actually innocent of the sexual battery and kidnapping charges. The State introduced evidence showing that the sexual encounter was not consensual. A.S.'s trial testimony shows that she consistently testified that the sexual encounter was not consensual. In addition to A.S.'s trial testimony, the State introduced trial testimony of Angie Wren (Ms. Wren) and Issac McKeithan (Mr. McKeithan). The criminal trial transcript shows that Ms. Wren and Mr. McKeithan drove upon A.S. shortly after the event and saw a car quickly drive away from the area where A.S. was standing. Ms. Wren testified that A.S. was hysterical and crying, and "she just didn't look like she had been through anything good, that's for sure." A.S. reported to Ms. Wren and Mr. McKeithan that she had been raped. Ms. Wren and Mr. McKeithan drove A.S. to the Lakeland Police Department immediately, and the attack was reported. This testimony shows that A.S. contended that she had been raped moments after the sexual encounter. Further, a review of the criminal proceedings shows that the State brought forward medical testimony showing bruises on A.S.'s arms. A.S. had testified that, before the attack, she did not have the bruises. Finally, the criminal trial transcripts and testimony given at the December 8 through 9, 2011, hearing showed that Mr. Rancourt and Mr. McLean had provided false statements, and changed the story given to the officer conducting the investigation. Specifically, the trial transcripts, and Mr. Rancourt's testimony on December 8, 2011, showed that he told the investigator at first that he did not engage in sexual relations with A.S., then changed his story to claim that he and A.S. had sex in the vehicle, and then changed his story, yet again, to state that he and A.S. had consensual sex on the front yard of a home off a dark street. During his testimony on December 8, 2011, Mr. Rancourt acknowledged that the statements he gave about not having sex with A.S. and then having sex in the vehicle were false. Similarly, Mr. McLean, when asked if he and Mr. Rancourt had sex, informed the officer "no." Mr. McLean testified that he answered that way because he contended that he had not had sex with A.S. This parsing of words was not credible. The undersigned found these acknowledged false statements, made at the time of the investigation, persuasive evidence that Mr. Rancourt's explanation of the night was not credible.
Recommendation Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Mr. Rancourt has failed to meet his burden of proving actual innocence by clear and convincing evidence, denying Mr. Rancourt's claim for compensation, and dismissing his Petition. DONE AND ENTERED this 14th day of March, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 14th day of March, 2012.
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 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
The Issue The issue presented by this case is whether the Respondent, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Frank J. Lugo, Jr., through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977). The parties have submitted Proposed Recommended Orders. Those proposed findings not included in this Recommended Order were not supported by competent and substantial evidence or were considered immaterial to the results reached.
Findings Of Fact On January 19, 1981, the Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Department requested the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes, to consider the matters set forth in the Petition. At the final hearing the Petitioner testified on his own behalf. Dr. Robert Berland, Ph.D., a psychologist and the Director of the Behavior Disorders Unit in the Forensic Service at the Florida State Hospital testified for the Respondent. Respondent's Exhibit 1, a composite exhibit consisting of a clinical summary, intradepartmental staffing report and an abstract of a staff conference, was admitted as evidence. At all times pertinent to this proceeding the Petitioner has been in the custody of the Respondent pursuant to an order of the Circuit Court of Pinellas County, Florida and Chapter 917, Florida Statutes (1977). From August 6, 1979 through the present, Petitioner has resided in the Florida State Hospital in Chattahoochee, Florida, where he has undergone treatment in a hospital program for mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. The success rate within the program is very low due to patients' long established behavior patterns. Although the Petitioner has progressed during the course of his treatment, the Department has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is