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, John P. Wordsman, III, 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. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on January 13, 1981. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until March 3, 1981, to allow Petitioner to secure representation. In the course of the final hearing the Petitioner testified in his own behalf. The Respondent called as witnesses Lois P. Stevens, Staff Psychologist in the forensic service at the Florida State Hospital and Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital. Petitioner had two exhibits admitted. Respondent's Exhibit No. 1 was admitted into evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Duval County, Florida, and the authority of Chapter 917, Florida Statutes (1977). Beginning July 28, 1978, through the present, Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of 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 made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The Petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period. His condition has been diagnosed as (1) sexual deviation, pedophilia, (2) homosexuality, and (3) alcoholism. The petitioner has been placed with the Department of Health and Rehabilitative Services following a plea or nolo contendere to the offense of sexual battery, involving an attempted rape. Referring again to the Petitioner's participation in the principal treatment modality, i.e., group therapy, Petitioner has worked in a group headed by a male psychologist, staff worker and subsequently, a group with a female staff worker. The change to the female staff worker was to assist the Petitioner in dealing with his relationship with females. His attitude toward females has been described as Victorian in that he had problems relating to women who fulfilled roles other than child bearing. Through the group discussions, the Petitioner has talked about his preference for homosexual life style and his problem with alcoholism. Wordsman has not discussed his problems with pedophilia. In the group sessions, his "feedback" under discussion of his life's circumstance is confusing and his motivation in those sessions is not genuine. In this connection, the Petitioner's attitude has been described as one of playing "head games," especially with his principal advisor and therapist, Lois Stevens. This attitude in essence means the Petitioner has feigned sincere participation. His explanation for this tactic is to the effect that he wanted the treatment but that he did not feel that he was up to the occasion of sincerely applying for it. The Petitioner does not wish to engage in specific topics in the group therapy sessions and is distrustful of people, to the extent that he would not confide in others. When pressed to give specific responses during the course of the group therapy sessions, the petitioner becomes stressful and will not give answers to the questions posed. The form of treatment in the sex offender program requires honesty in the responses of the participants and the Petitioner has difficulty complying with this standard. In the course of the group sessions and in dealing with the subject of his crime, the Petitioner would not give specific responses other than to say that he remembers events around the time period of the act; however, he indicates that he may have been on alcohol when it occurred. The only brief progress that the Petitioner has shown in relating to his problems in the group therapy sessions occurred immediately after he had been told that the staff was recommending his return to the committing court. At that juncture, he became more sincere in the first session, but immediately reverted back to a superficial and shallow manner of dealing with the treatment form. The Petitioner has been involved in other therapy activities to include music, leather and wood therapy, a program for alcoholics, and occupational therapy. Petitioner is an accomplished musician and has performed well in that form of therapy and in addition has made notable progress in occupational therapy. Notwithstanding the progress in these therapy areas, his failure to make satisfactory progress in the group therapy sessions, which sessions are the primary agent for change in the underlying condition of the patient, has lead the hospital staff to the conclusion that it has exhausted treatment of those conditions. Continued success in the other related therapy does not have a significant effect in alleviating his condition. This opinion is expressed in the most recent staffing summary of December 10, 1980, a copy of which has been admitted as Respondent's Exhibit No. 1. In addition to the staffing achieved by Florida State an interdepartmental screening was conducted of the Petitioner's condition and the question of exhaustion of treatment in the sex offender programs and it was the opinion of the unit directors of the sex offender programs within the Respondent Department's organization that the overall Department had exhausted treatment for the Petitioner in the sex offender programs. It is the opinion of the Department that the Petitioner continues to meet the definitions of sex offender within the meaning of Chapter 917, Florida Statutes. Wordsman feels that he has made progress in dealing with people around him and that he gets along better than he did before his commitment to the program. He has expressed concern that the staff is "out to get him" and that the group therapy sessions are not adequate to deal with his problem. He prefers to be placed in a program for behavior disorders with specific emphasis on drug abuse, in that he feels his problems arise when he becomes intoxicated. His reaction to the current program In which he is placed is summed up by his remark that he does net "understand what the staff wants from him."
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 John P. Wordsman, III, and that said John P. Wordsman, III, be returned to the committing court for further disposition. DONE and ENTERED this 19th day of March, 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 19th day of March, 1981 COPIES FURNISHED: Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324 J. Craig Williams, Esquire 335 East Bay Street Jacksonville, Florida 32201
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, as amended, and, if so, what penalties should be imposed.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since June 5, 1986, a Florida-licensed clinical social worker, holding license number SW1666. S. G. became a patient of Respondent's in the fall of 1992, when she was experiencing marital difficulties. Her then husband, from whom she was separated, was already a patient of Respondent's. Pursuant to Respondent's suggestion, S. G. saw Respondent as a patient once a week. S. G. and her husband met with Respondent both as a couple and separately. At first, during his sessions with S. G., when they were alone, Respondent's demeanor was "pretty professional"; however, as time passed, "boundaries were crossed." Respondent began to talk to S. G. about his personal life. For example, he told her about the extramarital affairs he had had, claiming that these instances of infidelity had occurred "when he was highly stressed." After making this claim, he added that he "had been very, very stressed lately." In or about late April of 1993, when S. G. was still a patient of his, Respondent telephoned S. G.'s residence and asked S. G.'s son, who had answered the telephone, if he could speak with S. G. S. G.'s son thereupon handed S. G. the telephone and S. G. began conversing with Respondent. During their conversation, Respondent told S. G. that he "wanted to engage in phone sex." When S. G. declined to participate in such activity, Respondent asked her to visit him that evening at his office, which she agreed to do. As promised, that evening, after dark, S. G. went to Respondent's office. When she arrived, at around 8:00 or 9:00 p.m., Respondent was in his office seeing another patient. S. G. remained in the waiting area outside Respondent's office until the other patient left and Respondent came out and invited her to return with him to his office. Upon entering the office, S. G. sat down in a chair. Respondent thereupon took off his tie and asked S. G. if she trusted him, to which S. G. replied, "Yes." Respondent then tied S. G.'s hands behind her back with his tie. The two wound up on the floor together, where they engaged in sexual intercourse. They were interrupted by the ringing of the telephone in the waiting area. Respondent left the office to answer the telephone. He joked that it was probably his wife "wondering where he was." When he returned to the office, Respondent tossed S. G. a few tissues to use to clean herself off. He then asked S. G. (whose car was parked in front of the building in which Respondent's office was located) to drive him to his car (that was parked behind the building), which she did. They both then went their separate ways. S. G. was "very upset" following this encounter. Respondent telephoned her the following morning and told her he needed to see her. He met her later that day at a delicatessen. When S. G. ordered only a cup of coffee, Respondent told her that she was a "cheap date." During their conversation in the delicatessen, Respondent told S. G. that what had happened the night before "had to remain between the two of [them] and no one else could know." On a subsequent occasion, approximately a month or so later, in or about early June of 1993, when she was still a patient of Respondent's, S. G. had another encounter with Respondent in which the two of them engaged in sexual activity. This meeting took place in the evening, at approximately 9:00 or 10:00 p.m., in S. G.'s vehicle, which was parked near a "video store" from which Respondent had rented "some videos" that he needed to return. After returning the "videos," Respondent joined S. G. in her vehicle. Upon entering the vehicle, he commented "about how [S. G.] looked." The two then engaged in oral sex, after which Respondent stated that "somebody's wife wasn't going to get any that night." Following this second instance of sexual activity between Respondent and S. G., S. G. began to feel that she was "being taken advantage of, manipulated, and betrayed" by Respondent. She therefore stopped seeing him. In addition, she filed a civil action against Respondent and gave a statement to the police concerning her relationship and activities with Respondent. At the time of the final hearing in this case, S. G.'s civil action against Respondent had been settled and S. G. had received from Respondent the money he had agreed (as part of the settlement) to pay her. S. G.'s statement to the police led to criminal charges being filed against Respondent in Broward County Circuit Court Case No. 94-17857CF. Respondent was initially charged with three counts of sexual conduct by a psychotherapist, in violation of Section 491.0112, Florida Statutes, 3/ to which he pled not guilty. Pursuant to a "plea bargain," the charges were reduced to three counts of simple (misdemeanor) battery, to which Respondent pled guilty "in [his] best interest." 4/ Respondent was adjudicated guilty and, as to each count, placed on consecutive one-year terms of probation. The following is an excerpt from the transcript of the proceeding at which Respondent entered his guilty plea to these reduced charges: THE COURT: Is there a stipulation to the factual basis of the plea? MR. DUTKO [Defense Counsel]: Yes[] sir[,] as to the offense of battery. THE COURT: Okay. What facts would the State bring forth if the case went to trial? MR. SHANE [Prosecutor): The State would allege that on or about the 27th day of April, 1993, on two separate occasions, at two separate times and locations, the defendant did unlawfully touch or strike [S. G.] without her permission. With respect to Count III, as amended in the information, on or about the 1st day of June, 1993, the defendant did touch or strike [S. G.] without [her] permission or consent. THE COURT: Court finds that the defendant received advice of competent counsel with whom he is satisfied[;] [t]hat he knowingly, voluntarily, and intelligently waived the constitutional rights contained in the plea form[;] and [that] he freely entered into this plea agreement. The Court finds the defendant competent. There's a factual basis and the Court hereby accepts [the change] of plea and makes the agreement to enter the plea and waiver of rights an exhibit for the purpose of the court file. Any reason why sentence should not be imposed? MR. DUTKO: No, sir. THE COURT: As to case 94-17857 as far as amended Court adjudicates the defendant guilty of Count I, II and III, which has been amended to Misdemeanor Battery. The defendant is placed on one year probation on each count. All counts are to run consecutive[ly], rather than concurrent[ly], with the following special conditions[:] $143.00 court cost[s], and that's to be paid at minimum equal monthly increments over the period of probation; [r]andom urinalysis to determine the presence of a controlled substance[;] [t]wo hundred hours of community service, and that may be performed at any nonprofit entity at a minimum and equal monthly increments over the period of his three years of probation[;] [n]o contact directly or indirectly with [S. G.], her family or her place of business[;] [t]hat the defendant may travel for business purposes within Dade, Broward and Palm Beach[;] [t]he defendant is permitted to go to Orlando, during the periods that have been set forth[;] [a]nd the Court has no objection to the defendant, at some future date, . . . com[ing] in and request[ing] further travel once the Department has been given an opportunity to be heard. Is that [the] sum and substance of the agreement? MR. DUTKO: It is Your Honor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order finding Respondent guilty of the violations of Section 491.009(2)(c), (k), (q), and (s), Florida Statutes, described above and disciplining him for having committed these violations by fining him $2,000.00, suspending his license for a period of six months, and placing him on probation for a period of one year commencing immediately following the conclusion of the period of his suspension. DONE AND ENTERED this 27th day of July, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 27th day of July, 2000.
