Findings Of Fact At all times pertinent to this proceeding, Respondent held Class "D" Security Officer License Number D00-26960 and Class "DI" Security Officer Instructor License Number DI89-00304. Both licenses were duly issued by Petitioner pursuant to the provisions of Chapter 493, Florida Statutes. Respondent has held his Class "D" license since 1976 and has held his Class "DI" license since 1989. Respondent has no previous record of a felony or misdemeanor offense and was, at the time of the formal hearing, working at an adult community condominium complex as a security guard. Officer Charles Wharton is a detective with the Fort Pierce Police Department who was, at the times pertinent to this proceeding, assigned to the juvenile division. T.G. is a female who was eleven years of age as of July 1993. F.S. 1/ is a female who was fourteen years of age as of July 1993. Both F.S. and T.G. were described by Officer Wharton as appearing their stated ages. Both of these girls were from what Officer Wharton referred to as "Fort Pierce's ghetto" and both were described by Officer Wharton as being "street wise". On or about July 1, 1993, Respondent paid T.G. and F.S. to have sexual relations with him at his house in Fort Pierce. The sex with F.S. included the penetration of her vagina with his penis. The sex with T.G. included her having oral contact with his penis. Officer Wharton questioned Respondent and read to him his Miranda rights. Respondent waived his Miranda rights and admitted to Officer Wharton that he had paid these two girls to have sex with him as described above. Officer Wharton referred this matter to the State Attorney's Office, which subsequently dismissed all charges against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and the conclusions of law contained herein, imposes an administrative fine in the amount of $1,000, suspends Respondent's licensure for a period of three months, and thereafter places Respondent's licensure on probation for a period of one year. DONE AND ENTERED this 10th day of November, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1994.
The Issue Whether petitioner suffered sexual harassment for which respondent is answerable, or whether, on account of her sex, respondent discriminated against her by paying her unequal wages, or whether, in terminating her employment, respondent retaliated against her on account of statutorily protected activity?
Findings Of Fact In April, of 1982, the year after her 19-year marriage to a Mr. Powell, whose surname she originally kept, came to an end, petitioner Gloria Patricia Hord, as she has been known since her remarriage in August of 1984, began work for respondent Bell Aerospace Textron, which has since become the Textron Marine Systems Division of Textron, Inc. (Textron). A defense contractor that builds landing craft air cushion vehicles and trains Navy personnel to operate them, Textron employs perhaps 130 persons in Panama City alone. Textron has a written policy against sexual harassment by or of its employees. As Textron's director of logistics at its Panama City facility, George Gust Alepakos, told the petitioner she was hired on April 3, 1982. Robert L. Ormsby and Albert Eugene "Bud" Small, the supervisor of inventory control who, as her immediate supervisor, shared an office with her when she began, had already interviewed her. Bell hired her as a clerk, general class III in labor grade N-6. The duties of general class III clerks are: Under general supervision, performs a variety of clerical work, where there is individual responsibility for the accuracy and completeness of important records and where decisions within the limits of policies or rules are required. Performs duties such as or similar to the following: supervises and works with a small group of clerks; sets up and maintains record systems of a widely varying nature, including secret or confidential material or information; prepares and issues reports as required; contacts other personnel as necessary in maintaining accurate records; reads reports, correspondence, publications, etc., and abstracts therefrom information pertaining to a particular subject; may perform miscellaneous duties relate dot office work, such as filing, operating various machines, etc. (sic). Respondent's Exhibit No. 23. According to Bell's job description, "demonstrated supervisory ability", is a desirable qualification for general class III clerks. In addition to processing receipts and keeping inventory logs, Patty Powell, as her co-workers then called her, typed and did other secretarial chores for Textron. She worked in a trailer which housed other offices and other workers, including Carol Bjorgan, Robert L. Ormsby, Monica Mitchell, Mike Pate, Mike Smith, Betty Brandon, and George Alepakos, to whom Mr. Small reported. Mr. Alepakos was in the adjoining