The Issue Is the Respondent unable to practice medicine with reasonable skill and safety to patients by reason of illness or as a result of any mental or physical condition? If yes, what is the appropriate disciplinary response to that impediment?
Findings Of Fact The Petitioner, in accordance with Chapters 20, 455, and 458, Florida Statutes, regulates the practice of physician's assistants in Florida. The Respondent practices as a physician's assistant in Florida. His license number is PA002355. PRESENT EMPLOYMENT At present, the Respondent works as a physician's assistant for Michael Dulaney, M.D. Dr. Dulaney is a board- certified family practitioner. The Respondent has worked for Dr. Dulaney for approximately one year. Dr. Dulaney has been satisfied with the Respondent's work. Dr. Dulaney has had no reports of problems with the Respondent's conduct reported by patients or other office staff. In particular, Dr. Dulaney does not have any specific knowledge concerning complaints made about Respondent related to sexual misconduct from the period February, 1992 forward. At present, the Respondent's practice in Dr. Dulaney's office is limited to treatment of adults; however, Dr. Dulaney would not be opposed to having the Respondent treat minors and adults. Dr. Dulaney is aware of the reasons for the present restrictions on the Respondent's practice, limited to care of adults. These limits are as had been imposed by the Physicians Recovery Network (PRN) based upon the Respondent's mental health status. The controls that are in place by Dr. Dulaney to limit the Respondent's present practice to adults include an inquiry by office staff when an appointment is made by a patient as to the age of the patient and another check when the patient arrives for the appointment as to the patient's age. The Respondent is also required to check the patient's age before rendering care. The protocol followed by Dr. Dulaney in his practice is to the effect that no female patient is examined by a doctor or a physician's assistant without a second staff member being in attendance. The second staff member would be a female. Should the Respondent not be allowed to provide care to minors in the future, Dr. Dulaney would allow the Respondent to remain as a physician's assistant and treat adults only. HISTORY On or about June 18, 1992, following allegations regarding custodial sexual battery of his 14-year-old stepdaughter, K.B., the Respondent entered into a monitoring contract with the PRN. The Respondent had also sexually abused his six or seven-year-old daughter from his first marriage. The Respondent was sexually abused by male and female siblings as a child. Raymond Pomm, M.D. specializes in general psychiatry, as well as addiction psychiatry. Among other duties, Dr. Pomm is a staff psychiatrist for the PRN. While under the terms of the monitoring contract in connection with the State of Florida Department of Business and Professional Regulation's Impaired Practitioner's Program, Dr. Pomm consulted the Respondent's physician employers on occasion to determine the Respondent's conduct as a physician's assistant. Dr. Pomm never received a report from the employers that the Respondent was acting inappropriately. On these occasions, the employers would indicate that they were satisfied with the Respondent' s work. When the Respondent signed the monitoring contract with the PRN, he agreed not to see patients under 18 years of age; to have a supervising physician report to the PRN on a quarterly basis regarding his behavior. The Respondent's supervising physician was responsible to make sure that patient information forms were handed out to patients to allow the patients to give immediate feedback concerning their perception of the Respondent's behavior. The supervising physician was to review 10 percent of the Respondent's charts on a quarterly basis. The Respondent was to receive ongoing therapy from John Vallely, Ph.D., a psychologist. On December 28, 1993, Dr. Goetz, the Director of the PRN, wrote to the Secretary of the Department of Business and Professional Regulation to advise the Secretary that Dr. Goetz was convinced that the Respondent's impairment seriously effected the public health, safety and welfare. This was followed by action by the State of Florida, Department of Business and Professional Regulation, Board of Medicine, to bring the Administrative Complaint, under Case No. 93-07340, charging the Respondent with being unable to practice his profession as a physician's assistant with reasonable skill and safety to patients based upon his illness and mental status. The Administrative Complaint makes reference to the opinion of Dr. Vallely. The opinion of Dr. Vallely which promoted the complaint was that the Respondent carried an Axis II Diagnosis of Mixed Personality Disorder with Obsessive- Compulsive, Anti-Social and Paranoid Features, and that the Respondent would need long-term therapy. The Administrative Complaint makes reference to a recommendation by Dr. Vallely that the Respondent's practice be limited to patients 18 years of age and older. Dr. Vallely did not testify in this proceeding to render his opinion concerning the Respondent's fitness to practice. Testimony on this subject was presented by Barbara A. Stein, M.D., testifying for the Petitioner. She is board-certified in general psychiatry and forensic psychiatry. In opposition to that testimony, the Respondent presented the testimony of Keith R. D'Amato, Ph.D., who is a clinical and forensic psychologist, who treated the Respondent. The Respondent also presented the testimony of Gini Fort, M.A., in counseling psychology, who worked with Dr. D'Amato in treating the Respondent. The Administrative Complaint makes reference to findings by George Bernard, M.D., who examined the Respondent and diagnosed the Respondent as suffering from pedophilia, opposite sex, non-exclusive type. Dr. Bernard did not testify in this proceeding. The Administrative Complaint makes reference to a determination on July 8, 1993, when the Respondent was evaluated by Gene Abel, M.D., of the Behavioral Medicine Institute in Atlanta, Georgia, in which Dr. Abel recommended that the Respondent not be in a medical setting, where the Respondent had proximity to girls under 18 years of age, nor in proximity to his former victim, taken to mean the Respondent's stepdaughter, until the Respondent had further treatment. Dr. Abel did not testify in this proceeding. Finally, the Administrative Complaint makes reference to the reference by Dr. Vallely, on December 16, 1993, in which Dr. Vallely described the Respondent as "a highly dangerous sex offender with pedophilic desires and attractions". The Respondent was also seen by Michael J. Herkov, Ph.D. at the time the Respondent was seen by Dr. Bernard. Dr. Herkov is a psychologist. Dr. Herkov did not testify in this proceeding. The treatment and evaluations performed by Drs. Vallely, Bernard, Herkov and Abel were all in association with the monitoring performed by the PRN. Although the health care providers associated with the Respondent that have been mentioned in the prior paragraph did not testify in this proceeding, their insights assisted Drs. Stein and D'Amato and Ms. Fort in arriving at their opinions concerning the Respondent's condition. Consequently, it is to some advantage to describe the history of treatment and evaluation by those health care providers, notwithstanding the inability to rely upon their independent judgment in determining the Respondent's present ability to render care with reasonable skill and safety. The Respondent began seeing Dr. Vallely in June, 1992 and received treatment off and on until December, 1993. For the benefit of the PRN, Dr. Vallely indicated that the Respondent carried a diagnosis of pedophilia and mixed personality disorder with obsessive- compulsive, antisocial and paranoid features. Dr. Vallely tried to address these conditions. Other attempts were made by the PRN to assist the Respondent. On December 9, 1992, the Respondent saw Drs. Bernard and Herkov. They diagnosed the Respondent as having pedophilia, opposite sex, non-exclusive type. At that time, according to a report by these health care providers, there was no information indicating that the Respondent was being presently sexually inappropriate with patients or any indication that he would engage in that behavior in the future. The recommendation by Drs. Bernard and Herkov was that the Respondent continue to be restricted in seeing children under the age of 18, be they male or female, until such time as the Respondent's treating therapist felt that the restriction was no longer necessary. The Respondent was initially treated by Dr. Vallely through June 18, 1993, at which time, Dr. Vallely suspended the Respondent's care. At that juncture, Dr. Vallely expressed the view to the PRN that the Respondent was manipulating therapy in attempting to gain closer contact with his stepdaughter. At that time, the Respondent expressed the view to the PRN that he did not believe that he was being heard by Dr. Vallely and that Dr. Vallely was overreacting. The Respondent requested another therapist to resolve this conflict. The PRN recommended that another evaluation be performed by a professional. This led to an evaluation by Dr. Abel in Atlanta, Georgia. The evaluation by Dr. Abel took place on July 8, 1993. Dr. Abel is recognized as an expert in the treatment of child sexual abusers. Although Dr. Abel did not arrive at a formal diagnosis, he summarized his belief of the continuing existence of pedophilia on the Respondent's part and a concern about the Respondent's manifest symptoms of arousal in relation to minor females. That concern was addressed through a penile plethysmophgraphy performed on the Respondent, in which the Respondent evidenced arousal to young girls. In his conclusions, Dr. Abel recommended that the Respondent should not be allowed to treat girls under 18 years of age. The Respondent then returned to receive therapy from Dr. Vallely. The Respondent and Dr. Vallely continued to have conflict concerning the Respondent's relationship with his stepdaughter and the Respondent's intention to remarry his ex-wife. Eventually, the Respondent was expelled from the program administered by Dr. Vallely. This expulsion took place on December 16, 1993 and was followed by the correspondence of December 28, 1993 by Dr. Goetz recommending that the Department of Business and Professional Regulation find that the Respondent's condition seriously effected the public's health, safety and welfare. The Respondent was referred to Dr. D'Amato from the State Attorney's Office. This was in association with the case of State of Florida v. Stephen Allan Newbern, in the Circuit Court of Duval County, Florida, Case No. 92-3347CF CR-C, as agreed to by the Respondent's counsel. The day Dr. D'Amato first saw the Respondent was February 10, 1994. The case described was the case in which the Respondent was accused of custodial sexual battery directed to his stepdaughter, K.B. Following the Respondent's decision to remarry his ex-wife, the Respondent was arrested in association with the aforementioned Circuit Court case, in which he had previously been allowed probation to participate in the program conducted by Dr. Vallely. The reason for the Respondent's arrest was premised upon a report by Dr. Vallely concerning the Respondent's decision to remarry his ex-wife. The Circuit Court case was then disposed of on June 24, 1994, in which an order was entered by the court following the Respondent's plea of guilty to a lesser included offense in Count I, lewd and lascivious act. For that plea, the Respondent had his guilt withheld; the Respondent was placed on community control for a period of two years, followed by eight years probation; and the Respondent was ordered not to have contact with his stepdaughter, directly or indirectly, without consent from his counselor or the Community Control Officer. The Respondent was ordered to pay for his stepdaughter's counseling or treatment through a treatment facility or counselor to which the stepdaughter had been referred, as directed by the Community Control Officer. The Respondent was ordered to continue his psychosexual counseling through Dr. D'Amato, who had substituted for Dr. Vallely. In this connection, the Respondent, in February of 1992, had voluntarily hospitalized himself based upon panic attacks and depression. Subsequently, an investigation was conducted by the State of Florida, Department of Health and Rehabilitative Services and the INS of the Navy; and the Respondent was arrested and incarcerated for 21 days for sexually abusing his stepdaughter. As a consequence, he was