The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Edward G. LeGer, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Petition was received by the Division of Administrative Hearings on November 9, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department had requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The hearing was conducted on December 16, 1981. In the course of the final hearing the Petitioner testified and offered as witnesses, Larry Carroll and James Thaddeus Rogers, participants in the sex offender program at Florida State Hospital in Chattahoochee, Florida. The Petitioner submitted two exhibits, composite in nature, which were admitted. Respondent called as witnesses, Robert Alcorn, Clinical Director for the Mentally Disordered Sex Offender Program at Florida State Hospital; Michael Pomeroy, Clinical Psychologist at Florida State Hospital and Connie Smith, Clinical Social Worker at Florida State Hospital. Respondent presented no exhibits. At all times pertinent to this proceeding, Petitioner has been in the custody of the Respondent, in keeping with the orders of Court and the authority of Chapter 917, Florida Statutes (1977). During that time, the Petitioner has resided at the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in the hospital program for the benefit of mentally disordered sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in the recognition of and ability to deal with the underlying conditions which caused him to be placed in this program have reached their zenith. In the face of these circumstances, the Respondent has made a preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. These opinions were made known to the Petitioner and when confronted with this information, the Petitioner requested the formal hearing which is the subject of this Recommended Order. LeGer was committed to the custody of the Respondent on February 27, 1979, the Court having found him to be a mentally disordered sex offender within the meaning of Chapter 917, Florida Statutes (1977). He was received into the program at the Florida State Hospital in Chattahoochee, Florida, on April 23, 1979, and has undergone treatment beginning on that date. The objectives of the treatment program were to deal with LeGer's long standing sexual deviation, which specific condition is pedophilia and his associated difficulty with chronic alcoholism, until he no longer evidenced himself to be a menace to society in terms of sexual "acting out" or until it was concluded that he could no longer be treated for these difficulties. (The patient also had undergone treatment as a sex offender in the 1960's.) The program at Florida State Hospital has as its central focus the utilization of group therapy with adjunctive programs in recreational and occupational therapy, and this treatment regime relies heavily on a patient's self-motivation. Petitioner's Composite Exhibit No. 1 is constituted of a series of progress reports or clinical summaries of Petitioner's condition during the course of his treatment. As can be seen, the patient has made significant progress in dealing with his condition of alcoholism and his general conduct and demeanor has been exemplary; however, he has gained little insight into his sexual condition of pedophilia. This is borne out by the patient's beliefs that the staff session of September 16, 1981, in which he expressed his firm belief that he had reached maximum benefits from the treatment program and felt that he was no longer a risk to commit the sexual offenses, in that he was aware of the consequences of his deviant behavior for himself and others. This belief is erroneous, in that the staff report and the testimony given by staff members in the course of the hearing lead to the conclusion that the patient has not gained sufficient insight and understanding as to his deviant sexual behavior, sufficient to deter him from committing future sexual offenses. Michael Pomeroy, the patient's primary therapist from May, 1980, through mid-January, 1981, by his testimony, established the fact that the Petitioner had never been open enough with Pomeroy for Pomeroy to gain an understanding about what the patient's underlying problems were. It was through the witness Pomeroy's review of the history of the case that Pomeroy learned of the patient's problems with alcoholism and pedophilia related to young females. Pomeroy correctly describes the patient's participation in the program to be superficial, with the exception of the alcoholic rehabilitation aspects of the treatment and care. In dealing with Pomeroy, the patient was evasive and his behavior evidenced a manipulative demeanor (con or criminal attitude). In dealing with the question of his sexual problem, the patient simply would tell Pomeroy that he, the patient, wanted treatment. Pomeroy found the patient to be of the persuasion that the patient did not feel that he had a problem other than alcoholism, which had been overcome, and having overcome the alcoholism, all other problems were taken care of. Pomeroy found LeGer to have no understanding of what caused him to do his sexual acting out or what to do about that acting out in the future. These attitudes by the patient continued through the time of the final hearing, according to Pomeroy. In view of the lack of insight and no clear changes in attitude during the course of treatment and the resulting belief by the Petitioner that he does not have a problem of sexual deviance, Pomeroy's testimony establishes the fact that the Respondent is unable to treat the patient's pedophilia and the fact that his condition of pedophilia still presents a danger to society. Connie Smith, the patient's therapist from January, 1981, to the present, identified the most recent analysis by the staff of the problems presented by the patient's clinical profile. Those problems are: (1) gaining insight and understanding into deviant sexual behavior; (2) defensiveness and evasiveness with regard to relating feedback about himself and events directly related to his sexual problems; (3) exploring his needs to be over attentive to the needs and problems of others; and (4) exploring his dependence on alcohol. In these areas, Smith has found that the patient has not progressed in dealing with his sexual deviation and tends to over exaggerate his progress in that area. LeGer tells the therapist that he will do what she wishes him to do to participate in the program; however, he does not believe that he needs the therapy. (This comports with the testimony which LeGer gave in the course of the hearing. Notwithstanding this belief, he stated that he wanted to stay six months more in the program and that he would have done better had the therapy been more intense. The witnesses Carroll and Rogers agreed with this latter remark by the Petitioner and also expressed a belief that the patient had successfully completed the program, opinions not supported by the other evidence and not accepted by this Hearing Officer.) According to Smith, when LeGer has occasionally discussed the event which placed him in the program on this occasion, i.e., sexual battery on a minor female, he has discussed it in a superficial way and tended to place some blame on the victim. Finally, Smith agrees with Pomeroy's perception that the patient does not have sufficient insight into his problem and continues to meet the definition of a sex offender within the meaning of Chapter 917, Florida Statutes, and will not make progress by additional stay in the program. These perceptions are well founded. The Clinical Director of the Florida State Hospital Sex Offender Program, Robert H. Alcorn, presented the Petitioner's situation through a staffing conference of program officials in the other sex offender programs offered by the Respondent. This occurred on November 2, 1981, and it was the feeling of the other program officials that they would not be able to assist the Petitioner further, and in that sense, as in the situation at Florida State Hospital, had exhausted treatment for the Petitioner's underlying sexual deviance. The Respondent has exhausted all appropriate treatment for the patient's sexual problem, but that treatment has not been totally successful and the patient continues to be a sexual menace and there is a likelihood that the patient would commit other sexual crimes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Edward G. LeGer in its sex offender programs and that said Edward G. LeGer be returned to the committing court for further disposition. DONE and ENTERED this 13th day of January, 1982, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1982. COPIES FURNISHED: Edward G. LeGer Florida State Hospital Chattahoochee, Florida 32324 Ted Mack, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue The issue to be presented is whether Respondent failed to maintain good moral character as alleged in the Administrative Complaint, in violation of Section 943.1395(7), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was certified as a law enforcement officer by the Florida Department of Law Enforcement, having been issued certificate number 281123. Respondent was employed by the City of Madison Police Department from December 2008 through July 2009. At the beginning of 2009, Respondent was 23 years old. Sometime in late December 2008 or early in 2009, Respondent received the telephone number for E.B.H. from Paige Bell, a friend of E.B.H.'s. At the time Ms. Bell gave Respondent E.B.H.'s number, E.B.H. was 16 years old. Respondent knew that E.B.H. was under the age of 18. Although the exact time-frame of the communications is unclear, in approximately January or February of 2009, Respondent and E.B.H. texted and called each for a one to two-week period. They never met in person. During their short period of communication, the two sent each other pictures of themselves so that each knew what the other looked like. E.B.H. testified that the first pictures sent were normal photos where she was clothed. After receiving those, she testified that Respondent asked her