participating and has also concluded that similar programs for sex offenders within the state do not offer viable treatment alteratives. The primary treatment modality for mentally disordered sex offenders at Florida State Hospital is group therapy. The Petitioner has participated in group therapy sessions during his current hospitalization, but no significant change in his behavior has occurred. Dr. Berland has diagnosed his present condition as (1) exhibitionism, (2) voyeurism, (3) other sexual deviations, (4) mixed substance abuse, (5) psychogenic pain disorder, (6) anti-social personality, (7) passive-aggressive personality with contained hostility, and (8) narcissism. Exhibitionism has been the Petitioner's primary problem with his first arrest for indecent exposure occurring in 1971. Group and milieu therapy are the basic treatments available in the sex offender program at Florida State Hospital. Milieu therapy consists of interacting with people who share similar problems. Petitioner has participated in both therapies since his admission to the hospital. From August, 1979 to January, 1980, Mr. Lugo regularly attended group therapy and participated in the group. He developed a degree of insight into his condition. During this period, the group was led by Sam Cuningham, a psychologist, and met for one hour each week. From February, 1980, to August, 1980, Petitioner regularly attended group but did not actively participate. Dr. Berland became head of the group and its size increased from five to ten members. When Mr. Lugo participated, his discussions centered on other patients' problems rather than his own. Although there is a benefit in listening and discussing other patients problems such benefit is not substantial when coupled with a denial of a patient's own problem as was the case with Mr. Lugo. One of the reasons given by Mr. Lugo for not participating was a CERonic sore throat. After Dr. Berland had the Petitioner examined by a physician who could find no medical basis for the problem, it was concluded by Dr. Berland that the disorder was psychogenic. During this period the Petitioner joined another group started by psychology interns at Florida State University which offered individual counseling in addition to group therapy. This group lasted for approximately two months. On August 6, 1980, Mr. Lugo was presented for staffing by his treatment team. He was informed that his group participation was inadequate and given three areas where improvements was necessary: (1) analysis of and solution to sexual problems, (2) anti-social, manipulative and rule-violating behavior, and (3) hostility in interactions with others. During the period September, 1980, to October, 1980, the Petitioner's behavior did not significantly change. Although he did attempt to cooperate by complaining less about his physical problems and changing his manner of dress, Petitioner's participation during group therapy remained superficial. After being informed by staff that his group participation remained inadequate, Mr. Lugo began writing summaries of his group experiences. He continued to write summaries after being informed by the staff that he should discuss experiences with the group rather than write summaries. During September to October, 1980, Mr. Lugo's attendance at group therapy was erratic. On October 29, 1980, the treatment team met and after reviewing the Petitioner's case, concluded that Mr. Lugo continued to meet the criteria of a sex offender under Chapter 917, Florida Statutes, and that he was not amenable to further treatment in the behavior disorder unit. Having exhausted Florida State Hospital's treatment capabilities, the staff recommended that the patient be presented to an Intra-Departmental Screening Committee to determine if further treatment capabilities existed within any other sex offender treatment programs in the Department. On December 24, 1980, the Committee considered Mr. Lugo's case and recommended that he be returned to the appropriate Circuit Court as a treatment failure. Petitioner has progressed in areas outside of group therapy including ward activities and vocational training. However, his involvement in these areas is insufficient to cause a meaningful alteration of Petitioner's aberrant behavior. Although individual therapy is available for patients such as the Petitioner, it was not attempted in this case because Mr. Lugo never achieved a level of progress necessary to make such therapy feasible. The Petitioner desires to remain in the program at Florida State Hospital and be given individual therapy and assignment to a different treatment team.