office. Witnesses described Mr. Alepakos as personable, fun loving, happy go lucky, warm, friendly, outgoing, talkative, loud, sometimes grouchy, displaying a temper at times without being a screamer, dedicated, conscientious, a hard worker and a firm manager. He looked at the hearing to be in his sixties. The time Ms. Powell told him he reminded her of her grandfather, he said she had hurt his feelings. One day as Ms. Powell, then 36 years old, was typing, Mr. Alepakos stood behind her and placed his hands on her shoulders, watching her finish a memorandum. Mr. Alepakos invited Ms. Powell to lunch on several occasions. He regularly took employees in his group to lunch, both male and female, individually and in groups. Conversations at lunch were "business-related" and "very professional" at first. The third or fourth time they ate lunch together, however, Mr. Alepakos professed his love for Ms. Powell. Thereafter, when Mr. Small left the office, Mr. Alepakos would stop in. Within a week of declaring himself at lunch, he said, "I really mean it." He told her she would grow to love him, would learn to, and began leaving notes for her, typically like the one that said, "I love you," signed "George ." She "tried to laugh it off," questioning his sincerity. He was married, and she had a boyfriend. Beginning in the summer of 1982, he asked her almost daily for lunch. He telephoned to inquire, "Have I told you today that I love you?" Sometimes she went to lunch with him during this period, but more often she declined. He promised to behave if she accepted his invitations for lunch, but, in Ms. Powell's view, he welshed on these promises. She had mixed feelings about George Alepakos. She discussed with Carol Bjorgan the possibility of a relationship with him. By this time, her boyfriend Chip McDill had left her in the lurch. It would be nice to have someone older to take care of her, she mused aloud; and she felt she would be better off materially. Never once did she complain to Carol Bjorgan about Mr. Alepakos' romantic interest in her. She left him notes. One note, signed "Patty" and written on notepaper depicting two smiling bees among azalea blossoms, read, "Have a wonderful vacation, then hurry back." Respondent's Exhibit No. 2. One night she and Carol were drinking during "happy hour." Saying she wanted to talk to George, she telephoned his home, but hung up when his wife answered. She sometimes seemed to boast about Mr. Alepakos' taking her to lunch, asking, "Guess who I'm going to lunch with?" At Peddlers Alley one night, Mlles. Hord and Bjorgan met Mr. Alepakos for drinks. When they arrived, Ms. Hord playfully pretended to sit in Mr. Alepakos' lap, and said to Ms. Bjorgan, "We can handle it from here." In December of 1982, both Mr. Alepakos and Ms. Powell attended a party at a bar or restaurant. Mr. Alepakos "didn't think much" of her going out with the 23-year old man who escorted her to the party, danced with her, kissed her while they were on the dance floor, and, later in the evening, wrestled with her in the back seat of an automobile parked outside the establishment. He felt that "it looked bad for the company." The next morning, he called her into his office, told her she had "fallen off [her] pedestal," and that somebody had said she had behaved like a slut. Over the Christmas holidays she was in the hospital, and afterwards visited her mother in Atlanta. Mr. Alepakos called her there at the number she had given him, to ask about her health and to learn when she was coming back to work. On her return she talked things over with Mr. Small, her immediate supervisor, although she never told him about Mr. Alepakos' touching her. He advised her to decline the luncheon invitations and avoid Mr. Alepakos as much as possible. He spoke to Mr. Ormsby about the matter, at her request. In deference to Ms. Powell, who asked that nobody say anything to Mr. Alepakos, Mr. Small spoke to Mr. Ormsby "off the record." At some point, Mr. Alepakos called on Ms. Powell at the apartment she had recently moved into at Panama City Beach. She had invited him. When he arrived he found her with her daughter and stayed only about 20 minutes. Eventually Patty Powell went herself to Mr. Ormsby, and Mr. Ormsby took the matter up with Clarence L. Forrest, then the vice-president in charge of Textron's Panama City operations. Messrs. Ormsby and Forrest decided to transfer Ms. Powell to a general secretarial and word processing assignment in "the training trailer." The transfer was "lateral" in the sense that neither Ms. Powell's official job description nor her labor grade changed. In her new situation, she was involved in the production of training manuals. Bell hired two other word processing clerks to assist in this effort, Diane Ansell and April Dawn Day. Ms. Powell had recommended both Ms. Ansell and