for "sexy" photos of herself wearing no underclothing. In response, E.B.H. sent him two pictures of herself, either nude or partially nude. The communication between Respondent and E.B.H. was brief, lasting no more than a few weeks. Once E.B.H. learned that Respondent was a law enforcement officer, she stopped texting him because she did not want either of them to get in trouble. Sometime after the texting stopped, the police chief for City of Madison Police Department received an anonymous complaint alleging that Respondent had possession of nude pictures of a minor female. On July 7, 2009, Sergeant Benton Ebberson was assigned to conduct an internal investigation in response to the complaint. As part of his investigation, Sergeant Ebberson spoke to several individuals who did not testify at hearing. What those individuals told him during the investigation is clearly hearsay. However, from these interviews, Sergeant Ebberson was able to gather enough information to get descriptions of the photos and identify E.B.H. as the subject of the photos. As a consequence, Sergeant Ebberson located and, with the permission of her parents, interviewed E.B.H. She admitted sending the photos to Respondent, but no longer had possession of the phone from which the texts were sent or copies of the pictures. Her father had discovered her actions and the pictures earlier in the year, and had deleted the photos and confiscated her telephone. Respondent also was interviewed as a consequence of the internal investigation. Consistent with the information he gave during his interview, he denies asking for the photos and claims E.B.H. sent them to him on her own volition. Whether he asked for the pictures is not particularly relevant. There is no dispute that E.B.H. sent and Respondent received at least two pictures of E.B.H. in which E.B.H. was wearing little or no clothing. Respondent claims that, while he received the pictures and looked at them, he did not know they were pictures of E.B.H., and therefore a minor, because the pictures did not include her face. However, he knew that the pictures were received from E.B.H.'s telephone number. Respondent did not report receiving the pictures to either his supervisors or to E.B.H.'s parents. Respondent also claims that upon receiving the pictures, he simply deleted them. His testimony to this effect is not credible. E.B.H. testified credibly that while she had sent inappropriate photographs to a former boyfriend on a separate occasion, she had sent these photographs to Respondent only. Regardless of the possible motives involved for complaining, it makes no sense that anyone would be able to complain to the police department and that the photos could be described in sufficient detail for Sergeant Ebberson to be able to locate E.B.H. unless Respondent either talked about receiving the photos or showed the photos to someone else. The photos, however, are not in evidence. E.B.H. knew she was either completely nude or only partially dressed, but could provide very little other information about the photos. No evidence was presented to indicate that the photos included a depiction of sexual conduct.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2010. COPIES FURNISHED: Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ernest M. Page, IV, Esquire Post Office Box 167 Perry, Florida 32348 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Melvin Robinson, through sex offender programs administered by the Respondent. See Section 801.111, Florida Statutes (1975).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Petition was received by the Division of Administrative Hearings on November 4, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department had requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The final hearing in this cause was conducted on January 5 1982, following a continuance of the previously scheduled hearing of December 16, 1981, which was designed to allow the Petitioner to gain the assistance of counsel. The Petitioner was unable to make those arrangements and the hearing was held with the Petitioner appearing pro se. In the course of the final hearing, the Petitioner testified and offered as witnesses, Alice Butler, Section Aide in the mentally disordered sex offender program, Florida State Hospital; Sterling George, Psychiatric Aide in the mentally disordered sex offender program at Florida State Hospital; and Alfred Gerardo, a participant in the sex offender program at Florida State Hospital. The Respondent offered as witnesses, Robert Alcorn, Clinical Director for the mentally disordered sex offender program at Florida State Hospital; Charles Shaffer, Clinical psychologist in the aforementioned program; Allison Dowling, Clinical social Worker in that program; and Lois Stevens, Clinal social Worker at Florida State Hospital. The Respondent presented two exhibits which were admitted into evidence. At all times pertinent to this proceeding Petitioner has been in the custody of Respondent, in keeping with orders of court. During that time, the Petitioner has resided at the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in the program for the benefit of sex offenders, to include those persons committed under Chapter 801, Florida Statutes (1975), entitled "Child Molester Act." Although the Petitioner has been subjected to a full range of treatment opportunities his progress in the recognition of and the ability to deal with the underlying conditions which caused his placement in the program are at end. In the face of these circumstances, the Respondent has made a preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. These opinions were made known to the Petitioner and when confronted with this information, the Petitioner requested the formal hearing which is the subject of this Recommended Order. Robinson was admitted to the forensic service at Florida State Hospital on October 9, 1990, to begin his participation in the mentally disordered sex offender program. He had previously been enrolled in the program from March, 1979, through February, 1979, a commitment under the terms of Chapter 801, Florida Statutes. Following his initial release from the program, Robinson was accused of violating the terms and conditions of probation and was adjudicated guilty of the offense for which probation was granted. Imposition of a sentence in that case was withheld and the Petitioner was returned to the custody of the Department of Health and Rehabilitative Services, in keeping with the rationale expressed in his original commitment to the program at Chattahoochee, which original commitment had occurred by Order of Court on February 20, 1976. In the matter of the most recent offense which had caused the revocation of Robinson's probation, Robinson received a sentence of ten years in the Florida State Prison; however, service of that sentence was stayed pending release and discharge from the custody of the Respondent on this most immediate commitment for care and treatment in the mentally disordered sex offender program. Beginning with the October 9, 1980, hospital stay, the goals of the program have been to deal with the patient's problems concerning sexual deviation, pedophilia; alcoholism; inadequate and passive aggressive personality styles and cultural deprivation. Notwithstanding the efforts of the patient and those of the staff to deal with the underlying disorders, this success has not been complete. The treatment has been exhausted in this program and other similar programs in the system in the State of Florida, and the Petitioner still presents a danger based upon his sexual deviation and propensity to commit sexual acts involving children, in particular minor females. These determinations are reached in the face of the facts that follow. The program at Florida State Hospital has as its main focus the utilization of group therapy with adjunctive programs in recreational and occupational therapy, and this treatment regime relies heavily on a patient's self-motivation. The Respondent's Exhibit 2 is a series of clinical summaries related to the patient's performance during the course of his treatment. The most recent evaluation points out, in general terms, the Petitioner's pattern of acting-out behavior and disregard for ward policy and, more importantly his lack of motivation and progress in the therapies which are essential to success in the program. In addition, testimony was given in the course of the hearing on the part of the Petitioner's therapist and other persons affiliated with the treatment team. Lois Stevens had been the Petitioner's primary therapist from October, 1980, to January, 1981. She observed in the Petitioner indications of low self- esteem; the fact that the Petitioner was easily disappointed; that he was easily influenced by others; that he had an inability to deal with abstract feedback and a problem of allowing himself to be abused. These were matters of concern which needed to be addressed as a prerequisite to dealing with the Petitioner's sexual deviation. In effect, this was a process of identifying the problems which underlie his sexual deviation. In this connection, Stevens found that the Petitioner had the desire to do better but evidenced poor judgment and impulse control. These circumstances were aggravated by the fact that the Petitioner had and has limited intellectual ability. During this phase no intense effort was made to discuss the sex offense, molestation of a young girl. While in this treatment situation, Robinson accepted staff criticism in an appropriate way and he did improve in personal hygiene, which had been a problem initially. After a period of time it was determined that the Petitioner should be placed with a separate therapist to go forward with his treatment. From January, 1981, to July, 1981, the Petitioner had Allison Dowling as his primary therapist. In the beginning Robinson performed reasonably well and had been given some freedom of movement within the facility and was granted a position as a patient volunteer on the ward. He was