referred to the KIDS Sexual Offender Program, in Jacksonville, Florida, and directed to receive treatment from Dr. Vallely. In March or April of 1992, the Respondent was advised by his Naval Preceptor, Dr. Carrierre, to refer himself to the PRN. The Respondent accepted that advice and took the referral in May, 1992 and signed a contract in June, 1992 to monitor his mental health status. The Navy found him guilty of the sex offense and allowed him to remain in the service on active duty until his retirement on October 31, 1992. During this time, he served as a physician's assistant but was limited in his practice to adults only. When the Respondent attempted to reunite with his ex-wife in February, 1993, Dr. Vallely suspended him from the KIDS Program. In June, 1994, the Respondent was accused of violating his probation associated with the case in which he was a participant in the KIDS Program. The allegation of violation of probation was in relation to the Respondent's decision to stay with his ex-wife and stepdaughter in January, 1994. The Respondent was not prosecuted for this violation because he agreed to enter Dr. D'Amato's sexual offender program. In turn, he entered a nolo contendere plea to lewd and lascivious act and had the order entered on June 24, 1994 setting the terms of continued probation. The Respondent received treatment from Dr. D'Amato and Ms. Fort for approximately two years. In his practice, Dr. D'Amato specializes in the treatment of sexual offenders and has treated 500-700 persons with those conditions. Of those persons, two to three percent have been referred for a jail sentence and another two to three percent have been terminated from the treatment program. To deal with the Respondent's pedophilia, Dr. D'Amato conducted an initial clinical interview. Dr. D'Amato performed a number of tests to gain an impression of the Respondent's condition, to include the Minnesota Multiphasic Personality Inventory, the Beck Depression Inventory, the Columbia Sexual Screening Questionnaire, the Jackson Incest Blame Questionnaire, the Wilson Sex Fantasy Questionnaire, the Sexual History Questionnaire, and the Sexual Interest Card Sort. Following the initial assessment, Dr. D'Amato entered the Respondent into a treatment program, which had four levels. Level I was designed to insure safety of the community by restricting movement and by insuring that the Respondent owned up to and took responsibility for the sexual offense that had been committed against his stepdaughter. Levels II and III were devoted to psycho-educational activities, where the Respondent was expected to learn to identify antecedents to the sexual misconduct that had been committed. Level IV was a relapse-prevention process to allow the Respondent to develop a comprehensive plan that could "offshoot" any problems, stresses or arousals that would lead the Respondent to re-offend in the future. During the first phase of the treatment received by the Respondent, an abuse letter was written, a meeting was held with the victim to confront the abuse, history of the abuse was taken, and an apology letter was written. During the second and third phases, the Respondent learned to identify stresses that may lead to problems and to develop empathy for the victim. The emphasis of Dr. D'Amato's program that he administered to the Respondent was cognitive in nature. The program was anticipated to last between two and five years, depending on the person receiving the therapy. Patients in the program are seen in group treatment and, in some instances, receive marital or family therapy individually. The Respondent had polygraphs administered to him to attempt to determine if there was ongoing sexual abuse and to determine if the types of fantasies that the Respondent was entertaining when he entered the treatment program were still in evidence. In treating the Respondent, Dr. D'Amato did not use behavioral therapy to any large extent. This choice was made because having the Respondent undergo polygraphs and looking at the Respondent's psychological assessments which were done over the years, led Dr. D'Amato to believe that the primary problem that the Respondent had was in distorting information. It was observed, through the polygraph examinations, that the Respondent was not showing deviant sexual arousal. Therefore, it was not deemed necessary to offer treatment to deal with that form of problem. It was deemed more important to deal with cognitive restructuring of the Respondent and his view of life and people and interpersonal relationships. The Respondent did receive some behavioral training in his treatment by Dr. D'Amato, referred to as covert desensitization and role playing. Dr. D'Amato believes that cognitive therapy is the best approach to treating pedophilia, non-exclusive type, which the Respondent evidenced. Non-exclusive pedophiles, as defined in DSM-IV, have age-appropriate relationships, whereas fixated pedophiles focus exclusively on children. The Respondent was last seen by Dr. D'Amato in March, 1996. At that time, Dr. D'Amato diagnosed the Respondent as having a mixed personality disorder, NOS., with slight depression, not of a clinical nature, that the Respondent still suffered from post-traumatic stress disorder and pedophilia, non-exclusive type in remission. Dr. D'Amato does not believe that the Respondent needs to undergo further treatment to address the Respondent's condition, in that the Respondent is not showing any active symptoms, has acted in a responsible manner in his work and life, and has integrated back into his family. To require therapy when it is not needed would cause the Respondent to be more resistant, and the Respondent would not grow from the experience, according to Dr. D'Amato. Dr. D'Amato believes that the Respondent has good relapse prevention skills and has shown that he is implementing those skills in his life. Dr. D'Amato relied upon the polygraph examinations to determine whether the cognitive therapy received by the Respondent was successful. In doing so, Dr. D'Amato recognizes that the polygraph measures physiological responses following the subject's answer to a question. Dr. D'Amato did not refer to the prior penile plethysmophgraphy testing to confirm the Respondent's status and did not administer that test. He sees the latter test as being a measurement of sexual response to pictures, which is less important to Dr. D'Amato than the question of whether the Respondent is having sexual fantasies or acting out in a sexually-inappropriate way, which Dr. D'Amato believes the polygraph examination would uncover. Dr. D'Amato has experienced 95 percent success in the treatment of sexual offenders. Nonetheless, he recognizes that this success does not establish that persons who are pedophiles, who have not been known to re-offend, are cured. Dr. D'Amato is not aware of any reports concerning misconduct by the Respondent in treating patients. Dr. D'Amato does not believe that the Respondent should have his practice restricted to adults only. Dr. D'Amato was impressed with the Respondent's ability to deal with stress in relation to a death within the Respondent's family, various legal problems associated with the Respondent's sexual abuse of his stepdaughter, his work load, and the re-unification of the Respondent's family, without committing further sexual abuse based upon the stress. Dr. D'Amato saw the experience which the Respondent had in re-unifying his family as being helpful to his treatment by giving the Respondent the opportunity to deal with the realities of those relationships and to reconstruct those relationships in a positive manner. Dr. D'Amato observed that the Respondent's religious convictions assisted the Respondent in his rehabilitation by sharing the experience with his family and providing a code of conduct to follow. Dr. D'Amato recognized that the Respondent's character structure would not change over time but believed that the Respondent would change his behavior based upon new strategies and coping lessons that he had learned in the treatment. Dr. D'Amato expressed the opinion that if the Petitioner automatically revoked or suspended the Respondent's license to practice as a physician's assistant, the Respondent would not come forward and seek treatment in the future if he experienced a problem, and the result would be more sexual abuse. Ms. Fort expressed the opinion that the Respondent was a low or no- risk candidate for recidivism. Further, she indicated that the Respondent had successfully handled stress related to his older son coming home and financial difficulties. Ms. Fort expressed the belief that given the Respondent's successful completion of therapy, the Respondent could be in close contact with children in private. In performing her evaluation of the Respondent, Dr. Stein spoke to Dr. D'Amato and Ms. Fort concerning the care they rendered to the Respondent. Dr. Stein saw the Respondent on referral from the Physicians Resource Network, formerly known as the Physicians Recovery Network. Dr. Stein examined the Respondent in February, 1996. Dr. Stein's evaluation included an interview with the Respondent and preparation of a history. Dr. Stein also had access to collateral information from other treatment professionals who had seen the Respondent. Dr. Stein contacted individuals who were familiar with the Respondent's professional and private life. Dr. Stein arranged for Flora Zaken- Greenberg, Ph.D., a clinical psychologist, to perform a clinical interview, record review, and psychological testing by use of a WAIS-R, Beck anxiety inventory, Beck depression inventory, MMPI-2, MCMI-III, and Roschach. Dr. Stein took all of these matters into account in preparing a report of her forensic psychiatric examination. That report was rendered on March 9, 1996. Dr. Stein, in her report, and at hearing, expressed the opinion that the Respondent suffers from pedophilia, non-exclusive type, DSM-IV 302.2, and personality disorder, not otherwise specified, which includes narcissistic, antisocial and dependent personality traits. Dr. Stein pointed out that pedophilia is a type of sexual deviant disorder, which lasts for at least six months, in which setting, the individual has strong urges, behaviors or fantasies of having sex with a prepubescent child, and this impairs the life of the pedophile. In a non-exclusive type of pedophilia, the individual may also have relationships with adults. Dr. Stein described the Respondent's personality disorder as being a circumstance in which the Respondent has difficulty viewing and interacting with the world. The Respondent sees the world through a distorted view, thinking in a distorted way, interacting in a distorted way, being impulsive and having a tendency to have mood problems from time to time. Those traits endure and impair him. That disorder does not necessarily mean that the Respondent could not work. In Dr. Stein's opinion, pedophilia cannot be cured and is a disease that has a very high relapse rate, notwithstanding that there are periods in which the pedophile does not have urges or behaviors or fantasies directed to prepubescent children. Dr. Stein holds the opinion that the Respondent will, given his condition of pedophilia, be at greater risk of sexually acting out inappropriately regardless of whether it is in the workplace or elsewhere. Dr. Stein expresses this opinion with the knowledge that the Respondent has learned a great deal from his sexual offender treatment and that the experience that he has had in participating in the treatment has lowered the risk for him to re- offend. Nonetheless, according to Dr. Stein, his psychological testing shows an underlying character structure that creates a potential for sexual deviance, impulsivity, antisocial acts, and impaired interpersonal relations, particularly so when under stress; and that set of circumstances has not changed overtime. Dr. Stein believes that the Respondent should have his practice as a physician's assistant restricted to adults only and the practice monitored. Dr. Stein believes that the monitoring should include biannual polygraph examinations, in which the following questions are asked: (1) have you had sexual feelings towards children under the age of 18 accompanied by your adult patients?; (2) have you concealed any relevant sexual history from your therapist?; (3) have you attempted to access those or other children under the age of 18?. Finally, Dr. Stein believes that the Respondent should participate in a relapse prevention group for the next 12 months and at least at quarterly intervals beyond that point for an indefinite period. She believes that this would assist the Respondent in relapse prevention, to