Ms. Day. She helped train them when they began. Even after they had learned the ropes, she gave them work to do which she proofread afterwards. If she was out, Ms. Ansell would assume these duties. Ms. Powell wrote out evaluations for Ms. Ansell and Ms. Day, although she never signed them. She did once sign an overtime authorization form, but Mr. Forrest sent it back for Mr. Higgins' signature and resubmission. She assumed her new duties in February of 1983, but invitations to lunch and expressions of affection continued after the transfer. One afternoon, just after Ms. Powell left the office, Mr. Alepakos said to Diane Ansell, "I love that girl," referring to Ms. Powell. After she told Mr. Ormsby that Mr. Alepakos would not leave her be, Mr. Forrest instructed Mr. Alepakos to cease and desist from any activity involving Ms. Powell unrelated to professional requirements, and directed him to communicate with her, if at all, through third parties. During the ensuing eight or nine months, Mr. Alepakos avoided Ms. Powell entirely. He "went the other way around when he saw her coming." In the fall of 1983, however, they were both at an office party at the Long Glass. She grabbed his shirt and led him into another room, where she asked him why he had been avoiding her. According to a friend and co-worker, petitioner was not "an outward flirt," except when she drank. Encouraged by the evening's events, Mr. Alepakos resumed his attentions. He telephoned several times a day, unless he was angry, and they began lunching together again. At various times, she told him she was at the point of reconciliation with her ex-husband, that she was seeing a boyfriend, and that she was gay. But she accepted a good many of his luncheon invitations, which was enough to inspire him to several proposals of marriage. In November of 1983, Ms. Powell came to work early one morning and made her way in the still dark trailer to the word processing room. Suddenly Mr. Alepakos, whom she had not seen nor expected to be there, embraced her and tried to kiss her. When the lights came on, he said, "I'm sorry", and left. During this period, Ms. Powell worked under the immediate supervision of Frank Higgins, who left civilian employment with the Navy and began with Textron in August of 1983. In early December of that year, Ms. Powell spoke to Mr. Higgins about Mr. Alepakos. After a second conversation on the subject, on February 9, 1984, Mr. Higgins stated, in a "Memo For the Record": FOR BACKGROUND, PATTY IS AN EXTREMELY QUIET, SHY PERSON WITH A RATHER "FRAGILE" QUALITY. SHE IS A DEDICATED PROFESSIONAL IN HER APPROACH TO HER JOB. SHE HAS NEVER APPEARED TO PROJECT (AVERT OR OTHERWISE) HER SEXUALITY AT WORK, DRESSES CONSERVATIVELY - AN IDEAL FEMALE WORKER IN TERMS OF NOT BEING INVOLVED TO ANY EXTENT WITH HER MALE CO- WORKERS OTHER THEN PROFESSIONALLY. SHE HAS NOT AND PROFESSES NO[T] TO WANT TO DATE ANYONE FROM WORK. GEORGE IS APPARENTLY "LEANING" ON HER AT WORK TO THE POINT SHE'S BECOMING EMOTIONALLY FRAZZLED OVER IT. HE PROFESSES TO BE IN LOVE AND "WANTS HER." GEORGE IS INSANELY JEALOUS OF HER BEING SURROUNDED BY ALL THESE MEN AND TOLD HER THAT DAVE STULTS, BOB NISSLEY AND MYSELF ARE OR MAY WANT TO BE ROMANTICALLY INVOLVED. HE CALLS HER SEVERAL TIMES SOME DAYS, SOMETIMES ASKING HER TO COME TO HIS OFFICE WHERE "COMMENTS ARE MADE" TO HER. SHE IS AFRAID NOT TO GO OVER TO HIS OFFICE - APPARENTLY FEELS GEORGE IS A POWER BROKER AND IF SHE GETS HIM MAD, HE'LL TAKE IT OUT ON TRAINING BY NOT SUPPORTING OUR NEEDS. PATTY SAYS SHE HAS TRIED EVERY CONCEIVABLE APPROACH TO TELL GEORGE SHE IS NOT INTERESTED IN HIM AND HE'S ANNOYING HER & SHE WANTS IT STOPPED. YET HE REFUSES TO LEAVE HER ALONE. I TOLD HER THAT SHE NEEDS TO THREATEN HIM WITH HARASSMENT CHARGES & BE WILLING TO FOLLOW UP ON THEM TO THE BITTER END - IF GEO. KNEW SHE WAS SERIOUS AND HIS JOB WAS IN DANGER, I HOPE HE WOULD BE PRUDENT ENOUGH TO BACK AWAY. PATTY SEEMS RELUCTANT TO PRESS CHARGES FOR FEAR THAT SHE WILL END UP BEING FIRED AND PERCEIVED AS THE CAUSE OF THE PROBLEM. SHE FEELS CASEY WILL PROTECT GEORGE AND WOULD CONSIDER GEO. MORE IMPORTANT TO BELL THAN PATTY. IN PREVIOUS DISCUSSIONS WITH CASEY DATING BACK TO DECEMBER, I TOO SENSED THAT EITHER CASEY WASN'T BE[ING] OBJECTIVE OR FAIR IN HIS ASSESSMENT OF PATTY OR THAT POSSIBLY GEORGE HAD BEEN FEEDING CASEY LIES AND INNUENDO ABOUT PATTY'S POTENTIAL INVOLVEMENT WITH PERSONNEL IN TRAINING. THE APPARENT STRATEGY IS TO CAST DOUBTS ABOUT PATTY'S CHARACTER SUCH THAT IF HIS SITUATION EVER BOILED TO THE SURFACE HE COULD BLAME IT ON HER TO SAVE HIS JOB. I BELIEVE THERE IS ENOUGH INFO AVAILABLE TO HAVE GEO. REPRIMANDED OR FIRED OVER THIS. THERE ARE SEVERAL PEOPLE WHO HAVE SEEN OR HEARD GEO. MAKE APPROACHES TO HER WHO I'M SURE WOULD COME FORWARD TO SUPPORT PATTY'S POSITION. SINCE THE DISCUSSION WAS OFF THE RECORD I AGREED NOT TO