beginning to cope better in the institutional environment; however, he remained reluctant to examine, in therapy sessions, the problem of his sexual deviation. Specifically, that difficulty related to his ability to deal with insight oriented therapy. He would enter into a discussion of the offense in the therapy sessions, but tended to minimize the seriousness of his offense, demonstrating marginal understanding of the etiology and maintaining factors in his deviant sexual behavior. Moreover, between sessions with the group he tended to forget what had been dealt with on the prior occasion. He had to be prompted to participate, with one exception. As established by Dowling in this sequence of the treatment, the Petitioner began to act in an inappropriate way while on the ward and was tardy for group therapy sessions. In the connection with his misbehavior on the ward, it was necessary to force the Petitioner to engage in a discussion of those matters and the act of taking away his privileges of freedom of movement and position did not promote a change in the Petitioner. He attempted to manipulate staff members about the misbehavior and to have group members in the therapy sessions accept his side of the dispute as opposed to directly addressing problems. The items of misbehavior included homosexual activity with another participant of the program and sleeping in the nude, which were contrary to hospital policy. On another occasion the Petitioner attempted to get a staff aide to take him to an unauthorized activity, in violation of ward policy. Dowling has observed little progress in the Petitioner's attempts to control his sexual misbehavior and she correctly indicates that his sexual deviance still exists and no further progress can be made in dealing with this condition. Charles Shaffer, a clinical psychologist was the primary therapist for the Petitioner from November, 1981, to January, 1982. His observations concerning the progress of the Petitioner are in accord with those of Allison Dowling. He did note that the Petitioner has shown himself to be willing to help others with their daily problems but is unwilling to participate himself, and by way of explanation Robinson states that the other patients don't understand or can't understand his problem related to the sexual deviance. Shaffer's observations establish that the Petitioner is comfortable with his life style, and hasn't indicated any desire to change that pattern. Robert Alcorn, the director of the mentally disordered sex offender program at Florida State Hospital, through his testimony indicated agreement to the effect that the treatment had been exhausted in that program without success, which is an accurate depiction. Alcorn also established that conferences related to Robinson's potential placement in affiliated sex offender programs led to the conclusion that those programs could not assist the Petitioner, ergo, treatment has been exhausted in those other facilities. The Petitioner, through his testimony, acknowledged that he had participated in homosexual activities at the hospital and had been punished by the suspension of his grounds privileges and job opportunity. Following those episodes the Petitioner indicated that he lost interest in participating in the program but did in fact participate. He acknowledged that he attended occupational therapy, as well as the primary therapy, and was tardy at times. Robinson admits that he has difficulty explaining himself and has problems with impulse control. He says he can't find himself, is tired of being a nothing. Robinson believes he does not always think before acting. Finally, he has a fear of returning to court and facing the disposition of his case. Alice Butler, a witness for the Petitioner who was a co-therapist at the time that Stevens was assigned to Robinson's case, established that earlier in the treatment Petitioner was more motivated in his participation than he has been recently. And, in fact, the Petitioner has broken the rules as recently as two weeks prior to the hearing by sleeping nude. She also observed that the Petitioner has been in the so-called "observation section" for a long time and is satisfied with his placement. (This particular section is a more restricted area than some of the other advanced wards.) Sterling George, a psychiatric aide and witness for the Petitioner from his observation finds that as a general proposition the Petitioner takes part in activities with other patients and is not a problem on the ward. Finally, Alfred Gerardo, another participant in the mentally disordered sex offender program, gave testimony. He has known the Petitioner for approximately fifteen months. He has also participated in the same group with Robinson from October, 1980, through May, 1981. His initial impressions of Robinson were not favorable, but in the last few months he has gained a better appreciation of the Petitioner. In particular, he has observed Robinson to have made improvement in terms of his willingness to he concerned about matters of education and acting-out, and in the realm of the Petitioner's appearance. From this witness's understanding the Petitioner's participation in group activity is limited and particularly so in the area of the underlying sexual problem. In summary the Respondent has exhausted all appropriate treatment for the Petitioner's sexual deviance, but that treatment has not been totally successful and the patient continues to be a sexual menace, and there is a likelihood that the Petitioner would commit other sexual crimes.
The Issue Whether Petitioner, Andrew Anthony Taylor (“Petitioner”), timely filed a petition under the Victims of Wrongful Incarceration Act, chapter 961, Florida Statutes (2016)(“the Act”); and, if so, whether Petitioner demonstrated by clear and convincing evidence, his actual innocence, thereby entitling him to monetary compensation under the Act.
Findings Of Fact Petitioner seeks compensation pursuant to the Act after serving a prison term of 25 years for the sexual abuse of his stepdaughter, C.J. The jury verdict was vacated after C.J., in 2014, recanted her accusation that Petitioner sexually abused her in 1990, when she was eight years old. The undersigned will begin with a discussion of the events in 1990, when C.J. first reported the allegation of sexual abuse against Petitioner to Dr. Valerie Rao, a rape treatment medical examiner. On the evening of March 10, 1990, C.J. was brought to the Jackson Memorial Hospital Roxcy Bolton Rape Treatment Center by her mother and grandmother, at which time C.J. came under the care of Dr. Rao. Dr. Rao obtained a detailed history from C.J., during which C.J. reported that she had been sexually abused by her stepfather, “Andrew,” at two different locations--her old house and her new house. According to C.J., the most recent sexual encounter was when she was awoken by Petitioner on “Friday night,” March 8, 1990, and told to get up and go to her mother’s bed. C.J. did so, and Petitioner then told her to take off her pajamas, which she did. According to C.J., Petitioner got on top of her, put his “private part” in her, began kissing her, and put his mouth on her “private part.” C.J. also stated Petitioner made her touch his “private part,” and that he touched her in the anal area. C.J. also stated Petitioner often put his “private part” in her mouth. C.J. also stated Petitioner told her that if she told anyone, he would kill her. After obtaining the history, Dr. Rao examined C.J. and observed multiple bruises on her right arm and thighs, and abrasions on her back and on her left breast. The bruises and abrasions were caused when C.J.’s mother beat her with a baseball bat after C.J. told her mother of Petitioner’s sexual abuse. Dr. Rao immediately reported the mother to law enforcement, and C.J.’s mother was arrested at the rape treatment center for aggravated child abuse. Dr. Rao conducted a vaginal examination of C.J. and used a colposcope to observe and document the status of C.J.’s hymen. Dr. Rao observed and documented several healed tears of the hymen, which made the opening of C.J.’s hymen bigger than it should be for a child of her age. According to Dr. Rao, C.J. did not show any natural signs of progression of the hymen tissue that might be present due to a child approaching puberty. Dr. Rao persuasively and credibly testified at hearing that C.J.’s history was consistent with her physical examination. According to Dr. Rao, the healed tears could have resulted from Respondent “trying to push his penis into her” consistent with C.J.’s history. Dr. Rao acknowledged the tears also could have been caused by a finger, a pencil, or any object that is bigger than the opening of the hymen. However, no evidence was presented at hearing indicating that a finger, pencil, or any other object was placed in the opening of C.J.’s hymen. Dr. Rao further acknowledged there was no physical evidence that she could discern or collect that identified Petitioner as the assailant in this case. However, in 1990, obtaining DNA samples and the gathering of other types of physical evidence in an effort to specifically identify perpetrators of sexual abuse were not as advanced and reliable as it is today. Following Dr. Rao’s examination on March 10, 1990, C.J. was separated from her mother, and her mother no longer had custody of her. C.J. lived with her maternal great grandmother, and without her mother in her life, until she was 16 years old. On March 27, 1990, Mercy Restani, a trained interviewer who was employed by the Dade County Children’s Center within the office of the State Attorney, interviewed C.J. at the children’s center. C.J. provided a detailed history to Ms. Restani. C.J. told Ms. Restani that the sexual abuse by Petitioner happened in the old house and at the new house. C.J. told Ms. Restani that Petitioner would get her out of her bedroom and take her into her mother’s bedroom. C.J. told Ms. Restani that Petitioner would touch her “pocketbook” (the child’s word for a vagina) with his “private” (the child’s word for penis). C.J. told