build a repertoire to decrease his risk for re-offending and to protect society from a professional in his position of trust who has a disorder which cannot be cured. Dr. Stein believes that the additional 12-month therapy, followed by quarterly therapy for an indefinite period, is necessary to preserve a degree of continuity and to reinforce the skills achieved by the Respondent in addressing his condition and promotes the further recognition by the Respondent that he knows that he has to answer to people, and that there are external controls in a setting in which his internal controls are not as good as they need to be. The use of a polygraph on a biannual basis would be a means to aid in the process of exerting controls over the Respondent's conduct. Dr. Stein does not believe that it is necessary to revoke or suspend the Respondent's license completely to address his condition and protect the public. From the views held by Drs. Stein and D'Amato and Ms. Fort, it is clear and convincing that the Respondent has a mental condition which effects his practice as a physician's assistant and the ability to render care with reasonable skill and safety to his patients. According to the evidence, the Respondent has performed his practice in an acceptable manner when limited to treating adults only. Dr. D'Amato and Ms. Fort believe that the Respondent could practice as a physician's assistant in contact with children. Dr. Stein disagrees with that opinion. The experts also disagree concerning recidivism rates for pedophiles. Dr. D'Amato and Ms. Fort believe that the rate is low for their program. Dr. Stein does not generally hold that opinion. Given the seriousness of the Respondent's illness and the risk it presents to children, the lack of ability to cure his condition, and the possibility of relapse, however slight, there is a real concern about patient safety should the Respondent be allowed to practice as a physician's assistant treating children. To that end, Dr. Stein's opinion is more compelling when she urges restrictions on the Respondent's practice. Although Dr. D'Amato does not believe that a relapse prevention program is needed for the Respondent, if determined to be needed, he is persuaded that a program should only extend for six months. Having considered the views held by Drs. Stein and D'Amato, a further relapse prevention program of six months provided by Dr. D'Amato, together with quarterly therapy for an indefinite period beyond that point, with biannual polygraph tests of the sort recommended by Dr. Stein, is appropriate to insure that children, who are treated in the office where the Respondent practices, remain safe. No evidence was produced which would suggest that the Respondent should be completely denied the privilege to practice as a physician's assistant based upon concern that he would not proceed with reasonable skill and safety by reason of his mental illness. The restrictions that are discussed above adequately protect the public without depriving the Respondent of his livelihood.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Thaw, it is RECOMMENDED that a Final Order be entered finding the Respondent in violation of Section 458.331(1)(s), Florida Statutes, restricting his practice as a physician s assistant to adults only, requiring the Respondent to undergo an additional six months of relapse prevention therapy, followed by quarterly therapy sessions for an indefinite period and biannual polygraph examinations. DONE AND ENTERED this 27th day of November, 1996, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1996. COPIES FURNISHED: Joseph S. Garwood, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Terry D. Bork, Esquire 200 West Forsyth Street, Suite 1100 Jacksonville, Florida 32202-4308 Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street1 Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issues in this case are whether Respondent, an osteopathic physician who had a year-long consensual affair with one of his patients, committed sexual misconduct in the practice of osteopathic medicine; and if so, whether Petitioner should impose discipline on Respondent's license within the applicable penalty guidelines or take some other action.
Findings Of Fact Respondent David Simon, D.O. ("Simon"), is a family practitioner who was, at all times relevant to this case, licensed as an osteopathic physician in the state of Florida. His office was located in Palm Beach County, where he practiced medicine from 1985 through the events at issue and beyond, until at least the date of the final hearing. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed osteopathic physicians such as Simon. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Osteopathic Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. In May 2005, a 30-something year-old woman named C.K. became a regular patient of Simon's. As C.K.'s primary care physician from 2005 until the end of 2011, Simon treated C.K. for a variety of physical and psychological disorders. The nature and quality of Simon's medical care of C.K. are not in dispute, the Department having neither alleged nor proved that Simon's treatment of C.K. ever fell below the applicable standard of care, or that Simon's medical records failed to justify any course of treatment he undertook for her benefit. In or around November 2010, while their otherwise unremarkable physician-patient relationship remained intact, Simon and C.K. entered into a mutually consensual sexual relationship. This affair had its genesis in a discussion between Simon and C.K. that occurred on October 12, 2010, during an office visit. While being seen that day, C.K. expressed concern about having been exposed recently to sexually transmitted diseases as a result of experiences which she not only related in some detail to Simon, but also corroborated with photographic evidence stored in her cell phone. In view of these disclosures, Simon lost his professional detachment and entered into a flirtatious conversation of a personal, even intimate, nature with C.K. that was outside the scope of his examination or treatment of C.K. as a patient. C.K. was a willing participant in the non-clinical sexual banter which ensued. Some days or weeks later (the precise date is unavailable), C.K. stopped by Simon's office on a Friday afternoon after business hours, when Simon was there alone. The two resumed their previous, personal conversation, and C.K. proposed that they have sexual relations with one another, a suggestion to which Simon responded positively. Within weeks afterwards, Simon called C.K., and they made arrangements to meet privately after hours at his office, which they later did, as mentioned above, sometime in November 2010. Beginning with that visit, and continuing for about one year, Simon and C.K. met once or twice a month in Simon's office, alone, to engage in sexual activity.2/ Simon used his cell phone to call or text C.K. to schedule these trysts. C.K. consented to the sexual activity with Simon. She was, however, incapable of giving free, full, and informed consent to such activity with her physician.3/ Because C.K. was, at all relevant times, a competent adult, the undersigned infers that her incapacity to freely give fully informed consent stemmed from Simon's powerful influence over her as a patient of his. C.K. and Simon did not have sexual relations during, or as part of, any visit that C.K. made to Simon's office for the purpose of seeking medical advice or care. In other words, doctor's appointments did not provide occasions, or serve as cover, for intimate rendezvous. There is no persuasive evidence that Simon ever tried to convince C.K. that their sexual encounters would be therapeutic or were somehow part of a course of purported medical treatment or examination. Rather, Simon testified credibly (and it is found) that he and C.K. kept their personal and professional relationships separate and distinct.4/ The Department has made much of the type of sexual acts that Simon and C.K. engaged in. Simon described their behavior, somewhat euphemistically, as "sexually adventurous." The Department, in contrast, has implied that Simon is a paraphiliac or pervert, a contention which the undersigned rejects as not just unsupported, but disproved by the evidence. Although at least some of the sexual conduct in question might fairly be dubbed unconventional, more important is that every interaction between these adults took place in private, within the context of mutual consent. There is, moreover, no clear and convincing proof in this record of sexual violence or aggression, nor any evidence of actual injury, damage, or harm. For reasons that will be discussed, the undersigned has concluded that the details of Simon and C.K.'s sexual encounters are irrelevant to the charges at hand; thus, no additional findings about the specific sexual activities are necessary. Simon's liaison with C.K. lasted until late December 2011, at which time C.K. abruptly terminated the relationship. The evidence fails to establish C.K.'s reasons for doing so. Thus, the circumstances surrounding the end of the affair, of which scant evidence was presented in any event, are irrelevant. In the wake of the break up, Simon's affair with C.K. became a matter of public knowledge, gaining him the sort of notoriety few physicians would covet. Facing personal disaster and professional ruin, Simon sought counseling from Helen Virginia Bush, a specialist in sex therapy who is licensed both as a clinical social worker and as a marriage and family therapist. Ms. Bush counseled Simon on subjects such as professional boundaries and erotic transference. At her urging, Simon attended and successfully completed the PBI Professional Boundaries Course, a nationally recognized program for doctors and others at risk of developing inappropriate personal relationships with patients or clients. Ms. Bush testified credibly that in her opinion, which the undersigned accepts, Simon is unlikely to enter into another sexual relationship with a patient or attempt to do so. Simon shares office space and staff with Mary Scanlon, D.O., a physician who, like Simon, specializes in family medicine. Although she has an independent practice, Dr. Scanlon works in close proximity to Simon, whom she met in 2000 during her residency when Simon was the attending physician. Dr. Scanlon believes Simon to be an excellent physician from whom she has learned much about practicing medicine, and her credible testimony that Simon's patients hold him in high regard and have largely stood by him throughout this scandal is accepted. Dr. Scanlon was an effective character witness for Simon who favorably impressed the undersigned with her earnest and forthright demeanor. That she has elected to continue practicing in the office she shares with Simon despite the public disclosure of Simon's disgraceful dalliance with C.K. (which she in no way condoned or tried to excuse), even though she is not contractually bound to stay there, manifests genuine support of and respect for Simon, and tells the undersigned—— more persuasively than any testimony——that his career is worth saving. This is the first time that any disciplinary action has been taken against Simon's medical license. Ultimate Factual Determinations The evidence establishes, clearly and convincingly, that Simon exercised influence within the patient-physician relationship, albeit probably unwittingly, for purposes of engaging C.K. in sexual activity. This ultimate finding is based in part on an inference which follows from the presumed fact of C.K.'s incapacity to consent to sexual activity with Simon, but also on other circumstances, the most salient of which are that the initial steps toward the affair were taken during a medical examination, and that all of the sexual activity at issue occurred in the doctor's office. It is therefore determined, as a matter of ultimate fact, that Simon is guilty of engaging in sexual misconduct with a patient, as more fully defined in section 459.0141, Florida Statutes, which is a disciplinable offense punishable under section 459.015(1)(l).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a final order finding Simon guilty of committing sexual misconduct with a patient, which is punishable under section 459.015(1)(l), Florida Statutes. Because this is Simon's first such offense, it is further RECOMMENDED that Simon be placed on probation for two years subject to such reasonable terms and conditions as the board deems appropriate, and that an administrative fine of $10,000 be imposed. DONE AND ENTERED this 30th day of July, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 30th day of July, 2014.