APPROACH CASEY YET. I OFFERED TO SPEAK WITH GEO. BUT IF HE PERCEIVES ME AS A COMPETITOR FOR PATTY, HE OBVIOUSLY WOULD MISCONSTRUE MY INTENTIONS. I DO INTEND TO SPEAK TO LENNY MORGAN "OFF THE RECORD" NEXT WEEK IN NEW ORLEANS TO GAIN SOME ADDITIONAL INSIGHT IN HANDLING THIS ISSUE. Petitioner's Exhibit No. 1. In a second "Memo For The Record," Mr. Higgins reported discussing the situation with Mr. Morgan, and summarized the latter's advice. * * * LENNY'S BOTTOM LINE WAS AS I SUSPECTED - DON'T LEAVE IT SIMMERING TAKE FIRM ACTION. BRING IT TO CASEY'S ATTENTION. LENNY INDICATED HE WOULD BE GLAD TO COME OVER AND BECOME DIRECTLY INVOLVED IN SOLVING THIS. * * * Petitioner's Exhibit No. 2. Although Mr. Higgins never showed these memoranda to "Casey" Forrest, who only learned of them after the present proceedings began, he did mention the situation to Mr. Forrest, who indicated that he wondered whether there was a "problem on both sides," but agreed to speak to Mr. Alepakos. By the time Mr. Higgins left Panama City, in July of 1984, he thought the situation had been resolved. About this time, Ms. Powell told Mr. Alepakos she planned to remarry. He responded that he would be there, if it did not work out. He said he still loved her, and he did not stop asking her out, although, after she became Mrs. Hord, she consistently declined. He continued to declare his love. Mrs. Hord again complained, this time to B. L. Nissley, Textron's director of training documentation, on or about December 15, 1985. Her complaint notwithstanding, she sent Mr. Alepakos a poinsettia for Christmas. At some point, she left a note on his desk, saying "Missing you, P.H." By a memorandum dated January 29, 1985, Mr. Nissley asked Mr. Forrest for a formal investigation "to assure that this problem be resolved once and for all." Respondent's Exhibit No. 6. On January 31, 1985, Mr. Forrest interviewed Mrs. Hord in Mr. Ormsby's presence. She reported the frequent invitations to lunch and a suggestion by Mr. Alepakos that they take a vacation together, but said nothing about his touching her. Messrs. Forrest and Ormsby also interviewed Mr. Alepakos. They decided it might be well for a disinterested third party to investigate, and asked Textron's Mr. Morgan to come over from New Orleans for the purpose. Mr. Morgan interviewed Mrs. Hord for two and a half hours on February 10 or 11, 1985. In answer to his questions, Mrs. Hord said that Mr. Alepakos had not asked her for sexual favors, and had not behaved vulgarly, lewdly or indecently. Nor did she advert to the early morning incident in the trailer, which Mr. Alepakos admitted at hearing, while denying any attempt to kiss her. When Mr. Morgan asked her if Mr. Alepakos had ever touched her, or tried to kiss her or to force himself on her, she answered no. Mr. Morgan asked Mrs. Hord to name others who could support her claim of harassment. She gave him only one name, Ms. Ansell's. Mr. Morgan also interviewed George Alepakos at length, and asked him to name others who could support his assertions. Mr. Alepakos gave him some five names. After interviewing these people and Ms. Ansell, Mr. Morgan returned to New Orleans and stated his conclusions in a memorandum dated February 15, 1985. Mr. Forrest wrote Mr. Alepakos a memorandum advising him that his "conduct in the matter lacked professionalism and good judgement." Petitioner's Exhibit No. 6. He was "warned to confine ... communications and relationships with Mrs. G. Hord to a professional/business environment." Id. This February 25, 1985, memorandum raised "the possibility of termination of [Alepakos'] employment," id. in the event "the cited harassments reoccur[ed]." Id. But the phrase "cited harassments" was a reference to the February 15, 1985, memorandum, Respondent's Exhibit No. 6, in which Mr. Morgan stated: Since the evidence indicates that the relationship was two sided, I find it difficult to describe the activity of Mr. Alepakos as one of harassment. Respondent's Exhibit No. 6, p. 2. Mr. Forrest did not warn or reprimand Mrs. Hord because he felt a supervisor or manager had a different responsibility in matters of this kind than an employee under supervision. At no time, did Mr. Alepakos tell her off color stories, show her pornographic photographs, explicitly solicit sexual favors, or make obscene gestures to or from Mrs. Hord. It fell to Messrs. Ormsby and Nissley to relay the results of Mr. Morgan's investigation to Mrs. Hord. The three of them gathered in Mr. Nissley's office, and he furnished her a copy to read. She had gotten part way through when she exclaimed, "That's a lie. I never sent him flowers. I never left notes on his desk." She threw down the report, and left the office, despite Mr. Nissley's telling her to stay. She dismissed the February 15, 1985, memorandum as a "bunch of bullshit." Mr. Nissley spoke to