Dr. Restani that Petitioner got on top of her, that he moved very fast, and that it hurt when he did so. C.J. said Petitioner touched her breasts, put his mouth on her “pocketbook,” and his “private” in her mouth. C.J. also told Ms. Restani that Petitioner told her he would kill her if she told anyone. Ms. Restani asked C.J. if she had told her mother or anyone about what had happened to her. C.J. told Ms. Restani that she did not tell her mother because she was afraid. C.J. told Ms. Restani that her mother “had been asking her for several days if Andrew had been messing with her.” When C.J. eventually told her mother what had happened, C.J. said her mother beat her with a baseball bat. On April 3, 1990, C.J. was interviewed by a clinical forensic psychologist, Manuel E. Alvarez, Ph.D. The purpose of the interview was to assess C.J.’s current mental status and emotional therapeutic needs. According to Dr. Alvarez, C.J. was able to distinguish between the truth and a lie. C.J. had the intelligence to comprehend what had happened to her, to be able to relate it to others, and she was competent to testify. C.J. provided a detailed history to Dr. Alvarez. Dr. Alvarez observed that C.J. was able to provide a synopsis of her living arrangements at the time of the incidents. C.J. identified her stepfather, “Andrew,” as the perpetrator of the sexual abuse. C.J. told Dr. Alvarez it occurred at the old house and current house. C.J. told Dr. Alvarez it occurred when Petitioner would wake her, take her into the room, and tell her to get onto the bed. C.J. was reluctant to verbally tell Dr. Alvarez what Petitioner did to her, but C.J. wrote it down on a piece of paper (Petitioner’s Exhibit 4) in her own handwriting: He would get on me. He would start moving fast on me. He would take out his private part. On my private part and In my mouth. C.J. also told Dr. Alvarez that after the incidents, Petitioner threatened to kill her if she told anyone about it. On April 5, 1990, C.J. executed an affidavit, attesting to the fact of her name, that she was eight years old, that she lived with her mother and Petitioner at a specific street address in Dade County, Florida, and that: Early in the morning on Friday, March 9, 1990, Andrew woke me up and took me to his bedroom. Andrew told me to take off my panties. He touched my breasts. He put his private part into my pocketbook. It hurt. He kissed me on my mouth and on my pocketbook. He had done this before. He told me he would kill me if I told. My mother asked me if anyone was messing with me. For several days I wouldn’t tell her. When I did tell her what Andrew did, she beat me with a baseball bat. In August 1990, C.J.’s mother entered a plea of nolo contendere to the offense of aggravated child abuse against C.J. She was adjudicated guilty, sentenced to community control, and ordered not to have any contact with C.J. until approved by the court. On October 22, 1990, C.J. gave a videotaped deposition in Petitioner’s criminal case, in which she provided details of the sexual abuse by Petitioner. In the deposition, C.J. described how Petitioner woke her up, took her to her mother’s room, touched her “pocketbook” with his mouth, and placed his “wee-wee” in her “pocketbook.” C.J. testified he moved his body around while putting his “wee-wee” in her “pocketbook,” and that it hurt when he did so. She testified that on another evening, Petitioner woke her up again, took her to her mother’s room, and touched her “pocketbook” with his hand moving up and down as he did so. She testified it happened at the new house and at the old house. Petitioner’s criminal jury trial was held in March 1991, before the Eleventh Judicial Circuit in and for Dade County, Florida, in the case of State of Florida v. Andrew Anthony Taylor, Case No. F90-009928. At Petitioner’s criminal trial, C.J. testified via closed circuit television that Petitioner came to her bedroom, woke her up, and took her to her mother’s room. C.J. testified that she was wearing pajamas and panties and that Petitioner removed them. Using anatomically correct dolls, C.J. showed the jury that Petitioner touched her vagina with his hand and put his mouth on her breasts. She further indicated that Petitioner put his mouth on her vagina and demonstrated how he put his penis in her mouth and vagina. C.J. testified that it hurt when Petitioner placed his penis in her “private part.” She testified she did not tell her mother about this that night because Petitioner said he would do something bad to her. C.J. testified that another incident occurred that same week where Petitioner did the same things to her. C.J. also testified Petitioner put something “greasy” on his “private part” before he put his “private part” in her “private part.” C.J. indicated Petitioner’s sexual abuse of her also occurred at the old house. C.J. testified that when she told her mother about Petitioner’s sexual abuse of her after the last incident, her mother became upset and hurt her. C.J. testified that when she told Dr. Rao she got all the bruises when her mother hit her with a baseball bat, it was the first time her mother ever hit her with a bat. C.J. testified she has not been able to live with or have contact with her mom since her mother hurt her. C.J.’s mother did not testify at the criminal trial against Petitioner because she had an open warrant for her arrest at the time for violating her community control. Petitioner testified at his criminal trial. Although Petitioner denied he sexually abused C.J., he acknowledged that he was C.J.’s stepfather; he married C.J.’s mother in 1989; he had a son with C.J.’s mother in 1998; he was having an extramarital affair with another woman; and while he divided his time between Maryland and Miami because of work, he was sleeping in the same home as C.J. during the timeframe that C.J. indicated she had been sexually abused by him. Following the criminal trial, Petitioner was convicted on March 15, 1991, of three counts of capital sexual battery and one count of lewd and lascivious behavior for the sexual abuse of C.J. Petitioner was sentenced to life in prison on the three capital offenses. The judgment and sentences were per curiam affirmed on appeal in Taylor v. State, 610 So. 2d 644 (Fla. 3d DCA 1992). After reporting the incidents of sexual abuse, C.J. went through counseling two times per week for several years. At no time did C.J. tell any therapists that she was not sexually abused by Petitioner. In 2006, C.J. was approached at her grandmother’s home by a male private investigator for Petitioner. The investigator wanted to ask C.J. questions about what happened with Petitioner, but C.J. refused to speak with the investigator. In either late 2013 or early 2014, C.J. was again approached by a private investigator for Petitioner, this time a female who came to C.J.’s place of employment (“Walmart”). The investigator wanted to ask C.J. if anything had happened with Petitioner. In response, C.J. immediately told her “no.” The investigator then gave C.J. a card, and C.J. told the investigator she would call her in couple of weeks. On February 17, 2014, C.J. executed an affidavit formally recanting the accusation that Petitioner sexually abused her when she was eight years old. In this affidavit, C.J. asserted now, at the age of 32, that she made the allegation because her mother was either drunk or high on drugs who would ask her “if anybody touched me inappropriately.” C.J. asserted that late one night after telling her mother that nobody touched me, her mother beat her with a baseball bat and started yelling, “did Andrew touch you.” C.J. asserted that after telling her mother no, her mother began to beat her and beat her for hours. C.J. asserted that after an extensive beating, she told her mother that “Andrew” had touched her so that she would stop beating her, and after telling her that Andrew touched her, the beating stopped. However, by this time, C.J. had developed a close relationship with her half-brother Andrew Taylor, Jr. C.J. further asserted: A while back, I began to talk with my half- brother, Andrew Jr., and would see him interacting with his own son. This started me thinking about what I had done and only I knew the real truth that Andrew was innocent. My conscience started bothering me every time I would see Andrew, Jr. playing and interacting with his son and it got to the point where I couldn’t sleep and hardly eat. I finally called my half-brother, Andrew Jr., and told him I needed to meet with him and explain what had happened regarding his father. I told Andrew Jr. that his father never touched me or bothered me sexually and that I was so sorry for his dad not being in his life because of what I did. I asked Andrew Jr. to forgive me and he agreed. I also asked Andrew Jr. what I should do and who I could write in order to correct this situation. Investigator Jeannie Rogers came to see me a few months ago and spoke to me about coming forward. I have finally gotten the courage to stand up and do what is right. On June 23, 2014, Petitioner filed a Motion for Post- Conviction Relief Based on Newly Discovered Evidence in Case No. F90-009928. The newly discovered evidence was C.J.’s recantation of the sexual abuse allegation against Petitioner. On April 2, 2015, an evidentiary hearing was held on the motion before Circuit Court Judge Diane Ward. At the hearing before Judge Ward, Petitioner presented the live testimony of C.J., who testified she made up the allegation that Petitioner sexually abused her because her mother beat her with a baseball bat to make her provide a false allegation against Petitioner. C.J. testified she told her mother Petitioner sexually abused her because she wanted the beating to stop. However, C.J. also testified when she told her mother that Petitioner sexually abused her, the beating did not stop, and her mother continued to beat her with the baseball bat for not telling her about the sexual abuse sooner. During the hearing before Judge Ward, C.J. acknowledged she provided specific details of sexual abuse by