Findings Of Fact Respondent grew up in Havana, Cuba and was a university student there when Castro came into power. As did most university students, Respondent initially supported Castro but later became disenchanted with the regime. Respondent became interested in photography as a boy and became proficient to the point he sold photographs to the news media and helped defray the expense of his medical training through photography. Following the Bay of Pigs Invasion, Respondent smuggled out of Cuba photographs of the Russian missiles that had been delivered to Cuba. Respondent acknowledged that he took all of the photographs and videotapes entered into evidence in these proceedings. At all times relevant hereto, Respondent was licensed as a physician by the Florida Board of Medical Examiners. He graduated from medical school in Madrid, Spain in 1964, completed his internship at Johnson Willis Hospital, Richmond, Virginia, in 1965, and his residency in psychiatry at the Menninger School of Psychiatry, Topeka, Kansas in 1968. Respondent came to Naples, Florida in 1969 as Director of Collier County Mental Health Clinic which post he held for several years before devoting all of his time to his private practice. Respondent was married in 1962, and divorced in 1978. He is the father of three children. His two older daughters are working on advanced degrees while the younger son is entering high school. Following his divorce Respondent concluded that by marrying at a young age, he had perhaps missed out on much of life and decided to try a more libidinous life-style. In 1980, Respondent became attracted to a 19-year old licensed practical nurse who was working at Naples Community Hospital. Although he saw her several times in the hospital, they did not engage in conversation but made eye contact in passing each other. In October 1980, another doctor referred a patient who had suffered head injuries in a motorcycle accident to Respondent for treatment. This patient, Joseph DiVito, was seen in the hospital several times by Respondent and again after DiVito was released from the hospital. At the first hospital visit with DiVito, Respondent was surprised to see Laura Hodge, the LPN at Naples Community Hospital, whose eyes had attracted Respondent. She was the woman with whom DeVito was living at the time of his accident. The charges in the Administrative Complaint involving Laura Hodge are sustained only if a doctor-patient relationship existed between Respondent and Hodge. The doctor patient relationship, if it existed, was related solely to the treatment provided DiVito. Hodge testified that she was counseled by Respondent jointly with DiVito and also alone; that Respondent gave her the drug Artine to give DiVito in the event he suffered a reaction from the drug Haldol, which was given DiVito to aid in his memory loss; that after his release from the hospital DiVito was like a baby who had to be taught to feed himself, to walk, and to get around; that she had lunch with Respondent twice, once at Keewaydin Island, where they went by Respondent's boat, and once at a restaurant in North Naples; that following the lunch she felt dizzy and does not remember removing her clothes at her apartment when returned there by Respondent and having pictures taken of her; that after being shown nude photographs of herself, she was afraid of Respondent and feared he would show the pictures to DiVito; that she Accompanied Respondent on an overnight trip to Miami where they shared a motel room; that they went to dinner at a caberet where she drank some wine and began feeling strange; that when they returned to the motel that night, she does not remember anything until the following morning when she awoke upset and began crying; and that Respondent then drove her back to Naples. Shortly thereafter, Hodge left Naples with DiVito and went to Panama City where DiVito operated a boat leasing business during the summer of 1981. She returned to Naples that fall but had no further contact with Respondent. Respondent testified that he was surprised to see Hodge the first time he went to DiVito's room in the hospital; that Hodge told him that she didn't want to stay with DiVito; that the principal person who took care of DiVito when he was released from the hospital was his brother, William DiVito; that DiVito had been a very active man and was anxious to leave the hospital before he was physically ready to do so; that he was ambulatory, could feed himself and his principal problem was loss of memory; that Hodge was never his patient; that they had lunch twice, once at Keewaydin Island and again at a restaurant in North Naples; that both of these times Respondent took numerous photographs of Hodge and gave them to her; that following the lunch and picture-taking at Vanderbilt Beach (North Naples) he drove her to the apartment she had just moved into; that he visited her at this apartment at a later date and while she changed clothes, he took pictures of her in various stages of undressing; that he showed her these pictures after they had been developed; that she accompanied him to Miami where they shared a motel room and went out to dinner; and that they returned to Naples the following day because Hodge was upset. Photographs of Hodge which were admitted into evidence are of a person who appears fully aware that she is being photographed and in many of the pictures appears to be posing. Haldol, the drug given DiVito, can cause an epileptic type reaction; however, the treatment for this reaction is by injection and not orally because of the time it takes oral ingestion to work. The testimony of Hodge respecting Respondent entrusting to her the Artine tablets to place in DiVito's cheek if he had a reaction to the Haldol is less credible than is the testimony of Respondent. Although Respondent saw Hodge when he was treating DiVito and talked to the two of them, he did not thereby make Hodge his patient. Furthermore, no credible evidence was presented that Respondent surreptitiously gave Hodge any drug which could cause her to not remember the taking of the nude photographs. Her coordination and awareness shown in those photographs belie the contention that she was drugged. Diane Beck, R.N., arrived in Naples in 1981 and worked as a nurse at Naples Community Hospital where she met Respondent. After declining several dates with Respondent, Ms. Beck accepted an offer to go scuba diving from Respondent's boat. This involved a weekend trip to the Florida Keys on the boat and they had sex over this weekend. Respondent also took some nude photographs of Ms. Beck with her consent. Evidence presented to establish a doctor-patient relationship between Respondent and Beck included one instance where, following a D & C on Beck, the gynecologist asked Respondent if he had Tylenol #3 which Beck could take if needed for pain. When Respondent replied in the affirmative, the gynecologist did not write a prescription for medication for Beck. Although Beck testified that while they were living together, Respondent gave her Darvocet, Motrin and Tylenol #3 for dismenorreah from which she chronically suffered, Respondent denied prescribing these medications for her. The most likely scenario in this regard is that Respondent had such medication available in his home and Beck took them in accordance with instructions previously received from her gynecologist. This did not create a doctor-patient relationship between Respondent and Beck. Respondent prescribed benzodiasepines to many of his patients as a tranquilizer and sleeping pill. During the period December 1981 and October 1982 the Upjohn representative (detailer) whose territory included Respondent's office, gave Respondent 465 Xanax tablets as samples. Xanax is a benzodiasepine and the Xanax tablets were .25 mg and .5 mg in strength. The Upjohn company detailer who serviced the Naples area between October 1982 and June 1984 did not testify and no record of benzodiasepines left as samples with Respondent during this period was available at the hearing. Records of those drugs are maintained by Upjohn for the current year and two preceding years only. At the time of this hearing, the earliest record Upjohn had of drugs dispensed to physicians was January 1, 1985. Around November 1982, Upjohn came out with a benzodiasepine called Halcion. This drug was left with Respondent by detailers as samples. Halcion is packaged in sleeves with two tablets in a sleeve. Generally when Halcion is left as a sample, the box contains five sleeves with two tables per sleeve. Halcion has advantages over some other benzodiasepines that it works quickly, the effects wear off quickly and it leaves no hangover effect. Furthermore, the patient may have a memory lapse for the time sedated with Halcion. Use of Halcion is contraindicated by a woman of childbearing age because the drug can adversely affect and cause deformities in a fetus in the early stages of development. Halcion (as well as other drugs) may be obtained by a physician in a stockbottle which generally consists of 100 tablets in a square bottle with a round top. To obtain a stockbottle the physician places his order with the detailer, signs the appropriate FDA forms, the detailer sends the order to his area office and the stockbottle is mailed directly to the physician. No credible evidence was presented that Respondent ever obtained a stockbottle of Halcion from Upjohn. When benzodiasepines are taken in conjunction with the ingestion of ethyl alcohol, the effects of both are enhanced. Hence, there is a danger in taking sedatives while drinking alcoholic beverages. Alcohol alone is a sedative and it is quickly absorbed in the soft tissue such as the brain. When a benzodiasepine is taken at the same time ethanol is being ingested, the alcohol provides a vehicle which allows the benzodiasepine to be more quickly absorbed into the body. While Diane Beck was dating and living with Respondent, several videotapes were made of her and Respondent engaged in various sexual activities. Ms. Beck acknowledged that she voluntarily participated in some of these videotapes but that she was unaware that others were taken. She has no recollection that some of the tapes were being made, nor did she subsequently (before the charges here considered first arose) learn of these videotapes. In those tapes, Beck had been administered Halcion by Respondent without her knowledge or consent. This finding is based upon the following facts: Respondent told Beck he had given her a lot of Halcion. When Beck became pregnant by Respondent in mid-1983, Respondent told her of potential dangers caused by the use of Halcion and suggested she have an abortion. An appointment was made by Respondent with Dr. McCree, a gynecologist, to perform the abortion and on July 11, 1983, Dr. McCree performed a D & C on Beck, aborting the fetus. On one or more occasions Beck observed what appeared to be residue in her after dinner drink, and on at least one occasion asked Respondent about it. Respondent told her it was sugar from the old brandy she was drinking. Respondent acknowledged that he often performed sexual acts on Beck while she was "passed out" and unaware of what he was doing. However, he contended she enjoyed it and had given him permission. The videotapes of a comatose female being shifted around by Respondent to improve the angle for the pictures being taken. This does not appear to be a person merely intoxicated, certainly not one intoxicated with ethanol. This person is as limp as a rag with all muscles appearing to be totally relaxed who is certainly oblivious to what is going on. It is not believed a person merely intoxicated (unless dead drunk) could be moved and manipulated the way Beck was without some reaction. Had Beck been dead drunk, she would perhaps still be intoxicated when she awoke and/or