her afterwards and told her that he would not tolerate vulgar outbursts in the future. She telephoned Mr. Morgan and complained to him about the result of the investigation. She told him she did not think the report was fair or that it reflected what had happened. She became upset and characterized the report as "bullshit." To this he replied, "Wait a minute. I'll answer any question you want to ask." But she hung up the telephone. On January 30, 1985, Mrs. Hord had asked to take a leave of absence. Her request approved, she began thirty days' leave soon after she learned the results of Mr. Morgan's investigation. Upon her return, Mr. Nissley told her about the results of her annual evaluation, and informed her she had been given a raise of $.20 per hour. The $.20 raise took effect March 16, 1985. With the raise, Mrs. Hord was paid $7.90 per hour, a dollar an hour more than Diane "Dee" Ansell was paid. And Ms. Ansell was paid more than April Dawn Day, the third word processing clerk who helped produce training materials for Navy personnel. Mrs. Hord requested a meeting with Mr. Forrest to discuss the raise, which brought her salary to the highest authorized for her position; it was the same amount as the raise the other two word processing clerks in the training program received. But, since she was paid more than they were, the raise represented a smaller percentage of increase, and she objected. On the morning of March 27, 1985, when Mrs. Hord met with Mr. Forrest, Messrs. Ormsby and Nissley were also present. She told them Bell could keep the raise. Mr. Forrest began to explain the mechanics of Bell's merit raise system, when Mrs. Hord interrupted, "It's a bunch of bullshit. You can do anything you want." As she started to leave, Mr. Forrest told her to stay, but she refused. At one point, she called her bosses "jackasses." According to Mr. Forrest's secretary, who was outside, she "had a wild look" as she slammed the door on her way out. Before they dispersed, Mr. Forrest and the others decided to terminate her employment, unless Mr. Morgan advised against it. Mr. Forrest thought her language "unbecoming a lady." He certainly would not have expected a woman to use such language, and it did not affect him in the same way as it would have, if a man had used the same language. On the other hand, he would not have expected any of Bell's Panama City employees to use language of this kind in such a setting. Mr. Forrest testified under oath that Mrs. Hord was not fired because he found her language the more offensive on account of her femininity. Apprised of the situation, Mr. Morgan consulted a New York lawyer, then told management in Panama City he had no objection to firing Mrs. Hord. Mr. Ormsby then caused a memorandum to be addressed to Mrs. Hord, notifying her that her employment was "terminated as of this date (27 March 1985), for gross disrespect, incertituded (sic), premeditated and continued disregard for all levels of Management ... so as to challenge the management of this company and to incite disrespect of other employees ...." Respondent's Exhibit No. 10.
Recommendation It is, accordingly, RECOMMENDED: That the Florida Commission on Human Relations dismiss Gloria Hord's petition for relief. DONE AND ENTERED this 22nd day of September, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1987. APPENDIX Petitioner's proposed findings of fact Nos. 1, 5, 6, 7, 8, 15, 17, 18, 19, 20, 23, 24, 25, 26, 29, 30, 32, 33, 36, 37, 38, 39 and 40 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, the evidence showed that she worked as an acting supervisor for Columbia Research but not, as far as the hearing officer's notes reflect, for CSC. With respect to petitioner's proposed finding of fact No. 3, the evidence showed that Mr. Small interviewed her first. Mr. Alepakos, as his supervisor, could presumably have overruled Mr. Small's choice even if Mr. Small made the "basic decision" to hire. Petitioner's proposed finding of fact No. 4 has been adopted, in substance, except that the evidence did not establish that he placed his hands on her shoulders more than once. With respect to petitioner's proposed findings of fact Nos. 9 and 10, the evidence did not reveal any sexual advances at this point, aside from declarations of love, which were not entirely unwelcome. Except for the last sentence, petitioner's proposed finding of fact No. 11 has been adopted, in substance, insofar as material. With respect to the final sentence of No. 11 and the word "Again" in No. 13, it was not clear from the evidence that she went to Mr. Ormsby before Christmas. With respect to petitioner's proposed finding of fact No. 12, Mrs. Hord did not always go "to great lengths to avoid contact with Mr. Alepakos during this time period." She not infrequently accepted his invitations to lunch. Petitioner's proposed