Petitioner to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her prior testimony in the underlying criminal proceedings involving Petitioner. C.J. was asked how she could have had such knowledge of sexual activity as an eight year old in order to provide the details that she did to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her testimony in the underlying criminal proceedings. In response, C.J. testified she came up with the details by watching cable television and walking in on her mother and Petitioner while they were having sex. At the hearing before Judge Ward, Respondent presented the live testimony of C.J.’s mother, who acknowledged she was a cocaine addict in March 1990. C.J.’s mother testified on direct examination that she recalled an incident in which she had returned home one night on March 5, 1990, and found C.J. lying in bed with her hands covering her front “private parts.” She testified that she could smell a “sexual scent” in the room and that she asked C.J. “what was wrong.” She testified C.J. did not indicate anything was wrong, but she was still suspicious something was wrong because of the sexual odor in the room. C.J.’s mother testified that due to this suspicion, she asked C.J. a second time on March 9, 1990, if “anyone had been messing with her.” According to C.J.’s mother, C.J. indicated this time that Petitioner “[h]ad been bothering her,” which meant that he had been sexually molesting her. C.J.’s mother testified on direct examination that when C.J. began telling her specific details of the abuse by Petitioner, she became irate and beat C.J. with a baseball bat. However, C.J.’s mother’s testimony as to when she began to beat C.J. with a baseball bat is inconsistent. C.J. and her mother acknowledged their relationship over the past several years has been good, and there is no current animosity between them. At the conclusion of the evidentiary hearing, Judge Ward orally announced her ruling that C.J.’s change in testimony is newly discovered evidence. In reaching this conclusion, Judge Ward specifically found C.J.’s testimony “reliable and credible.” Judge Ward commented she “had the opportunity to view her, and observe her during the testimony, and as well as consider any motive that she had for the recantation of her testimony.” On the other hand, Judge Ward specifically found the live testimony of C.J.’s mother to be “incredible.” In reaching this conclusion, Judge Ward commented that at the time of the events, she was by her own admission using drugs, and she had a poor recollection of the events, which is attributable to her drug use rather than to the passage of time. Judge Ward further stated: There were multiple lengthy pauses between the attorney’s questions and her answers where she seemed to be searching in her memory for answers. The Court observed that she seemed very hesitant and unsure of her own recollection of the events, and I further find that this is attributable to her extensive drug use, and that, and her intoxication on drugs at the time that this occurred. With regards to the beating, but with a baseball bat, although at some times she did acknowledge, did state that she beat her child with the baseball bat after she implicated the Defendant in the sexual assault, there were times that she said that she couldn’t recall and it could have been before she implicated her. And this is the most damaging testimony you could possibly have given the fact that there was no direct evidence otherwise implicating the Defendant as the person who sexually assaulted her. She did have six healed tears on her hymen which could have occurred at any time, and been caused by any other person. There was no DNA, blood evidence, semen, eyewitnesses, or a confession, so the only evidence that the State had, or the strongest evidence that the State had was the victim’s testimony, which was obviously obtained through a beating with a baseball bat by her mother when she was a very tiny child. The pictures of her are very sad at such a young age. There is no doubt that if a jury were to hear that the victim, hear from the victim that the Defendant was not the person that sexually abused her, and that she lied because her mother beat her with a baseball bat when she was eight years old, would have produced an, could have, would have produced an acquittal on retrial, and that the Defendant would probably be acquitted on retrial, so based on the foregoing I’m going to grant the motion for post-conviction relief. We need to schedule it for trial now. I think it has to be set in ninety days; isn’t that correct? Okay, I’ll answer my own question yes. Pet. Ex. 14, pp. 245-247. On April 2, 2015, a written order was entered vacating the finding of guilt, judgment, and sentence, and a hearing was scheduled for April 10, 2015, at which time a new trial date would be set. On April 10, 2015, the State announced a nolle prose of all criminal charges against Petitioner. On June 30, 2015, Petitioner timely filed a Petition to Establish Wrongful Incarceration in Case No. F90-009928. On July 31, 2015, Respondent filed a response contesting the petition. After the filing of the initial petition, a grand jury returned an indictment recharging Petitioner for the same crimes. C.J. was notified of the grand jury proceeding, but she did not appear or request a continuance. After the criminal case was re-filed, Respondent and Petitioner were unable to reach a settlement. On December 12, 2016, the second set of charges were nolle prossed. On January 25, 2017, Petitioner filed an amended petition. On March 17, 2017, pursuant to section 961.03(4)(a), Judge Ward issued an “Order Finding That Defendant Was a ‘Wrongfully Incarcerated Person’ and Is ‘Eligible for Compensation’ Pursuant to Section 961.03, Florida Statutes.” Judge Ward held that the petition was timely filed and that Petitioner met his burden of establishing, by a preponderance of the evidence, his “actual innocence” of the charges. Central to Judge Ward’s conclusion that C.J.’s recantation is reliable and that Petitioner met his burden of establishing his actual innocence by a preponderance of the evidence is that she had the opportunity to observe C.J. and her mother’s demeanor when they testified live at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. Judge Ward’s findings are largely based on credibility assessments of C.J. and her mother based on observations of their demeanor while testifying. In concluding that Petitioner established his “actual innocence” by a preponderance of the evidence, Judge Ward relied on the evidence presented at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. In the instant proceeding, however, Petitioner failed to meet his burden of establishing his actual innocence by clear and convincing evidence. Whether Petitioner is actually innocent turns on whether Petitioner presented clear and convincing evidence that C.J.’s recantation is reliable. The evidence presented in this case does not clearly and convincingly establish the reliability of C.J.’s recantation. To begin with, C.J. consistently provided details about sexual conduct perpetrated against her by Petitioner in her visits with Dr. Rao, Ms. Restani, and Dr. Alvarez, and in her prior deposition and trial testimony in the underlying criminal proceeding against Petitioner. C.J. gave details about how Petitioner would wake her up and take her to another room. She gave details about oral sex by Petitioner on herself and that she performed on Petitioner. She gave details about Petitioner using a lubricant on his penis. She gave details about how he would place his penis in her vagina and move up and down really fast. She said it hurt when he did so. Dr. Rao persuasively and credibly testified that the injuries to C.J.’s hymen were consistent with her history. C.J. consistently stated in 1990 and 1991 that her mother beat her with a baseball bat after she told her of the sexual abuse by Petitioner. Over 20 years later, C.J.’s story changed, and she stated that her mother beat her with a baseball bat before she told her of the sexual abuse by Petitioner. In her recantation affidavit, C.J. stated that after telling her mother that Petitioner touched her, the beating stopped. However, in the hearing before Judge Ward, C.J. testified that her mother continued to beat her with the baseball bat after she told her about the abuse for not telling her about the abuse sooner. From March 10, 1990, when C.J. was removed from her mother until she was 16 years old, C.J. had many opportunities to come forward and recant the allegation of abuse against Petitioner. During this time, there was no reason for C.J. to fear her mother because her mother was not in C.J.’s life. Subsequently, C.J. and her mother developed a good relationship. However, Petitioner waited almost 24 years to recant. C.J. recanted after developing a relationship with her half-brother, Andrew Taylor, Jr. When Andrew Taylor, Jr., turned 18 years old, he began a relationship with his father, Petitioner. Prior to recanting, C.J. regretted her half-brother did not get to spend quality time with Petitioner because Petitioner was in prison. C.J.’s development of a relationship with her half-brother and her desire that he have a strong relationship with Petitioner could be a motive for her recantation. C.J. did not appear before the grand jury, she did not request a continuance, and she was not called as a witness at either of the hearings in the instant matter. The undersigned lacked the opportunity to observe C.J.’s demeanor because she was not called to testify as a live witness. However, the undersigned had the opportunity to observe C.J.’s demeanor while testifying in her videotaped deposition in 1990, at which time she testified credibly and persuasively to facts demonstrating that Petitioner sexually abused her. Petitioner was called as a witness at the August 8, 2017, hearing, at which he was simply asked on direct examination if he ever molested C.J., to which he responded no. Petitioner’s testimony at the hearing was unpersuasive.