be hung over. Neither of these events occurred. Respondent's steady relationship with Beck terminated in April 1984 after the date for a wedding could not be agreed upon. She moved out of his house but they remained on friendly terms until the existence of the videotapes became known. The third complaining witness, Sandi Karppi, met Respondent in June 1984 on the beach in Naples. At the time Ms. Karppi was an LPN on private duty with a patient where she had one hour off in the late afternoon which she used to walk on the beach. One day while walking along the beach, she was followed by Respondent who was attracted to the energy with which she walked. Respondent overtook her and engaged her in conversation. During the conversation Respondent disclosed his name and that he was a psychiatrist. Ms. Karppi disclosed to him that she had a pap smear taken which was suspicious, that a second test had been done, and she was anxious to obtain the results but her doctor did not return her calls. Respondent volunteered to obtain the results of the later test and inform her. Karppi told Respondent that she walked the beach almost every afternoon and Respondent began visiting the beach to meet her during her hour off from her nursing duties. A short time after the first meeting Respondent called Karppi to tell her that he had the results of her lab test and offered to take her to dinner to give her the results. She consented. Thereafter he continued to meet her on the beach and engage her in conversation. Respondent's version of the timing of the initial events of their relationship is a little different from the version testified to by Karppi; however, these differences are not material to the issue here presented. Respondent testified that Karppi told him of her problems with the pap smear test several days after their first meeting and that he agreed to get the results of the tests. Dr. King advised Respondent obtaining the results of the pap smear and passing them to Karppi. During the meetings on the beach and on boat trips Karppi took on Respondent's boat, Respondent took numerous photographs of Karppi. On one occasion, they went on an overnight trip to Keewaydin Island with Respondent's son Eric and a friend of Eric. The two boys slept in a tent on the beach leaving Karppi and Respondent on the boat. On another occasion they went alone on the boat to Captiva Island where they spent the night on board. Karppi testified that she went to sleep fully clothed while at Keewaydin Island in a bunk bed on one side of the cabin with Respondent in another bed and when she awoke, she was naked. Nude photographs of Karppi in a comatose state are contained in Exhibit 1. Karppi never consented to having her picture taken in the nude. Respondent's version of the nude photographs is that he frequently talked to Karppi about taking nude photographs but she never consented, saying only that maybe she would allow the photographs if out of town or if she was tipsy. Respondent contends these photographs were taken while they were at Captiva Island with only the two of them on the boat and that Karppi drank a lot of wine and passed out. He then disrobed her and took the photographs. Respondent contends he gave Karppi no drugs before she passed out. However, it is concluded that Karppi was given some sedative along with the wine she drank. This conclusion is based upon the following facts: Respondent had access to Halcion, Xanax, Tylenol #3, and other drugs that could induce coma. Respondent had used such drugs on Diane Beck and was aware of the potential for use of these drugs. In order to take some of the photographs in Exhibit 1, Karppi had to be moved around enough to awaken one who was just sleeping or only sleeping off ethanol induced sleep. Some of the actions of Respondent as depicted in these photographs would have awakened or aroused one who was not fully comatose. Karppi has no recollection such photographs were ever taken, though she was sober and had no hangover the next morning. Subsequent to the boat trips Respondent took a vacation during most of the month of July during which he travelled to Europe and the Caribbean. Upon his return to Naples, he renewed his courtship with Karppi and she moved into his home August 26, 1984, the day after Respondent's oldest daughter returned to college. Respondent's testimony that they first had sex that night which Karppi spent in his bedroom is not disputed by Karppi. If they engaged in sex before that time, Karppi was unconscious and unaware of it. During part of the time Karppi stayed at Respondent's home and shared his bedroom, her mother also visited and slept in another bedroom at Respondent's home. This relationship terminated around September when Karppi moved into her own apartment. She and Respondent remained friendly and saw each other occasionally. One night in late December 1984, Karppi called Respondent from the hospital to tell him she had a headache and to ask him to prescribe some medication for her. After learning that Karppi had tried without success to get her doctor on the telephone and that her doctor had prescribed Cafergot for her headaches, Respondent called in a prescription to the hospital pharmacy to give 4 Cafergot tablets to Karppi. The label from the bottle dated December 29, 1984 was admitted as Exhibit 16. In early January 1985, Respondent went to Vail, Colorado, with another woman and Karppi offered to stay at his house with Respondent's elderly mother while he was gone. He agreed and Karppi moved in. While looking for a book in Respondent's bedroom closet, Karppi discovered the nude photographs of her which were admitted into evidence as Exhibit 1. Having no recollection these pictures had been taken, she was quite shocked and called Respondent at his hotel in Vail. He told her to be calm and they would discuss the matter when he returned. Following a more extensive search, Karppi found numerous other photographs of naked women as well as several videotapes. Karppi contacted her doctor for advice, and he referred her to an attorney who in turn referred her to the State Attorney's Office. At the State Attorney's Office, she produced the photographs of herself she had removed from Respondent's residence and her affidavit was taken. On the basis of Karppi's affidavit and the photographs, a search warrant was obtained and on January 11, 1985, a search of Respondent's home was conducted. During this search, Exhibits 1 - 16 were seized. Subsequent to the conclusion of the hearing, those exhibits unrelated to any individual involved in these charges which were objected to at the hearing were not admitted into evidence as having no relevance to these charges. Following the search of Respondent's residence, criminal charges were brought against Respondent in the Circuit Court in and for Collier County alleging sexual battery and administering drugs to Karppi without her knowledge or consent. Respondent was acquitted of those charges.
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 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 Whether Elizabeth Stuglik ("Respondent" or "Stuglik") committed the violations alleged in the Amended Administrative Complaint dated August 9, 2010, and, if so, whether such violations are just cause for any discipline against her license.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Stuglik holds Florida Educator’s Certificate No. 1052905, covering the area of Foreign Language Spanish, which is valid through June 30, 2012. She graduated from college in May of 2007 with a Bachelor's of Science in secondary Spanish education from Indiana University. At all times material to this proceeding, Stuglik was employed as a Foreign Languages Spanish teacher at H.L. Watkins Middle School (Watkins) in the Palm Beach County School District. (School District). Her employment at Watkins was for the 2007-2008 and 2008-2009 school years. Stuglik started her teaching career during the 2007- 2008 year. Respondent taught seventh and eighth-grade Spanish. Her classroom was located in the chorus room in a stand-alone building apart from the main school building, across the courtyard area connected to the cafeteria. Stuglik's chorus room was adjacent to Heath Miller's ("Miller") classroom. He was the band teacher. An office divided the two classrooms, which both teachers shared. The shared office had two doors, and each was for entrance into the two classrooms. Each door had the capacity to be locked from the classroom side. The classroom doors could be opened from the office side, even though the classroom doors were locked from the classroom side. Miller and Stuglik saw each other on a daily basis. Stuglik felt that Miller started out their relationship by approaching her as a mentor, offering to assist her with anything she needed including discipline of the students. In the second or third week of school during August 2007, Miller told Stuglik that it was too bad she was married because it would be fun if they could get together. Stuglik failed to respond to the comment. She thought it was his way of being polite and giving her a compliment. Miller made other inappropriate unprofessional related comments to Stuglik afterwards and she never told him the comments were personally offensive or to stop. Miller also tried to grab Stuglik's buttocks quite of few times. The first time was in the shared office. Miller told Stuglik that he and his wife had an open marriage, and that his wife allowed him to have multiple sexual partners. As Respondent admitted in her deposition, Respondent had sex with Miller either three or four times at Watkins. Each time Miller took Stuglik by the hand without protest, took her to the storage room, undressed her by unfastening the top portion of her pants, lowered her pants and then she would cooperate with him by having providing sexual intercourse. Each sexual liaison Stuglik had with Miller was consensual.1 Neither Stuglik nor Miller used protection such as a condom, during sexual intercourse. Stuglik admitted that she wasn't concerned about getting pregnant because she was on birth control. The first sexual encounter took place one morning in September 2007. Miller went in Respondent's classroom before school while she was sitting at her desk, grabbed her hand, and led her "not in a hard manner" without protest to the storage room. Respondent also failed to resist when Miller undid her pants by undoing the buttons, took off her pants with her underwear, and she stepped out of her pants. Respondent, who was naked from the waist down, mounted Miller, who was sitting in a chair with his penis exposed, for the sexual act and hugged him as he instructed during sex intercourse.2 Respondent's response to Miller's actions while they engaged in sex were, "I'm married; I don't believe in this." And, "That's you; that's not me; I'm married; I don't do that." She never told him to stop what he was doing.3 Stuglik put on her clothes after sex with Miller and returned to her class and taught that day. Miller never threatened Stuglik or physically tried to harm or force her to have the sexual liaisons. At no time, did Stuglik refuse, fight, yell, or pull away forcefully during the encounters. Stuglik paused during a sexual liason but never said no or attempted to stop it. Stuglik also testified to a second sexual encounter with Miller. She admitted that several weeks later Miller got to school early again, grabbed Stuglik's hand, and led her back to the storage room where the two of them had sex again without any conversation. Respondent testified that she didn't say anything because she didn't know what was going to happen. At least a third sexual encounter occurred between Stuglik and Miller at either the end of October or the beginning of November. After the 2007 Thanksgiving break, Stuglik did not have sex