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 Frank J. Lugo, Jr., and that the said Frank J. Lugo, Jr. be returned to the committing court for further disposition. DONE and ENTERED this 26th day of June, 1981, in Tallahassee, Florida. SHARYN L. SMITH, 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 26th day of June, 1981. COPIES FURNISHED: Steven L. Seliger, Esquire Post Office Box 324 Quincy, Florida 32351 Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, Charles Peavy, 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. This Petition was received by the Division of Administrative Hearings on July 15, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. That Department has requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The matter was originally set for hearing on August 14, 1981, and upon motion of the Petitioner, was reestablished for hearing on September 1, 1981. The hearing was conducted on the aforementioned date. In the course of the final hearing, the Petitioner offered no testimony or presentation in his own behalf. Respondent called as witnesses Robert Alcorn, Clinical Director for the mentally Disordered Sex Offender Program at Florida State Hospital Mike Pomeroy, Petitioner's attending clinical psychologist at Florida State Hospital Connie Smith, Petitioner's social worker at Florida State Hospital and Dr. M. M. Estes, Forensic Unit Psychiatrist at Florida State Hospital. Respondent's Exhibits 1 and 2 were admitted into evidence. At all times pertinent to this proceeding, Petitioner has been in the custody of the Respondent in keeping with orders of court and the authority of Chapter 917, Florida Statutes (1977). During that time the Petitioner has resided in the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in a hospital program for the benefit for mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the Petitioner has been subjected to a full range of treatment opportunities he has made no significant progress in the course of his stay, due to a persistent lack of motivation on his part. In the face of this circumstance, the Respondent has made a preliminary determination that it has exhausted all pertinent 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. Thus, the petitioner has requested the formal hearing which is the subject of this Recommended Order. The history of this case reveals that the Petitioner was originally admitted into the program from a commitment order of the court after being charged with the offense of involuntary sexual battery, that commitment coming in January, 1979. The Petitioner having failed to demonstrate reasonable progress, a decision was made in March, 1980, through a staffing conference to the effect that the hospital had exhausted treatment in the facility Florida State Hospital. Likewise, in a departmental screening conducted by the various clinical directors of the several sex offender programs in the State of Florida, held in May, 1980, it was concluded that the Petitioner should be returned to court for reason of exhaustion of treatment. On June 4, 1980, the Petitioner was recommitted to the sex offender program by order of court and the Florida State Hospital reinstituted its treatment of the Petitioner. In January, 1981, a staffing was held on the Petitioner and a decision was reached that the hospital had exhausted treatment for the benefit of the patient. This decision was followed by a decision in February, 1981, by the interdepartmental screening committee of several sex offender programs within the State, to the effect that the overall system had exhausted treatment. Following the February decision, counsel for the Petitioner requested a formal hearing; however, before that hearing could be convened, the Petitioner determined that he did not wish the hearing and was returned to court in April, 1981. The Petitioner was then returned to the Florida State Hospital by order of court on May 22, 1981, and has remained in the hospital since that time. At present, the Petitioner's underlying condition is diagnosed as that of a person with an antisocial personality disorder, severe, with a diagnostic profile which places him in the category of sex offender within the meaning of Chapter 917, Florida Statutes (1979). Contributing to this diagnostic impression is a severe case of substance abuse related to alcohol and substitutes for that chemical, together with a dependence on the psychotrogic medication Mellaril. While the patient has been involved in the program at Florida State Hospital, and has been exposed to the primary therapy of that hospital, namely group therapy, with certain adjunctive therapy and has been treated by numerous therapists, there has been no discernible success. The principal reason for the failure of the patient Peavy has been his lack of motivation, which is an essential prerequisite to success in the program. In this respect, in the course of his stay in the program, the Petitioner has not demonstrated an interest in making progress in the sex offender program. Mike Pomeroy, his primary therapist from May, 1980, until early 1981, through his testimony identified some of the features of the Petitioner's condition. As established by Pomeroy, the main problem with the Petitioner is that difficulty with substance abuse related herein, with the sex offense problem being an underlying feature of that difficulty. In this area, the Petitioner has been willing to discuss sex offenses to include the one for which he had been placed in the program and the others, but only in a superficial way. Pomeroy discovered that the substance abuse of Mellaril dates from approximately the 17th birthday of