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, James Guinn, 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. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on January 15, 1981. A final hearing in this cause was scheduled for March 3, 1981, but was not conducted until April 2, 1981, to allow Petitioner to secure representation. In the course of the final hearing the Petitioner testified in his own behalf and called Michael Pomeroy, Staff Psychologist in the forensic service at the Florida State Hospital as his witness. The Respondent called as witnesses Michael Denny, Staff Psychologist in the forensic service at the Florida State Hospital and Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital. Respondent's Exhibit No. 1 was admitted as evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Bradford County, Florida, and the authority of Chapter 917, Florida Statutes (1977). Beginning May 22, 1978, through the present, Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of 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 made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The Petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period. His condition has been diagnosed as sexual deviation, pedophilia. This condition involves the use of young children as a sexual object to reach sexual gratification. In this instance, the Petitioner has been placed in the hospital unit for his involvement with a young child. During the Petitioner's stay, his most remarkable progress has been made in the area of adjunctive therapy, namely vocational education and rehabilitation and occupational therapy. He has learned the "trade" of small engine repair mechanic and has made sufficient progress to be marketable as a small engine repairman. In addition, he has worked as a voluntary laborer and has made progress in leather occupational therapy. As stated before, the primary treatment modality is group therapy, which involves group discussion between six to ten participants in the program and their primary therapist. These sessions meet two times a week for an hour. The members of the groups are persons who are experiencing similar problems, and the idea is to have those group members confront each other to divulge their problems and begin to correct those difficulties. By July, 1980, the treatment team, in conjunction with the Petitioner had overcome the Petitioner's difficulty with impulse control to a sufficient extent that the Petitioner was willing to discuss his past problems with his family and perhaps was ready to create an atmosphere of trust necessary to consider his underlying problem with sexual deviation. At that juncture, he was moved from his group conducted by a female therapist to a group with a male therapist. From that point forward, notwithstanding attempts to have the Petitioner deal with his problem in some detail, the Petitioner has remained superficial about his condition. The Petitioner is guarded and closed about his past and, to some extent, about his future desires. The Petitioner has been unwilling to examine his inner feelings to gain the necessary insight about his problems to develop an alternative coping mechanism for those times when he is confronted with the tendency to be sexually deviant. Without that insight, his progress has been minimal. In the group sessions, the Petitioner has found it easier to help others than to help himself. In the view of his silence, the therapist has been required to treat the outward manifestation of symptoms as opposed to treating the Petitioner's restatement of those symptoms. There has been some success in teaching the Petitioner assertion skills, that is to be assertive in exchanges as opposed to aggressive. The Petitioner intellectually understands the difference between expressing thought as opposed to expressing feelings, but he has had difficulty perceiving this emotionally. Guinn is at the place in the program which is described as a latter phase and in that phase, self motivation is essential. At the November 5, 1980, staffing to consider the question of whether the treatment has been exhausted, when confronted with questions about his sexual problem, the Petitioner was guarded, vague and evasive. When he received a negative report and an indication that it was the intention of the staff to recommend his return to court for reason of exhaustion of treatment, the Petitioner refused to attend the group therapy sessions until December 8, 1980. His return to the sessions was promoted by conversation with a staff psychologist. In January, 1981, he was moved to a new group with a different group therapist and has appeared at ease in the group therapy sessions recently held, but has failed to take the initiative and still appears superficial in his efforts to address his problem. At the November 5, 1980, staff conference there was one positive sign in that the Petitioner indicated that he no longer fantasizes about young boys in a sexual way but now fantasizes about women; however, he was unable to say when this change of attitude had occurred and it is, therefore, difficult to know how significant this statement would be, especially in view of the fact that his participation in the group therapy sessions is shallow. In addition to his improverent in impulse control, he has improved in his ability to relate to other persons on a superficial level. Guinn still has problems relating to persons on an interpersonal level. An example is his ability to relate facts about the crimes for which he has been placed in the program, as contrasted with his inability to state why he did those crimes. The Florida State Hospital has nothing further that they can offer the Petitioner in dealing with his sexual deviation and on December 11, 1980, the program administrators of the various sex offender programs within the State of Florida discussed the Petitioner's case and concluded that treatment had been exhausted in the entire system administered by the Respondent. The Petitioner wishes to stay in the program and feels that the program has a lot to offer and that he can learn more from the program. He feels that his problem of opening up in the group therapy sessions is associated with his fear of what people will think of what he has done. Nonetheless, he states that he would discuss his situation now, although he has not done so in the past. He feels that he has his problem under control and can go out and not commit crimes, although he still needs help for his condition because he is not completely under control. He states that he is willing to cooperate in further treatment. According to the Petitioner, he has not talked in the group sessions lately in view of the negative report in the staff conference of November 5, 1980.
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 James Guinn, and that said James Guinn be returned to the committing courts for farther disposition. DONE and ENTERED this 14th day of April, 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 14th day of April, 1981. COPIES FURNISHED: Claude Arrington, Esquire Assistant Public Defender Second Judicial Circuit 211 East Jefferson Street Quincy, Florida 32351 Gerry Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, Christopher S. Allsup, 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. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on December 10, 1980. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until April 2, 1981, to allow Petitioner to be examined by an independent physician. In the course of the final hearing the Petitioner testified in his own behalf. The Respondent called as witnesses Alison Dowling, Staff Psychologist in the forensic service at the Florida State Hospital and Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital. Respondent's Exhibit No. 1 was admitted as evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of court and the authority of Chapter 917, Florida Statutes (1977). Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of 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 made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The Petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period. His condition has been diagnosed as antisocial personality. Persons who carry this diagnosis have a consistent pattern of antisocial behavior involving the violation of rights of others. In the Petitioner's case, this has lead to offenses of breaking and entering and other forms of theft, together with sexual crimes, substance abuse and fighting. In spite of the efforts at treating his condition, the Petitioner has made no significant progress and continues to be dangerous. The Petitioner has participated in group therapy, recreational therapy, vocational rehabilitation and band and music. The Petitioner has done well in recreational therapy having been interested in athletics as a young man. In addition, he has made progress in vocational rehabilitation in the typing and accounting courses which he has participated in and has shown satisfactory interest in band and music. Notwithstanding the progress in these areas, his progress in group therapy, the primary treatment modality, has not been satisfactory, and without progress in that area, his achievement in the adjunctive therapies will not lead to a satisfactory result related to his underlying diagnosis. He simply has not used the group therapy sessions as a vehicle for self discovery which is needed to identify his problems and to clarify the deficiency in his personality. In the group therapy sessions, he has presented minimal information about himself and when asked to discuss his problems, he has been guarded and occasionally hostile. Without opening up, it has been impossible to identify the reason for his sexually deviant behavior which is a symptom of his underlying difficulty. The Petitioner was referred to Alcoholics Anonymous within the Hospital unit, but he has not participated in that program in a significant way. This program would have assisted the Petitioner in view of his problem with substance abuse. In the summary of 1980, an informal staffing conference was held to discuss the Petitioner's progress and he was told that the staff did not feel that he was participating freely and that he was not discharging sufficient information to achieve progress. The Petitioner did not agree and felt that he had been doing what was necessary. In an effort to try to assist the Petitioner, the staff gave him another chance before they decided that treatment had been exhausted. In addition, an agreement was made with him in which the Petitioner was to refrain from acting out; to be more open in group therapy; to write nightly self-reports to the therapist and to learn to deal with authority figures. The effort by staff to assist the Petitioner in achieving progress was not successful and on November 18, 1980, in the formal staff session, it was determined that the staff had exhausted all available treatment for the patient. It was also determined that he still met the definition of sex offender. (It should be noted that some attempts have been made to deal with the patient through individual therapy, but this form of treatment is not the most beneficial approach with a person who has an antisocial personality and who tends to be manipulative with his therapist.) On January 26, 1981, the Petitioner was presented to a screening committee constituted of the program administrators in the various sex offender programs within the State of Florida, and it was the determination of those individuals that treatment had been exhausted for the Petitioner in any program that might be available in the State of Florida. In summary, although the Petitioner has made improvement, it is not sufficient enough to cause the Respondent to continue to exert effort in remedying his problems. He continues to be guarded and withdrawn and to impart little information about himself. The Petitioner feels that in his twenty-six (26) months stay in the program, that he has made progress in the area of impulse control and judgment and accepting authority figures and acting more responsibly. He feels that he used to be "hot tempered" and easily intimidated and involved in lots of fights. In this program he has been in only one fight. If allowed to remain, the Petitioner says he could improve and could work in the future, notwithstanding, problems being open around others and a tendency to hesitate in dealing with others. He feels that he has accepted the responsibility for his criminal act and is not proud of it and is in fact ashamed of what he has done and could control himself in the future. His feeling of guilt has slightly placed a burden on his discussing the problem, according to the Petitioner. As he states it, he can relate to the group what happened, he can not relate why he did the act. Finally, the Petitioner says that the group sessions have been beneficial and although he has not "put" his "all in it" he has progressed.