with Miller again. Respondent never reported any of the sexual encounters with Miller to anyone until April 27, 2009. During the summer of 2008,, Respondent's husband divorced her. During Stuglik's 2008-2009 school year, Respondent taught sixth, seventh, and eighth-grade Spanish. She moved to a different classroom, the general music classroom, in the same music building. Stuglik was provided a key to the classroom that provided a lock for the door, which prevented anybody from entering the classroom without her allowing the individual inside. The principal informed Stuglik that Miller had asked for a key to her room, stating that he needed access to the storage room. The principal provided the option to Stuglik as to whether she provided Miller the key to Stuglik's classroom. Studlik requested that the principal provide Miller a key, which allowed Miller access to her classroom. Several times during the 2008-2009 school year, while Stuglik was working at her desk, Miller approached Respondent, sat on the desk in front of her, and put her hand on his penis. Each time he placed her hand there, he would say, "Let's do it again." During her second year teaching at Watkins, Stuglik volunteered to help with Miller's band activities on weekends and during the evenings, including going on field trips every couple of months or so. Respondent's social relationship continued with Miller and his wife. Stuglik had a discussion with Miller's wife regarding children. Miller's wife informed Respondent that she badly wanted to have a baby. Stuglik also initiated contact with Miller during the 2008-2009 school year and requested concert tickets from him after she heard he could get discounted tickets to see a show. Stuglik obtained the tickets by getting them from Miller's wife. Stuglik took her boyfriend to the concert for Valentines Day. She and her boyfriend sat next to Miller and his wife at the concert. Stuglik attended the Waterway Cafe, a restaurant bar, and socialized with a group of teachers including Miller and his wife. She went there several times. Stuglik had K.H. and T.B. in her second period class and, A.P. in her sixth-period class during the 2008-2009 school year. Miller would ask that K.H., the drum major, and T.B. come to his classroom from out of Stuglik's class. She would allow the female students to leave during her class core time and go with Miller. Other teachers also allowed Miller to remove female students from their classrooms during class and take them to his class. Approximately at the beginning of April 2009, Miller informed Respondent and several other teachers at lunch that there was a rumor that he was involved sexually with students. Respondent was shocked to hear the rumor and did not believe Miller would harm students. On or about April 16, 2009, district officials started an investigation into allegations that Miller had an inappropriate sexual relationship with a female student during the 2008-2009 school year. On Friday, April 17, 2009, K.H. came to Respondent's class crying and upset. Respondent had her step outside and wait while she took attendance. When Stuglik went in the hall to check on K.H., she was gone. When K.H. returned to Respondent's class, she didn't stay long before a person from the main office removed her. Stuglik never talked to K.H. about the crying incident. Friday was also the day Miller was removed from the school for allegedly having sex with female students. Stuglik was in Miller's classroom where he was about to update her on the rumor when the police arrived to remove him from the school. After Miller was removed from the school, he called Stulik on her cell phone at least one time at 4:16 p.m. on Friday; two times on Saturday at 10:11 a.m. and 3:53 p.m.; and one time on Sunday at 6:47 p.m. asking for information regarding the investigation. On April 21, 2009, during the investigative process, Respondent gave a sworn statement to the school detective, Vincent Mintus ("Mintus"), where he asked her, "did she date Miller" and "was she romantically involved with him." Stuglik responded no to both questions.4 Stuglik did not disclose that she had a sexual relationship with Miller during the interview. Subsequently, during the investigation, Mintus discovered that from September through November of 2007, Stuglik engaged in sex with Miller on the school campus during school hours. Stuglik admitted in her deposition that she didn't initially tell the investigator she provided about the sexual relationship with Miller because "I didn't want anybody to know." On April 27, 2009, Respondent provided a second sworn statement to Mintus where she was told by him that she was a victim, and she agreed. The Mintus interview included the following questions and answers: Q. And did it involve sexual intercourse? A. Yes. Q. Okay. Was it here at school? A. Yes. Q. Yes? Um . . . are you . . .when did that occur? Now let me ask you . . .you are a victim in that. A. Yes. Q. Do you understand that? A. Uh-huh (yes) Q. That was against your will? A. Yes. *** Q. Okay, you understand you are a victim? A. Yes. Q. Okay. Um . . . and your . . . our explanation to me is that it was absolutely non-consensual. A. Yes. Q. So you were a victim of sexual battery. A. It's . . . don't know what the terminology is, but . . . Q. Okay, um . . . okay. It was non- consensual though, right? A. Correct. After the interview, Mintus contacted the Victim's Advocate of Palm Beach County for Stuglik and started a criminal investigation into her rape allegations. Stuglik went to see the Victim's Advocate after Mintus called them. The rape investigation required a third interview of Stuglik. Respondent only agreed to provide the statement with the assurance that Miller would not be criminally prosecuted for her allegations. On July 29, 2009, Almarie Thompson ("Thompson"), a Victim's Advocate for Victim Services, and an attorney went with Stuglik to her third interview with Mintus. During that sworn interview, Mintus asked Studlik if she were taken advantage of [by Miller]. She answered, "A little bit, yeah." Thompson referred Stuglik to Norma Asencia ("Asencia"), a licensed mental health provider with Palm County Victim Services. Asencia had an intake visit with Stuglik on December 14, 2009. Asencia did not diagnose Stuglik but determined that she had common symptoms of a rape victim and structured her remaining four sessions to deal with the symptoms.5 The last session was on March 3, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner finding Stuglik did not violate Subsection 1012.795(1)(b), 1012.795(1)(g), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)9a), 6B-1.006(4)(b), and 6B-1.006(5)(m); finding that Stuglik did violate Subsections 1012.795(1)(d), 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(5)(a), and suspending her educator's certificate for one year followed by probation for one year. DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 30th day of November, 2010.
The Issue At issue is whether Jeffrey Alshin is subject to discipline for violation of Section 490.009(2)(k), Florida Statutes (1983), by committing an act upon a client which would constitute sexual battery or sexual misconduct as defined in Section 490.0111, Florida Statutes (1983). Sexual misconduct in the practice of mental health counseling is prohibited by Section 490.0111, Florida Statutes (1983); that statute states that sexual misconduct shall be defined by rule. According to the Administrative Complaint, Rule 21U-15.04, Florida Administrative Code, defines sexual misconduct. The Administrative Complaint also alleges a violation of Section 490.009(2)(s), Florida Statutes (1983), for failing to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance. The factual basis for these various grounds for discipline is alleged to have been engaging in sexual activity with a client during the period March, 1984, through July 1984, when a counselor-client relationship existed with the client.
Findings Of Fact The Respondent, Jeffrey R. Alshin, is a mental health counselor who has been licensed by the State of Florida during the times material to the allegations made in the Administrative Complaint. The client with whom Alshin is accused of sexual involvement, J.S., was referred to him by a Dr. Lemberg, who saw J.S. on March 1, 1984 (Tr. 24). J.S. telephoned Alshin's office and made an appointment to see him on Monday, March 5, 1984 (Tr. 24). On March 5, 1984, J.S. went to Alshin's office for a therapy session and met Alshin for the first time. She had another session with him on March 9, 1984 (Tr. 24-25). From March 5, 1984 a counselor-client relationship existed between Alshin and J.S. (Tr. 82). On the morning of Sunday, March 11, 1986, Alshin invited J.S. to his home for a barbecue (Tr. 26). After the barbecue, Alshin and J.S. went to Respondent's apartment and that evening they engaged in sexual intercourse (Tr. 27-28). Alshin engaged in sexual intercourse with his client on five other occasions between March and June, 1984 (Tr. 29). During the period in which Alshin and J.S. were sexually involved, Alshin was counseling J.S. (Tr. 28-29). Alshin was never married to J.S. Expert testimony submitted at the hearing establishes that for a mental health counselor to have a sexual relationship with a client is conduct which falls below the minimum standards of performance in professional activities for a mental health counselor when measured against prevailing peer performance (Tr. 80).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Secretary of the Department of Professional Regulation finding the Respondent guilty of a violation of Sections 490.009(2)(q) and (s), Florida Statutes (1983), and that his license as a mental health counselor be REVOKED. DONE AND ORDERED this 10th day of November, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1986.
The Issue Whether petitioner suffered sexual harassment for which respondent is answerable, or whether, on account of her sex, respondent discriminated against her by paying her unequal wages, or whether, in terminating her employment, respondent retaliated against her on account of statutorily protected activity?