finding of fact No. 14 has been rejected as against the weight of the evidence. Petitioner's proposed finding of fact No. 16 has been adopted, in substance, insofar as material, except that Mr. Alepakos was not put on any formal probation. With respect to petitioner's proposed finding of fact Nos. 21 and 22, the evidence showed that he resumed his attentions because of her advances. With respect to petitioner's proposed finding of fact No. 27, the evidence showed that he called, but not that he called frequently. With respect to petitioner's proposed finding of fact No. 28, he did not come by uninvited. With respect to petitioner's proposed finding of fact No. 31, he said she needed to see a doctor but not, in so many words, that the marriage would fail. With respect to petitioner's proposed finding of fact No. 34, nobody placed limits on Mr. Morgan's investigation. Petitioner's proposed finding of fact No. 35 has been rejected as contrary to the evidence. She was not told she would be reprimanded for making good faith complaints. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 29, 31, 32, 33, 34, 35, 36, 37, the first two sentences of No. 38, Nos. 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 60, 61, 62, 65, 66, 70 and 72 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, she lived at Panama City Beach at one point. Respondent's proposed findings of fact Nos. 9 and 10 are immaterial or subordinate. Respondent's proposed finding of fact No. 11 is rejected. With respect to respondent's proposed finding of fact No. 12, Ms. Bjorgan's testimony was that she was not sure Mrs. Hord wanted to see him that night. Respondent's proposed finding of fact No. 14 has been accepted, in substance, insofar as material, except for Small's suggested advice to change her manner of dress. With respect to respondent's proposed finding of fact No. 25, Mrs. Hord was ambivalent about Mr. Alepakos before as after the incident. Respondent's proposed finding of fact No. 27 is rejected. Respondent's proposed finding of fact No. 28 blows a single incident out of proportion. Respondent's proposed finding of fact No. 30 is rejected. The final sentence of respondent's proposed finding of fact No. 38 is rejected, as is No. 39 to the extent it proceeds on the assumption there was any hiatus. Respondent's proposed finding of fact No. 44 has been adopted, in substance, except that the evidence did not establish that the poinsettia was flowering. With respect to respondent's proposed finding of fact No. 57, the epithet was "jackasses." With respect to respondent's proposed findings of fact Nos. 59 and 64, Alepakos had no input, but the fact of her complaints was considered and inspired the call to Morgan. Respondent's proposed finding of fact No. 63 is immaterial, except that Alepakos' attentions did not cause great mental stress. With respect to respondent's proposed finding of fact No. 67, his overtures were romantic. With respect to respondent's proposed finding of fact No. 68, he did propose marriage. Respondent's proposed finding of fact No. 69 has been adopted, in substance, insofar as material, except for the final clause of the final sentence which is rejected. Respondent's proposed finding of fact No. 71 is immaterial or subordinate. COPIES FURNISHED: Alvin L. Peters, Esquire 36 Oak Avenue Panama City, Florida 32401 William B. deMeza, Jr., Esquire Holland and Knight Post Office Box 241 Bradenton, Florida 33506 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent violated Sections 491.009(2)(k), and 491.009(2)(s), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all times material, Respondent held a license as a Mental Health Counselor in the State of Florida. Petitioner, through the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, is the state agency that licenses and has regulatory jurisdiction of Clinical Social Workers. Respondent was employed as a counselor by the ACT Corporation (ACT) at the time of the incident that is the basis for this case. ACT operates a residential psychiatric treatment facility at which Respondent was employed. T.J. was a patient in the ACT facility from December 26, 1996 until mid-February, 1997. While at ACT, T.J. was diagnosed with bipolar disorder. T.J. had both group sessions and private sessions with Respondent while she was an in-patient at ACT. The private sessions took place in Respondent's office. Respondent and T.J. talked on the telephone, and he brought her small items, like lip-gloss and gum, that she was not allowed to have. T.J. alleges that the sessions became sexual on or about the second private therapy session. She alleges sexual contact during the in-patient sessions involved kissing and touching, that was consensual. T.J. states that she trusted Respondent and was in love with him. T.J. alleges this sexual relationship with Respondent