the patient, who was born on October 19, 1952. During the time of Pomeroy's involvement as therapist it has been necessary isolate the patient from any substance which might give him a "high." The patient has been known on five or six occasions to drink floor wax, 409 cleaner, etc., and at other times the staff has been suspicious that the patient has consumed this type material, in view of the patient's demeanor. While Pomeroy was the primary therapist, the Petitioner used the psychotropic medication Mellaril to maintain a mood, as opposed to a treatment for traditional thought disorders. Attempts to cut back on the amount of the Mellaril dosage have led to hostile episodes in which the patient made threats to hurt other persons. On one occasion, in an attempt to possibly have the patient relocated in a sex offender program in the South Florida State Hospital, the State tried to decrease the Mellaril from the dosage of 600 mgs. per day out of a possible 800 mgs., with 200 mgs. being an average dose. After one or two days, it was determined that the Petitioner was not making an effort to reduce his dependence on the medication Mellaril and it was necessary to isolate the Petitioner due to his behavior. (The Florida State Hospital was unable to effectuate a transfer to the South Florida State Hospital because that latter institution was unwilling to accept a person who had drug dependence, such as that of the Petitioner.) The reason for the isolation in this attempt to wean the Petitioner from the use of Mellaril, was due to confrontations with staff members. Pomeroy has spent more time with this patient than with any other patient in the history of Pomeroy's involvement as a therapist. He finds the Petitioner to be manipulative in playing members of the staff against each other, in the sense of reporting that one staff member has allowed him certain liberties, when in fact that has not proven to be true. The Petitioner, during his stay has agitated other patients in the sex offender program by his hyperactivity and constant attempts to borrow cigarettes from those patients and to do so in an intimidating way, and the Petitioner has even on one occasion thrown a chair at a patient. The Petitioner's attendance in the group therapy sessions which are the most vital phase of the treatment process has been irregular. When he has attended, his discussion in the course of the session has been of matters unrelated to the treatment program. Petitioner has also failed to attend adjunctive therapy sessions, notwithstanding the fact that he was allowed his choice of sessions to attend. In particular, he was allowed to attend the alcoholic rehabilitation program within the hospital and his attendance in those sessions was poor. This performance on the part of the patient has led therapist Pomeroy to comment that the Petitioner has done less to participate in the programs than any patient Pomeroy has known. This participation is essential especially for those persons who are suffering from substance abuse. The Petitioner has been made aware of the consequences of not participating in the sense of his possible return to court and court actions which might lead to further incarceration and more importantly of long term problems which the Petitioner would have in life should he fail to come to grips with his problems. Nonetheless, progress is not forthcoming, and the sexual problem which the Petitioner has is still in evidence, together with the substance abuse. The Florida State Hospital staff has also consulted professionals outside the sex offender program who might be able to deal with the problem with substance abuse however, the attempts have met with no success, in that the outside professionals have indicated that no progress will be made without proper motivation. In particular, the use of Antabuse as a deterrent to alcohol consumption would not be appropriate in view of the fact that this substance is dangerous if the patient is not well motivated. Other observations which are accepted, as made by therapist Pomeroy, establish that the Petitioner has only spoken about himself in one group session that the Petitioner continues to find it difficult to talk about things of a personal nature and that the Petitioner has no ability to get close to people as a means of breaking down the barriers necessary to come to some understanding of the myriad problems confronting him. In summary, from the point of view of Pomeroy and as accepted, the sex offender program has been exhausted in dealing with the Petitioner s circumstance and although the Petitioner continues to meet the definition of disordered sex offender, the placement of Petitioner in the programs administered by Respondent is not only inappropriate but is counterproductive. On the question of alternative placement, Pomeroy is of the persuasion that an institutional setting such as the prison system would allow the Petitioner to "get along about the same as here," meaning the Florida State Hospital. Connie Smith, a social worker who dealt with the Petitioner between January, 1981, and April, 1981, found his participation in group therapy, out of twenty (20) sessions, to be one of seven (7) appearances, within which he only stayed fifteen (15) minutes on two (2) occasions. Then he attended, he sat away from the group and offered no active participation. (At the time that he was attending the sessions, the Petitioner knew that a decision had been made on exhaustion of treatment and he expressed the desire to leave the hospital setting.) Staff psychiatrist, Dr. M. M. Estes, in the course of his testimony, concurred with the diagnostic impression of antisocial