Findings Of Fact In April, of 1982, the year after her 19-year marriage to a Mr. Powell, whose surname she originally kept, came to an end, petitioner Gloria Patricia Hord, as she has been known since her remarriage in August of 1984, began work for respondent Bell Aerospace Textron, which has since become the Textron Marine Systems Division of Textron, Inc. (Textron). A defense contractor that builds landing craft air cushion vehicles and trains Navy personnel to operate them, Textron employs perhaps 130 persons in Panama City alone. Textron has a written policy against sexual harassment by or of its employees. As Textron's director of logistics at its Panama City facility, George Gust Alepakos, told the petitioner she was hired on April 3, 1982. Robert L. Ormsby and Albert Eugene "Bud" Small, the supervisor of inventory control who, as her immediate supervisor, shared an office with her when she began, had already interviewed her. Bell hired her as a clerk, general class III in labor grade N-6. The duties of general class III clerks are: Under general supervision, performs a variety of clerical work, where there is individual responsibility for the accuracy and completeness of important records and where decisions within the limits of policies or rules are required. Performs duties such as or similar to the following: supervises and works with a small group of clerks; sets up and maintains record systems of a widely varying nature, including secret or confidential material or information; prepares and issues reports as required; contacts other personnel as necessary in maintaining accurate records; reads reports, correspondence, publications, etc., and abstracts therefrom information pertaining to a particular subject; may perform miscellaneous duties relate dot office work, such as filing, operating various machines, etc. (sic). Respondent's Exhibit No. 23. According to Bell's job description, "demonstrated supervisory ability", is a desirable qualification for general class III clerks. In addition to processing receipts and keeping inventory logs, Patty Powell, as her co-workers then called her, typed and did other secretarial chores for Textron. She worked in a trailer which housed other offices and other workers, including Carol Bjorgan, Robert L. Ormsby, Monica Mitchell, Mike Pate, Mike Smith, Betty Brandon, and George Alepakos, to whom Mr. Small reported. Mr. Alepakos was in the adjoining office. Witnesses described Mr. Alepakos as personable, fun loving, happy go lucky, warm, friendly, outgoing, talkative, loud, sometimes grouchy, displaying a temper at times without being a screamer, dedicated, conscientious, a hard worker and a firm manager. He looked at the hearing to be in his sixties. The time Ms. Powell told him he reminded her of her grandfather, he said she had hurt his feelings. One day as Ms. Powell, then 36 years old, was typing, Mr. Alepakos stood behind her and placed his hands on her shoulders, watching her finish a memorandum. Mr. Alepakos invited Ms. Powell to lunch on several occasions. He regularly took employees in his group to lunch, both male and female, individually and in groups. Conversations at lunch were "business-related" and "very professional" at first. The third or fourth time they ate lunch together, however, Mr. Alepakos professed his love for Ms. Powell. Thereafter, when Mr. Small left the office, Mr. Alepakos would stop in. Within a week of declaring himself at lunch, he said, "I really mean it." He told her she would grow to love him, would learn to, and began leaving notes for her, typically like the one that said, "I love you," signed "George ." She "tried to laugh it off," questioning his sincerity. He was married, and she had a boyfriend. Beginning in the summer of 1982, he asked her almost daily for lunch. He telephoned to inquire, "Have I told you today that I love you?" Sometimes she went to lunch with him during this period, but more often she declined. He promised to behave if she accepted his invitations for lunch, but, in Ms. Powell's view, he welshed on these promises. She had mixed feelings about George Alepakos. She discussed with Carol Bjorgan the possibility of a relationship with him. By this time, her boyfriend Chip McDill had left her in the lurch. It would be nice to have someone older to take care of her, she mused aloud; and she felt she would be better off materially. Never once did she complain to Carol Bjorgan about Mr. Alepakos' romantic interest in her. She left him notes. One note, signed "Patty" and written on notepaper depicting two smiling bees among azalea blossoms, read, "Have a wonderful vacation, then hurry back." Respondent's Exhibit No. 2. One night she and Carol were drinking during "happy hour." Saying she wanted to talk to George, she telephoned his home, but hung up when his wife answered. She sometimes seemed to boast about Mr. Alepakos' taking her to lunch, asking, "Guess who I'm going to lunch with?" At Peddlers Alley one night, Mlles. Hord and Bjorgan met Mr. Alepakos for drinks. When they arrived, Ms. Hord playfully pretended to sit in Mr. Alepakos' lap, and said to Ms. Bjorgan, "We can handle it from here." In December of 1982, both Mr. Alepakos and Ms. Powell attended a party at a bar or restaurant. Mr. Alepakos "didn't think much" of her going out with the 23-year old man who escorted her to the party, danced with her, kissed her while they were on the dance floor, and, later in the evening, wrestled with her in the back seat of an automobile parked outside the establishment. He felt that "it looked bad for the company." The next morning, he called her into his office, told her she had "fallen off [her] pedestal," and that somebody had said she had behaved like a slut. Over the Christmas holidays she was in the hospital, and afterwards visited her mother in Atlanta. Mr. Alepakos called her there at the number she had given him, to ask about her health and to learn when she was coming back to work. On her return she talked things over with Mr. Small, her immediate supervisor, although she never told him about Mr. Alepakos' touching her. He advised her to decline the luncheon invitations and avoid Mr. Alepakos as much as possible. He spoke to Mr. Ormsby about the matter, at her request. In deference to Ms. Powell, who asked that nobody say anything to Mr. Alepakos, Mr. Small spoke to Mr. Ormsby "off the record." At some point, Mr. Alepakos called on Ms. Powell at the apartment she had recently moved into at Panama City Beach. She had invited him. When he arrived he found her with her daughter and stayed only about 20 minutes. Eventually Patty Powell went herself to Mr. Ormsby, and Mr. Ormsby took the matter up with Clarence L. Forrest, then the vice-president in charge of Textron's Panama City operations. Messrs. Ormsby and Forrest decided to transfer Ms. Powell to a general secretarial and word processing assignment in "the training trailer." The transfer was "lateral" in the sense that neither Ms. Powell's official job description nor her labor grade changed. In her new situation, she was involved in the production of training manuals. Bell hired two other word processing clerks to assist in this effort, Diane Ansell and April Dawn Day. Ms. Powell had recommended both Ms. Ansell and Ms. Day. She helped train them when they began. Even after they had learned the ropes, she gave them work to do which she proofread afterwards. If she was out, Ms. Ansell would assume these duties. Ms. Powell wrote out evaluations for Ms. Ansell and Ms. Day, although she never signed them. She did once sign an overtime authorization form, but Mr. Forrest sent it back for Mr. Higgins' signature and resubmission. She assumed her new duties in February of 1983, but invitations to lunch and expressions of affection continued after the transfer. One afternoon, just after Ms. Powell left the office, Mr. Alepakos said to Diane Ansell, "I love that girl," referring to Ms. Powell. After she told Mr. Ormsby that Mr. Alepakos would not leave her be, Mr. Forrest instructed Mr. Alepakos to cease and desist from any activity involving Ms. Powell unrelated to professional requirements, and directed him to communicate with her, if at all, through third parties. During the ensuing eight or nine months, Mr. Alepakos avoided Ms. Powell entirely. He "went the other way around when he saw her coming." In the fall of 1983, however, they were both at an office party at the Long Glass. She grabbed his shirt and led him into another room, where she asked him why he had been avoiding her. According to a friend and co-worker, petitioner was not "an outward flirt," except when she drank. Encouraged by the evening's events, Mr. Alepakos resumed his attentions. He telephoned several times a day, unless he was angry, and they began lunching together again. At various times, she told him she was at the point of reconciliation with her ex-husband, that she was seeing a boyfriend, and that she was gay. But she accepted a good many of his luncheon invitations, which was enough to inspire him to several proposals of marriage. In November of 1983, Ms. Powell came to work early one morning and made her way in the still dark trailer to the word processing room. Suddenly Mr. Alepakos, whom she had not seen nor expected to be there, embraced her and tried to kiss her. When the lights came on, he said, "I'm sorry", and left. During this period, Ms. Powell worked under the immediate supervision of Frank Higgins, who left civilian employment with the Navy and began with Textron in August of 1983. In early December of that year, Ms. Powell spoke to Mr. Higgins about Mr. Alepakos. After a second conversation on the subject, on February 9, 1984, Mr. Higgins stated, in a "Memo For the Record": FOR BACKGROUND, PATTY IS AN EXTREMELY QUIET, SHY PERSON WITH A RATHER "FRAGILE" QUALITY. SHE IS A DEDICATED PROFESSIONAL IN HER APPROACH TO HER JOB. SHE HAS NEVER APPEARED TO PROJECT (AVERT OR OTHERWISE) HER SEXUALITY AT WORK, DRESSES CONSERVATIVELY - AN IDEAL FEMALE WORKER IN TERMS OF NOT BEING INVOLVED TO ANY EXTENT WITH HER MALE CO- WORKERS OTHER THEN PROFESSIONALLY. SHE HAS NOT AND PROFESSES NO[T] TO WANT TO DATE ANYONE FROM WORK. GEORGE IS APPARENTLY "LEANING" ON HER AT WORK TO THE POINT SHE'S BECOMING EMOTIONALLY FRAZZLED OVER IT. HE PROFESSES TO BE IN LOVE AND "WANTS HER." GEORGE IS INSANELY JEALOUS OF HER BEING SURROUNDED BY ALL THESE MEN AND TOLD HER THAT DAVE STULTS, BOB NISSLEY AND MYSELF ARE OR MAY WANT TO BE ROMANTICALLY INVOLVED. HE CALLS HER SEVERAL TIMES SOME DAYS, SOMETIMES ASKING HER TO COME TO HIS OFFICE WHERE "COMMENTS ARE MADE" TO HER. SHE IS AFRAID NOT TO GO OVER TO HIS OFFICE - APPARENTLY FEELS GEORGE IS A POWER BROKER AND IF SHE GETS HIM MAD, HE'LL TAKE IT OUT ON TRAINING BY NOT SUPPORTING OUR NEEDS. PATTY SAYS SHE HAS TRIED EVERY CONCEIVABLE APPROACH TO TELL GEORGE SHE IS NOT INTERESTED IN HIM AND HE'S ANNOYING HER & SHE WANTS IT STOPPED. YET HE REFUSES TO LEAVE HER ALONE. I TOLD HER THAT SHE NEEDS TO THREATEN HIM WITH HARASSMENT CHARGES & BE WILLING TO FOLLOW UP ON THEM TO THE BITTER END - IF GEO. KNEW SHE WAS SERIOUS AND HIS JOB WAS IN DANGER, I HOPE HE WOULD BE PRUDENT ENOUGH TO BACK AWAY. PATTY SEEMS RELUCTANT TO PRESS CHARGES FOR FEAR THAT SHE WILL END UP BEING FIRED AND PERCEIVED AS THE CAUSE OF THE PROBLEM. SHE FEELS CASEY WILL PROTECT GEORGE AND WOULD CONSIDER GEO. MORE IMPORTANT TO BELL THAN PATTY. IN PREVIOUS DISCUSSIONS WITH CASEY DATING BACK TO DECEMBER, I TOO SENSED THAT EITHER CASEY WASN'T BE[ING] OBJECTIVE OR FAIR IN HIS ASSESSMENT OF PATTY OR THAT POSSIBLY GEORGE HAD BEEN FEEDING CASEY LIES AND INNUENDO ABOUT PATTY'S POTENTIAL INVOLVEMENT WITH PERSONNEL IN TRAINING. THE APPARENT STRATEGY IS TO CAST DOUBTS ABOUT PATTY'S CHARACTER SUCH THAT IF HIS SITUATION EVER BOILED TO THE SURFACE HE COULD BLAME IT ON HER TO SAVE HIS JOB. I BELIEVE THERE IS ENOUGH INFO AVAILABLE TO HAVE GEO. REPRIMANDED OR FIRED OVER THIS. THERE ARE SEVERAL PEOPLE WHO HAVE SEEN OR HEARD GEO. MAKE APPROACHES TO HER WHO I'M SURE WOULD COME FORWARD TO SUPPORT PATTY'S POSITION. SINCE THE DISCUSSION WAS OFF THE RECORD I AGREED NOT TO APPROACH CASEY YET. I OFFERED TO SPEAK WITH GEO. BUT IF HE PERCEIVES ME AS A COMPETITOR FOR PATTY, HE OBVIOUSLY WOULD MISCONSTRUE MY INTENTIONS. I DO INTEND TO SPEAK TO LENNY MORGAN "OFF THE RECORD" NEXT WEEK IN NEW ORLEANS TO GAIN SOME ADDITIONAL INSIGHT IN HANDLING THIS ISSUE. Petitioner's Exhibit No. 1. In a second "Memo For The Record," Mr. Higgins reported discussing the situation with Mr. Morgan, and summarized the latter's advice. * * * LENNY'S BOTTOM LINE WAS AS I SUSPECTED - DON'T LEAVE IT SIMMERING TAKE FIRM ACTION. BRING IT TO CASEY'S ATTENTION. LENNY INDICATED HE WOULD BE GLAD TO COME OVER AND BECOME DIRECTLY INVOLVED IN SOLVING THIS. * * * Petitioner's Exhibit No. 2. Although Mr. Higgins never showed these memoranda to "Casey" Forrest, who only learned of them after the present proceedings began, he did mention the situation to Mr. Forrest, who indicated that he wondered whether there was a "problem on both sides," but agreed to speak to Mr. Alepakos. By the time Mr. Higgins left Panama City, in July of 1984, he thought the situation had been resolved. About this time, Ms. Powell told Mr. Alepakos she planned to remarry. He responded that he would be there, if it did not work out. He said he still loved her, and he did not stop asking her out, although, after she became Mrs. Hord, she consistently declined. He continued to declare his love. Mrs. Hord again complained, this time to