continued after T.J. left ACT in February. There was never a therapeutic relationship between Respondent and T.J. after T.J. left the hospital. There was never any discussion of a fee arrangement, and no fees were ever paid for counseling sessions. Two days after T.J. left ACT, Respondent picked her up from her home and took her to Sapporo's for dinner and drinks. Following dinner, they went to a bar called the Barracks. T.J. alleges that when Respondent brought T.J. home that night they engaged in oral sex and intercourse. A few days later, T.J. and Respondent met for dinner at the Olive Garden. At the Olive Garden they had dinner and drinks. T.J. alleges that following dinner, Respondent walked T.J. to the van she was driving, they kissed and then had sexual intercourse in the van. On Valentine's Day Respondent came to T.J.'s house for dinner. T.J. lived with her parents. He brought her flowers and a bottle of wine for her parents. A card accompanied the flowers that said: "Sorry! No candy. Hope this will do instead." The envelope said "Traci." Following dinner, they went out to the Flagler Tavern. T.J. alleges that when they returned to T.J.'s house Respondent stayed until early morning and they had oral sex and intercourse. Respondent denies any sexual intimacy with T.J., and asserts that their relationship was one of patient-therapist even after she left ACT. T.J.’s testimony was presented by deposition. There was no opportunity to observe her. She was diagnosed contemporaneously with the events to which she testified with a condition that makes her credibility difficult to assess. Respondent testified at hearing denying the sexual relationship with T.J. I do not find the deposition testimony of T.J. credible regarding the allegations of sexual relations with Respondent. I find that there was a relationship between Respondent and T.J. because Respondent verifies the social contacts T.J. reported. Respondent did not perform any counseling with T.J. on the various occasions when they went to the bars and restaurants. This relationship was inconsistent with existing standards of professional conduct, as testified to by experts at hearing and exemplified in the code of ethics which ACT had. T.J. continued therapy as an outpatient with another ACT therapist for a short time after she was released from the hospital. During one of these sessions, T.J. told the outpatient therapist about her social/personal relationship with Respondent. Shortly thereafter, ACT fired Respondent for violation of ACT's code of ethics. This code prohibited personal relationships between patients and employees of the facility. Respondent had his Florida Teaching Certificate permanently revoked when he worked as a counselor at Deland Senior High School. He was charged with sexual misconduct with a student, and did not contest the charges formally. Psychotherapy is dependent upon a personal relationship between the patient and the therapist. Patients often develop emotional relationships or attachments to counselors or therapists because of the creation of an environment of trust. It is important that therapist recognize that this relationship is an outgrowth of treatment, and not to take advantage of the patient. Respondent had a relationship with T.J. that is contrary to the professional standards of practice, notwithstanding the allegations of sexual misconduct. His professional relationship should have been confined to the clinical setting, and the social activities in which he engaged with T.J. were inappropriate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a final order adopting this order and revoking Respondent’s license and assessing a fine of $1,000 against him pursuant to Rule 64B4- 10.002 formerly 59P-5.001, Florida Administrative Code, the Board's penalty guidelines. DONE AND ENTERED this 17th day of May, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2001. COPIES FURNISHED: Ismael Lopez 13691 Gavina Avenue, No. 447 Sylmar, California 91342 Mary Denise O'Brien, Esquire Department of Health 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty therefor.
Findings Of Fact Parties and Investigation Leading to Issuance of the Amended Complaint The Department is the state agency responsible for regulating the practice of medicine pursuant to section 20.43, Florida Statutes, and chapters 456 and 458, Florida Statutes. Respondent, Aunali Salim Khaku, M.D., is a neurologist and sleep medicine specialist licensed (ME 114611) in Florida. Respondent completed a neurology residency in 2013 and a sleep medicine fellowship in 2014. He practiced at the VA from 2014 until 2020, initially at the Lake Baldwin facility and then at the Lake Nona facility. From 2020 until early 2021, Respondent practiced at Orlando Health. Other than the allegations herein, the Department has never sought to discipline