personality disorder, severe. He finds that the Petitioner gets along well with other persons as long as he is having his way. He finds that the Petitioner is intolerant of any regimented style of life, such as the hospital setting. In speaking to the issue of the use of Mellaril, the amount of 600 mgs. is a high amount and through the process of the De utilization of that substance, over the years, the patient now suffers from a side effect known as tardive dyskinesia. This condition and its appearance is close to that of Huntingtons-Cohrea. In this patient, the condition has manifested itself as an involuntary movement of the tongue and other muscles. Peavy has been advised not to use this medication as a mild palliative, this advice coming from Dr. Estes. As stated before, attempts have been made to have Peavy withdraw from the use of this medication, but when this has been attempted, Peavy has threatened violance in the sense of indicating his willingness to "tear up the place." Nonetheless, Dr. Estes is of the persuasion that the Petitioner's neurological condition as described will continue to get worse if he persists in the use of the psychotropic medication. Dr. Estes' observations established that the patient has the mental capacity to recognize what he is doing and he is found to be in touch with reality and in touch with time and knowledgeable of right and wrong, in the theoretical sense. Nevertheless, the Petitioner has never had to suffer the consequences of his criminal acts and remains unconvinced of those consequences. According to Dr. Estes and as established through his testimony, the patient is not benefiting from the sex offender program of the Department of Health and Rehabilitative Services and there is no real likelihood of improving in his condition through involvement in that program. Moreover, continued participation will only hinder the patient. Dr. Estes identified the fact that drug dependence does not impair the ability to make progress in the program, but the nature of the underlying diagnosis of antisocial personality is one which calls for external control and the need to learn conformity and the fact that the conformity is not threatening. The patient has not achieved those improvements in that he becomes frustrated and exasperated easily, as established by Dr. Estes. At this time, there is no sign of organic degeneration in the patient as a result of substance abuse, but that potential exists, per Dr. Estes. The report of Dr. Paul Deitchman, dated December 1980, was also admitted. Dr. Deitchman is a clinical psychologist, who examined the Petitioner upon request of Petitioner's counsel. In his report, Dr. Deitchman is supportive of the position of the Respondent on the question of returning the Petitioner to court for reason of exhaustion of treatment.
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 Charles Peavy, and that said Charles Peavy be returned to the committing court for further disposition. DONE and ENTERED this 28th day of September, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 28th day of September, 1981. COPIES FURNISHED: Ken Driggs, Esquire Assistant Public Defender Post Office Box 671 Tallahassee, Florida 32302 Ted Mack, Esquire Florida State Hospital Chattahoochee, Florida 32324 William Ploss, Esquire Assistant Public Defender 1351 Northwest 12th Street Miami, Florida 33125
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.
Findings Of Fact At all times relevant hereto Stanley Mark Dratler, M.D., was licensed by the Florida Board of Medical Examiners. He completed a four-year residency in obstetrics and gynecology before opening an office in Dade City, Florida, in 1981. He has taken the written portion of the examination for Board certification but, at the time of the hearing, was not aware of the result of that examination. Patient A visited Respondent July 22, 1982, for a Pap smear which was subsequently followed by a biopsy and hysterectomy on August 18, 1982. Following her release from the hospital, A reported to Respondent's office on August 30, 1982, for her first office checkup following surgery. At this visit Respondent performed a complete physical examination including a pelvic examination, asked A questions regarding her sex life at home, and told her he could show her things that would help her sex life. While examining her and discussing her sex life, Respondent applied a Q-tip to various areas outside the vagina and asked A to describe the sensations created thereby. Some two weeks later A developed back pains, called Respondent's office, and was told to come in the next day. Again, Respondent did a complete examination, including pelvic, used a Q-tip swab to stimulate areas outside the vagina, and told A she needed to know how to masturbate herself and not rely solely upon her husband. During this examination, conducted in an examining room containing only A and Respondent, Respondent masturbated A and had her masturbate herself. When A asked about her back, Respondent told her there was nothing wrong with her back. A denied she ever told Respondent she felt numb between her legs. In Respondent's testimony he confirmed the August 30 visit to his office by A but claimed she complained of feeling numb between the legs. When he put her in the stirrups for an examination, he found nothing wrong externally and performed a psycho-sexual examination which involved the stimulating of sensitive areas around the vagina with a cotton swab. He denies he ever masturbated A; that at her final visit on October 8, 1982, she again complained of numbness between her legs; his examination, which included the touching of sensitive