B. L. Nissley, Textron's director of training documentation, on or about December 15, 1985. Her complaint notwithstanding, she sent Mr. Alepakos a poinsettia for Christmas. At some point, she left a note on his desk, saying "Missing you, P.H." By a memorandum dated January 29, 1985, Mr. Nissley asked Mr. Forrest for a formal investigation "to assure that this problem be resolved once and for all." Respondent's Exhibit No. 6. On January 31, 1985, Mr. Forrest interviewed Mrs. Hord in Mr. Ormsby's presence. She reported the frequent invitations to lunch and a suggestion by Mr. Alepakos that they take a vacation together, but said nothing about his touching her. Messrs. Forrest and Ormsby also interviewed Mr. Alepakos. They decided it might be well for a disinterested third party to investigate, and asked Textron's Mr. Morgan to come over from New Orleans for the purpose. Mr. Morgan interviewed Mrs. Hord for two and a half hours on February 10 or 11, 1985. In answer to his questions, Mrs. Hord said that Mr. Alepakos had not asked her for sexual favors, and had not behaved vulgarly, lewdly or indecently. Nor did she advert to the early morning incident in the trailer, which Mr. Alepakos admitted at hearing, while denying any attempt to kiss her. When Mr. Morgan asked her if Mr. Alepakos had ever touched her, or tried to kiss her or to force himself on her, she answered no. Mr. Morgan asked Mrs. Hord to name others who could support her claim of harassment. She gave him only one name, Ms. Ansell's. Mr. Morgan also interviewed George Alepakos at length, and asked him to name others who could support his assertions. Mr. Alepakos gave him some five names. After interviewing these people and Ms. Ansell, Mr. Morgan returned to New Orleans and stated his conclusions in a memorandum dated February 15, 1985. Mr. Forrest wrote Mr. Alepakos a memorandum advising him that his "conduct in the matter lacked professionalism and good judgement." Petitioner's Exhibit No. 6. He was "warned to confine ... communications and relationships with Mrs. G. Hord to a professional/business environment." Id. This February 25, 1985, memorandum raised "the possibility of termination of [Alepakos'] employment," id. in the event "the cited harassments reoccur[ed]." Id. But the phrase "cited harassments" was a reference to the February 15, 1985, memorandum, Respondent's Exhibit No. 6, in which Mr. Morgan stated: Since the evidence indicates that the relationship was two sided, I find it difficult to describe the activity of Mr. Alepakos as one of harassment. Respondent's Exhibit No. 6, p. 2. Mr. Forrest did not warn or reprimand Mrs. Hord because he felt a supervisor or manager had a different responsibility in matters of this kind than an employee under supervision. At no time, did Mr. Alepakos tell her off color stories, show her pornographic photographs, explicitly solicit sexual favors, or make obscene gestures to or from Mrs. Hord. It fell to Messrs. Ormsby and Nissley to relay the results of Mr. Morgan's investigation to Mrs. Hord. The three of them gathered in Mr. Nissley's office, and he furnished her a copy to read. She had gotten part way through when she exclaimed, "That's a lie. I never sent him flowers. I never left notes on his desk." She threw down the report, and left the office, despite Mr. Nissley's telling her to stay. She dismissed the February 15, 1985, memorandum as a "bunch of bullshit." Mr. Nissley spoke to her afterwards and told her that he would not tolerate vulgar outbursts in the future. She telephoned Mr. Morgan and complained to him about the result of the investigation. She told him she did not think the report was fair or that it reflected what had happened. She became upset and characterized the report as "bullshit." To this he replied, "Wait a minute. I'll answer any question you want to ask." But she hung up the telephone. On January 30, 1985, Mrs. Hord had asked to take a leave of absence. Her request approved, she began thirty days' leave soon after she learned the results of Mr. Morgan's investigation. Upon her return, Mr. Nissley told her about the results of her annual evaluation, and informed her she had been given a raise of $.20 per hour. The $.20 raise took effect March 16, 1985. With the raise, Mrs. Hord was paid $7.90 per hour, a dollar an hour more than Diane "Dee" Ansell was paid. And Ms. Ansell was paid more than April Dawn Day, the third word processing clerk who helped produce training materials for Navy personnel. Mrs. Hord requested a meeting with Mr. Forrest to discuss the raise, which brought her salary to the highest authorized for her position; it was the same amount as the raise the other two word processing clerks in the training program received. But, since she was paid more than they were, the raise represented a smaller percentage of increase, and she objected. On the morning of March 27, 1985, when Mrs. Hord met with Mr. Forrest, Messrs. Ormsby and Nissley were also present. She told them Bell could keep the raise. Mr. Forrest began to explain the mechanics of Bell's merit raise system, when Mrs. Hord interrupted, "It's a bunch of bullshit. You can do anything you want." As she started to leave, Mr. Forrest told her to stay, but she refused. At one point, she called her bosses "jackasses." According to Mr. Forrest's secretary, who was outside, she "had a wild look" as she slammed the door on her way out. Before they dispersed, Mr. Forrest and the others decided to terminate her employment, unless Mr. Morgan advised against it. Mr. Forrest thought her language "unbecoming a lady." He certainly would not have expected a woman to use such language, and it did not affect him in the same way as it would have, if a man had used the same language. On the other hand, he would not have expected any of Bell's Panama City employees to use language of this kind in such a setting. Mr. Forrest testified under oath that Mrs. Hord was not fired because he found her language the more offensive on account of her femininity. Apprised of the situation, Mr. Morgan consulted a New York lawyer, then told management in Panama City he had no objection to firing Mrs. Hord. Mr. Ormsby then caused a memorandum to be addressed to Mrs. Hord, notifying her that her employment was "terminated as of this date (27 March 1985), for gross disrespect, incertituded (sic), premeditated and continued disregard for all levels of Management ... so as to challenge the management of this company and to incite disrespect of other employees ...." Respondent's Exhibit No. 10.
Recommendation It is, accordingly, RECOMMENDED: That the Florida Commission on Human Relations dismiss Gloria Hord's petition for relief. DONE AND ENTERED this 22nd day of September, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II 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 22nd day of September, 1987. APPENDIX Petitioner's proposed findings of fact Nos. 1, 5, 6, 7, 8, 15, 17, 18, 19, 20, 23, 24, 25, 26, 29, 30, 32, 33, 36, 37, 38, 39 and 40 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, the evidence showed that she worked as an acting supervisor for Columbia Research but not, as far as the hearing officer's notes reflect, for CSC. With respect to petitioner's proposed finding of fact No. 3, the evidence showed that Mr. Small interviewed her first. Mr. Alepakos, as his supervisor, could presumably have overruled Mr. Small's choice even if Mr. Small made the "basic decision" to hire. Petitioner's proposed finding of fact No. 4 has been adopted, in substance, except that the evidence did not establish that he placed his hands on her shoulders more than once. With respect to petitioner's proposed findings of fact Nos. 9 and 10, the evidence did not reveal any sexual advances at this point, aside from declarations of love, which were not entirely unwelcome. Except for the last sentence, petitioner's proposed finding of fact No. 11 has been adopted, in substance, insofar as material. With respect to the final sentence of No. 11 and the word "Again" in No. 13, it was not clear from the evidence that she went to Mr. Ormsby before Christmas. With respect to petitioner's proposed finding of fact No. 12, Mrs. Hord did not always go "to great lengths to avoid contact with Mr. Alepakos during this time period." She not infrequently accepted his invitations to lunch. Petitioner's proposed finding of fact No. 14 has been rejected as against the weight of the evidence. Petitioner's proposed finding of fact No. 16 has been adopted, in substance, insofar as material, except that Mr. Alepakos was not put on any formal probation. With respect to petitioner's proposed finding of fact Nos. 21 and 22, the evidence showed that he resumed his attentions because of her advances. With respect to petitioner's proposed finding of fact No. 27, the evidence showed that he called, but not that he called frequently. With respect to petitioner's proposed finding of fact No. 28, he did not come by uninvited. With respect to petitioner's proposed finding of fact No. 31, he said she needed to see a doctor but not, in so many words, that the marriage would fail. With respect to petitioner's proposed finding of fact No. 34, nobody placed limits on Mr. Morgan's investigation. Petitioner's proposed finding of fact No. 35 has been rejected as contrary to the evidence. She was not told she would be reprimanded for making good faith complaints. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 29, 31, 32, 33, 34, 35, 36, 37, the first two sentences of No. 38, Nos. 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 60, 61, 62, 65, 66, 70 and 72 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, she lived at Panama City Beach at one point. Respondent's proposed findings of fact Nos. 9 and 10 are immaterial or subordinate. Respondent's proposed finding of fact No. 11 is rejected. With respect to respondent's proposed finding of fact No. 12, Ms. Bjorgan's testimony was that she was not sure Mrs. Hord wanted to see him that night. Respondent's proposed finding of fact No. 14 has been accepted, in substance, insofar as material, except for Small's suggested advice to change her manner of dress. With respect to respondent's proposed finding of fact No. 25, Mrs. Hord was ambivalent about Mr. Alepakos before as after the incident. Respondent's proposed finding of fact No. 27 is rejected. Respondent's proposed finding of fact No. 28 blows a single incident out of proportion. Respondent's proposed finding of fact No. 30 is rejected. The final sentence of respondent's proposed finding of fact No. 38 is rejected, as is No. 39 to the extent it proceeds on the assumption there was any hiatus. Respondent's proposed finding of fact No. 44 has been adopted, in substance, except that the evidence did not establish that the poinsettia was flowering. With respect to respondent's proposed finding of fact No. 57, the epithet was "jackasses." With respect to respondent's proposed findings of fact Nos. 59 and 64, Alepakos had no input, but the fact of her complaints was considered and inspired the call to Morgan. Respondent's proposed finding of fact No. 63 is immaterial, except that Alepakos' attentions did not cause great mental stress. With respect to respondent's proposed finding of fact No. 67, his overtures were romantic. With respect to respondent's proposed finding of fact No. 68, he did propose marriage. Respondent's proposed finding of fact No. 69 has been adopted, in substance, insofar as material, except for the final clause of the final sentence which is rejected. Respondent's proposed finding of fact No. 71 is immaterial or subordinate. COPIES FURNISHED: Alvin L. Peters, Esquire 36 Oak Avenue Panama City, Florida 32401 William B. deMeza, Jr., Esquire Holland and Knight Post Office Box 241 Bradenton, Florida 33506 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