Recommendation Based upon the foregoing Findings of Fact and Conclusion 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 Christopher S. Allsup, and that said Christopher S. Allsup be returned to the committing court for further disposition. DONE and ENTERED this 14th day of April, 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 14th day of April, 1981. COPIES FURNISHED: David T. Young, Esquire Post Office Box 563 Rockledge, Florida 39255 Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue The issue to be determined is whether Respondent's plea of nolo contendere to the crime of Aggravated Assault relates to the practice of or ability to practice opticianry, and, therefore, constitutes a violation of section 484.014(1)(q), Florida Statutes, as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact Stipulated Facts At all times material to this proceeding, Respondent, David Allen Bressette, L.D.O., was a licensed optician within the State of Florida, having first been issued license number DO 3755 on or about May 1, 1992. Respondent's address of record is 4545 Sweet Bay Avenue, Melbourne, Florida 32935. On or about November 29, 2017, the Brevard County Sheriff's Office arrested Respondent for 10 counts of Possession/Viewing Materials Depicting Child Sexual Conduct, in violation of section 827.07(5), Florida Statutes (2017). On or about March 2, 2018, Respondent was charged with four counts of Possession/Viewing Materials Depicting Child Sexual Conduct, in violation of section 827.07(5), Florida Statutes (2017), in Case No. 05-2017-CF-052816- AXXX-XX. On or about March 20, 2019, Respondent pled nolo contendere to one count of Aggravated Assault, a third-degree felony, in Case No. 05-2017-CF- 052816-AXXX-XX. The ability to practice or the practice of opticianry requires interacting with children built on trust and maintaining social boundaries. A special condition of Respondent's order of probation for his plea to the crime of Aggravated Assault requires that Respondent have “no unsupervised contact with a child under the age of eighteen (18) unless supervised by the child's parent or legal guardian or by a court order.” Evidentiary Findings of Fact Respondent owned a practice with Dr. Ronald Ryan, an ophthalmologist. Dr. Ryan sold his interest in the practice in 2016 to Dr. David Hendrix. Respondent sold his interest in April 2018. He has not practiced opticianry since that time. Respondent intends to resume practicing opticianry when this case is resolved. During the investigation of the complaint that led to Respondent’s arrest and his ultimately being charged with four counts of Possession/Viewing Materials Depicting Child Sexual Conduct in Case No. 05-2017-CF-052816-AXXX-XX, Respondent submitted to a recorded interview. In the interview, Respondent alluded to the possibility of his having used his devices to view images of girls in their mid-teens -- 14 or 15 years of age -- though his description of what may have been on his devices was insufficient, in itself, to support a finding that they were unclothed or engaged in sexual conduct. Nonetheless, Respondent admitted to masturbating to, and deriving sexual gratification from those images. At the conclusion of the interview, Agent Kersey seized Respondent’s iPad and iPhone. A warrant was subsequently executed at Respondent’s home where other devices were seized. Agent Kersey testified that he personally observed images of what he described as child pornography, depicting sexual acts or genitalia of what he believed to include pre-teen juveniles, retrieved from Respondent’s electronic devices. Agent Kersey’s employment since 2014 as an agent for the Special Victims Unit, charged with investigating, inter alia, child abuse, child sex crimes, and possession of child pornography, provides weight to his testimony that the images were of juveniles, and his testimony is accepted. Agent Kersey prepared a Case Supplement Report dated January 2, 2019, in which he provided a more detailed description of the images he observed. His descriptions are substantiated by his testimony, and are sufficient to support a finding that the images retrieved from Respondent’s electronic devices were of under-aged girls engaged in sexual acts or exposing their genitalia. Respondent argues that, as a matter of law, the crime to which he pled nolo contendere, Aggravated Assault, is not a “lesser included offense” to the crime of Possession of Material Depicting Sexual Conduct by Child. He further argues that he did not commit the crime of Aggravated Assault: i.e., there was no intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent, involving a deadly weapon without intent to kill. See §§ 784.011 and 784.021, Fla. Stat. The Court Minutes that accompanied Respondent’s plea of nolo contendere to one count of Aggravated Assault in Case No. 05-2017-CF- 052816-AXXX-XX, including the Judgment/Order of Probation and the Plea Offer accepted by Respondent, establish the parameters under which Respondent understood and accepted his plea agreement. The Court Minutes establish that the charge of Possession of Material Depicting Sexual Conduct by Child was “Reduced” to Aggravated Assault. The Court Minutes further provide that “[t]he Defendant withdrew the previously entered plea of not guilty,” and that “[t]he Defendant entered a plea of nolo contendere to the lesser included offense of AGGRAVATED ASSAULT.” There are countless reasons why a person would chose to accept a plea to a crime, not all of which constitute a direct expression of culpability. Nonetheless, regardless of whether Aggravated Assault is a “lesser included offense” to the crime of Possession of Material Depicting Sexual Conduct by Child, his plea, made in open court and with representation of counsel, was made with the intent that it be accepted as a lesser included offense. The plea was accepted by the circuit court on those terms. The Court Minutes demonstrate the link between the offense to which he pled, and the offense for which he was charged. The terms of Respondent’s probation included a number of Special Sex Offense conditions in addition to that identified in the Stipulated Facts. For example, the terms of probation included a psycho-sexual re-evaluation and, if recommended by the re-evaluation, “participation in and successful completion of a sex offender treatment program with qualified practitioners specifically trained to treat sex offenders”; annual polygraph examinations by a polygrapher trained in the use of the polygraph “for the monitoring of sex offenders” and for the purpose of obtaining “information necessary for risk management and treatment”; a restriction on accessing materials “that are relevant to the offender’s deviant behavior pattern”; and restrictions against distributing candy to children at Halloween, dressing as Santa Claus or the Easter Bunny “or other costume to appeal to children,” entertaining at children’s parties, or visiting schools, child care facilities, parks, and playgrounds. Section 120.569(2)(g) allows for the consideration of “evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs” in a proceeding under chapter 120. The terms of the plea and of the terms of probation, and Respondent’s agreement with those terms, are admissible and persuasive evidence that the crime to which Respondent pled nolo contendere is one that supports a finding that Respondent poses a sexual threat to children. Dr. Aeh testified that opticians operate from a position of trust, and that there is an expectation of professionalism and good judgment on the part of persons holding a license to practice opticianry. As stipulated by the parties, opticianry requires interacting with children built on trust and maintaining social boundaries. Upon her review of the police reports and court documents related to Respondent’s crime, Dr. Aeh opined that the acts described therein evince an erosion of the interests of trust and safety between the healthcare provider and the patient. Although she did not state that Aggravated Assault, per se, affects the ability to practice opticianry, when coupled with the evidence that the crime was a direct offshoot of child pornography, she had no hesitation in opining that Respondent’s crime did affect the ability to practice opticianry. Under the specific facts of this case, including the circuit court’s minutes demonstrating that the judgment of Aggravated Assault and the conditions of probation related to the charge of Possession of Material Depicting Sexual Conduct by Child, the evidence clearly and convincingly demonstrates that Respondent’s plea of nolo contendere to Aggravated Assault relates to his ability to practice opticianry.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Opticianry, enter a final order: determining that Respondent violated section 484.014(1)(q); suspending Respondent’s license for a period of 60 months, to run from the March 20, 2019, date of his Order of Probation in Case No. 05-2017- CF052816-A in the 18th Judicial Circuit Court in and for Brevard County, Florida; placing Respondent’s license on probation for a period of 60 months, to commence upon the expiration of the suspension, subject to such conditions as the Board may specify, including requiring Respondent to submit to treatment or to work under the supervision of another optician as authorized by rule 64B12-8.020(7)(d); and imposing an administrative fine of $750.00. DONE AND ENTERED this 27th day of October, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2020. COPIES FURNISHED: Rose L. Garrison, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Douglas D. Marks, Esquire Douglas D. Marks, P.A. Post Office Box 33790 Indialantic, Florida 32903 (eServed) Alexander Ciupalo, J.D. Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Janet Hartman, Interim Executive Director Board of Opticianry Department of Health 4052 Bald Cypress Way, Bin C-08 Tallahassee, Florida 32399-3257 (eServed) Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