areas, revealed nothing wrong; and when they returned to his office after the examination she made advances toward him. When he told A he treated her like all other patients, she got mad and stormed out of his office. In Exhibit 3, the patient records of A, the October 8 entry indicated only that A came in complaining of some swelling of the lower extremities, and no problem with that was foreseen. That entry states A would not need to return for another visit before six months unless some other problem developed. In view of the significant differences between the medical record and Respondent's testimony, the testimony of A is the more credible. Patient E visited Respondent's office September 29, 1982, complaining of bleeding. During this visit a Pap smear was taken, as was a sexual history of the patient. During the pelvic examination Respondent talked to E of areas to stimulate for sexual arousal. With his finger in her vagina, he started to masturbate her and told her she needed to have more orgasms. E acknowledges telling Respondent she had intercourse five or six time per week and was anxious to get pregnant. She does not recall telling Respondent she reached climax only once per week, that her last climax was one week before the visit, or that she experienced pain on deep thrusting. Following this examination, E was given an appointment to return in two weeks, which she cancelled and did not again return to Respondent's office. Respondent acknowledges that E visited his office as alleged and that he gave her a complete examination including a pelvic exam. He contends the questions regarding her sex history were necessary to ascertain any problems inhibiting E getting pregnant. He denies masturbating E or telling her that masturbation, stimulation, or sexually-oriented conversations were a necessary part of gynecological treatment. Patient B first visited Respondent November 4, 1982, complaining of a rash in the vaginal area. Respondent obtained a sexual history of B, who at the time of this visit was 16 years old. This revealed B's first sexual encounter occurred at age 12, that she had never experienced orgasm although she had been sexually active. During the pelvic examination Respondent applied a cotton swab to various areas around B's vagina and asked her if it felt good here or there. B was given a prescription for the rash and told to return a week later. When she returned on November 8, B again was undressed for an examination. Respondent performed what he described as a psycho- sexual examination on B during which he massaged her breasts, stimulated areas outside the vagina with a cotton swab, and inserted fingers in B's vagina. While this stimulation was going on, B had an orgasm. B had experienced some side effects with the first rash medication and on the second visit Respondent prescribed a different medicine. B returned for a third visit on November 22, 1982, which she testified was for blood tests only. However, there is some disparity in the testimony and it is more likely that the stimulation and orgasm occurred during the visit on November 22 rather than on November 8. On her final visit, December 6, 1982, B was again examined and testified Respondent fondled her breasts while masturbating her. At this time she had commenced her menstrual cycle but Respondent told her that was all right as he could still examine her. At this final visit Respondent prescribed birth control pills for B. Respondent acknowledges that B had visited his office four times as she testified and that he gave her the psycho- sexual examination because she had engaged in sex for four years without enjoying it. His questions regarding her sex life was to find out if the rash was related to a sexually transmitted disease. Respondent denies that he fondled B's breasts or masturbated her. Exhibit 4, the medical history of B, confirms the four visits but contains no reference to the psycho-sexual examination Respondent performed. A return visit scheduled for December 22, 1982, was never kept by B. The testimony of B is more credible than that of Respondent respecting his actions with B while she was being examined. Patricia Cherry worked in Respondent's office as a medical assistant and secretary from July 1982 until January 1983 when she quit to work at Humana Hospital in Dade City. Respondent asked Cherry if she would teach some of his patients how to masturbate themselves. She refused by stating she was not interested. Cherry was told by Respondent that he was conducting a survey on human sexuality and each patient would be a part of that survey. On one occasion Respondent asked Cherry to come in one weekend and he would give her Sodium Pentothal. She declined this also. On one occasion she witnessed Respondent administer intravenously a drug to a patient which Respondent said was Sodium Pentothal. Respondent told Cherry that a patient was coming in to be given Sodium Pentothal and had requested Cherry be present while the drug was administered. The patient came in as scheduled and was administered something intravenously while undressed from the waist down. After the IV started, the patient became unconscious on two occasions. During one period while the patient was awake Respondent asked the patient what she thought about oral sex. During one period the patient was unconscious Respondent asked Cherry if she would sexually stimulate the patient. Cherry said no. Once while a drug salesman was in the office Cherry asked Respondent if he would give her some of the new medicine the salesman was offering for pimples. Respondent told her she should have a pelvic examination to find out if she was through puberty because use of the drug by one not through puberty could cause undesirable side effects. Cherry was 22 to 23 years old at the time, had experienced her menstrual cycle for several years and she declined to be examined. By definition, girls are through puberty when they commence their menstrual cycles. Petitioner's two expert witnesses opined that hands-on masturbation of a patient constitutes treatment below generally prevailing standards; constitutes use of fraud, intimidation, or undue influence on a patient; constitutes exercising influence within a patient-physician relationship for purposes of engaging the patient in sexual activity; and constitutes deceptive, untrue or fraudulent representations in the practice of medicine, or employing a trick or scheme which fails to conform to the minimum acceptable standards of the profession. Also, the use of a swab around the genitalia of a female patient to sexually arouse the patient does not conform to the generally prevailing standards of treatment in the medical community. Nor does the use of Sodium Pentothal on a patient in an out-patient setting comply with the prevailing standards. Sodium Pentothal is a drug not normally administered in an out-patient setting where emergency backup procedures are unavailable. Very few gynecologists are sufficiently trained in the use of this drug to safely administer such a drug to a patient and particularly so in an out-patient setting. Research is normally done in an approved academic environment and not by individual practitioners. Respondent denied that he was engaged in the research he told Ms. Cherry he was conducting. After hearing the testimony of the witnesses, Dr. J. Kell Williams, a Board-certified gynecologist and faculty member at the University of South Florida, opined that Respondent's treatment of the three patients who testified was below acceptable medical standards, constituted use of physician- patient relationships for improper purposes, constituted fraud and deception in the practice of medicine and the employment of a trick or scheme, which fails to comply with the minimum acceptable standards of the medical profession. Patricia Cherry was never a patient of Respondent. As an employee she was requested to instruct female patients in masturbation, which she declined to do. Respondent also suggested to Cherry that she submit to Sodium Pentothal, which she also declined. Likewise, she declined to allow Respondent to do a complete examination which Respondent insisted was necessary before prescribing medication for her acne. Although Cherry was not a patient, the representations regarding a pelvic examination prior to prescribing medication for acne constitutes deceptive, untrue and fraudulent representations in the practice of medicine and fraudulent solicitation of a patient. Absent a medical reason to conduct a pelvic examination, Respondent's insisting on doing so prior to treatment of acne constitutes an attempt to engage the patient in sexual activity.
The Issue This order concerns the Respondent's motion to dismiss this action with prejudice premised upon lack of jurisdiction of this forum specifically, it is alleged that the Petitioner does not have standing to bring an action under Section 120.57, Florida Statutes, in view of the fact that he is not considered to be a party within the meaning of Subsection 120.52(10)(d) Florida Statutes. The Respondent also asserts that the Petitioner has no legally recognizable substantial interest to be determined in this action, as would be required to establish standing to proceed under Section 120.57, Florida Statutes.
Findings Of Fact On April 17, 1980, the Petitioner, David W. Cochran, was convicted and sentenced for the offense of lewd assault on a child, a violation of Section 800.04, Florida Statutes. This conviction and sentence was entered by the Circuit Court, Criminal Division, Polk County, Florida, in Case No. CF79-1761. The Petitioner was given a ten year sentence in the State prison for that offense, with the recommendation that the Petitioner be treated as a mentally disordered sex offender. In keeping with the terms and conditions of Section 917.012, Florida Statutes (1979), the Petitioner was evaluated by the State of Florida, Department of Corrections and the State of Florida, Department of Health and Rehabilitative Services, and was placed in the mentally disordered sex offender program at the Florida State Hospital, Chattahoochee, Florida, by process of transfer from his confinement in the prison to the stated placement as an offender. At the time of the motion hearing in this cause, the Petitioner was residing at Florida State Hospital, Chattahoochee, Florida, in the sex offender program, awaiting transport by the State of Florida, Department of Corrections, back to an appropriate corrections facility, it having been determined by the State of Florida, Department of Health and Rehabilitative Services that it had exhausted all appropriate treatment for the said offender. The motion to dismiss had been occasioned in face of a petition for administrative determination which had been filed by the Petitioner with the Respondent and referred by the Respondent to the Division of Administrative Hearings for disposition. That petition calls for a determination on the question of exhaustion of treatment of the Petitioner in the aforementioned sex offender program and as stated in the Issues provision of this Recommended Order, the Respondent took the position that the hearing which the Petitioner requested pursuant to Subsection 120.57(1), Florida Statutes, could not be granted to the Petitioner for the reasons set forth in the issues statement.
The Issue Whether Respondent violated Sections 491.009(2)(k), and 491.009(2)(s), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all times material, Respondent held a license as a Mental Health Counselor in the State of Florida. Petitioner, through the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, is the state agency that licenses and has regulatory jurisdiction of Clinical Social Workers. Respondent was employed as a counselor by the ACT Corporation (ACT) at the time of the incident that is the basis for this case. ACT operates a residential psychiatric treatment facility at which Respondent was employed. T.J. was a patient in the ACT facility from December 26, 1996 until mid-February, 1997. While at ACT, T.J. was diagnosed with bipolar disorder. T.J. had both group sessions and private sessions with Respondent while she was an in-patient at ACT. The private sessions took place in Respondent's office. Respondent and T.J. talked on the telephone, and he brought her small items, like lip-gloss and gum, that she was not allowed to have. T.J. alleges that the sessions became sexual on or about the second private therapy session. She alleges sexual contact during the in-patient sessions involved kissing and touching, that was consensual. T.J. states that she trusted Respondent and was in love with him. T.J. alleges this sexual relationship with Respondent continued after T.J. left ACT in February. There was never a therapeutic relationship between Respondent and T.J. after T.J. left the hospital. There was never any discussion of a fee arrangement, and no fees were ever paid for counseling sessions. Two days after T.J. left ACT, Respondent picked her up from her home and took her to Sapporo's for dinner and drinks. Following dinner, they went to a bar called the Barracks. T.J. alleges that when Respondent brought T.J. home that night they engaged in oral sex and intercourse. A few days later, T.J. and Respondent met for dinner at the Olive Garden. At the Olive Garden they had dinner and drinks. T.J. alleges that following dinner, Respondent walked T.J. to the van she was driving, they kissed and then had sexual intercourse in the van. On Valentine's Day Respondent came to T.J.'s house for dinner. T.J. lived with her parents. He brought her flowers and a bottle of wine for her parents. A card accompanied the flowers that said: "Sorry! No candy. Hope this will do instead." The envelope said "Traci." Following dinner, they went out to the Flagler Tavern. T.J. alleges that when they returned to T.J.'s house Respondent stayed until early morning and they had oral sex and intercourse. Respondent denies any sexual intimacy with T.J., and asserts that their relationship was one of patient-therapist even after she left ACT. T.J.’s testimony was presented by deposition. There was no opportunity to observe her. She was diagnosed contemporaneously with the events to which she testified with a condition that makes her credibility difficult to assess. Respondent testified at hearing denying the sexual relationship with T.J. I do not find the deposition testimony of T.J. credible regarding the allegations of sexual relations with Respondent. I find that there was a relationship between Respondent and T.J. because Respondent verifies the social contacts T.J. reported. Respondent did not perform any counseling with T.J. on the various occasions when they went to the bars and restaurants. This relationship was inconsistent with existing standards of professional conduct, as testified to by experts at hearing and exemplified in the code of ethics which ACT had. T.J. continued therapy as an outpatient with another ACT therapist for a short time after she was released from the hospital. During one of these sessions, T.J. told the outpatient therapist about her social/personal relationship with Respondent. Shortly thereafter, ACT fired Respondent for violation of ACT's code of ethics. This code prohibited personal relationships between patients and employees of the facility. Respondent had his Florida Teaching Certificate permanently revoked when he worked as a counselor at Deland Senior High School. He was charged with sexual misconduct with a student, and did not contest the charges formally. Psychotherapy is dependent upon a personal relationship between the patient and the therapist. Patients often develop emotional relationships or attachments to counselors or therapists because of the creation of an environment of trust. It is important that therapist recognize that this relationship is an outgrowth of treatment, and not to take advantage of the patient. Respondent had a relationship with T.J. that is contrary to the professional standards of practice, notwithstanding the allegations of sexual misconduct. His professional relationship should have been confined to the clinical setting, and the social activities in which he engaged with T.J. were inappropriate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a final order adopting this order and revoking Respondent’s license and assessing a fine of $1,000 against him pursuant to Rule 64B4- 10.002 formerly 59P-5.001, Florida Administrative Code, the Board's penalty guidelines. DONE AND ENTERED this 17th day of May, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2001. COPIES FURNISHED: Ismael Lopez 13691 Gavina Avenue, No. 447 Sylmar, California 91342 Mary Denise O'Brien, Esquire Department of Health 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