Respondent. The Department seeks to revoke Respondent’s license based on allegations that he engaged in sexual misconduct during office visits with three female patients—S.R., M.H., and M.V.S. The parties stipulated that the factual allegations, if proven by clear and convincing evidence, constitute sexual misconduct under Florida law. On or around December 6, 2020, M.V.S. reported to both the LMPD and the Department that Respondent acted inappropriately during an office visit on November 30, 2020. The Department investigated further, interviewed M.V.S. and Respondent, and obtained medical records from Orlando Health. On February 17, 2021, the Department issued an Order of Emergency Restriction of License (“ERO”) that restricted Respondent from practicing on female patients based on findings of sexual misconduct with M.V.S. On February 22, 2021, Respondent requested an expedited hearing under sections 120.569 and 120.57. The Department properly did not transmit the case to DOAH at that time, as judicial review of the ERO is via petition in the appellate court. §§ 120.60(6)(c) and 120.68, Fla. Stat. Respondent filed such a petition, but the First District Court of Appeal ultimately denied it on the merits. On March 9, 2021, the Department presented its disciplinary case to a probable cause panel of the Board. After hearing argument from both parties, the panel unanimously found probable cause to issue a three-count Administrative Complaint (“Complaint”) seeking to discipline Respondent for engaging in sexual misconduct with M.V.S. On March 10, 2021, the Department issued the Complaint. On March 16, 2021, Respondent requested an expedited formal hearing under chapter 120. However, the Department did not immediately transmit the Complaint to DOAH because it had just received notification that the VA investigated complaints of sexual misconduct against Respondent by two veterans, S.R. and M.H., who each saw Respondent multiple times between 2014 and 2016. The Department obtained records from the VA. As to S.R., the VA closed the matter as unsubstantiated based on S.R.’s decision not to pursue criminal charges and the VA’s finding of insufficient evidence to support the allegations. As to M.H., the VA found no conclusive evidence of misconduct based on Respondent’s testimony, which was corroborated by the testimony of his nurse and a medical student. After receipt of the VA records, the Department interviewed S.R. and M.H. Based on this additional information, the Department presented its case to another probable cause panel to amend the Complaint to include allegations relating to S.R. and M.H. After hearing from both parties, the panel voted unanimously on April 23, 2021, to find probable cause of sexual misconduct with S.R. and M.H. On April 27, 2021, the Department issued the three-count Amended Complaint seeking to discipline Respondent’s license for sexual misconduct with S.R., M.H., and M.V.S. On April 29, 2021, Respondent filed a third request for a hearing, which sought transmission of the case to DOAH for an expedited evidentiary hearing to be held within 30 days. On April 30, 2021, 45 days after Respondent’s request for a hearing on the initial Complaint, the Department transmitted the Amended Complaint to DOAH to conduct an evidentiary hearing under chapter 120.2 2 In filings prior to transmittal of the Amended Complaint to DOAH, in pleadings prior to the final hearing, and orally at the final hearing, Respondent argued that the Department improperly delayed transmitting the case to DOAH and violated his due process rights throughout the investigatory process. Even had Respondent preserved those arguments by including them in his PRO, the undersigned would have found that the Department’s investigation, the probable cause panel proceedings, and the timing of the transmittal of the case to DOAH did not render the proceedings unfair or impair the correctness of the Department’s action based on the weight of the credible evidence. For one, the Department presented its case to the probable cause panel 20 days after issuing the ERO and issued the initial Complaint the next day. It presented the new allegations to a probable cause panel 65 days after the ERO (and 44 days after filing the initial Complaint) and issued the Amended Complaint the next day. The Department then transmitted the Amended Complaint to DOAH on April 30, 2021, one day after Respondent requested a hearing on it and 45 days after requesting a hearing on the initial Complaint. Based on this timeline, the Department met its obligation to promptly institute chapter 120 proceedings. See § 120.60(6)(c), Fla. Stat. (“Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.”); see also § 456.073(5), Fla. Stat. (“Notwithstanding s. 120.569(2), the department shall notify the division within 45 days after receipt of a petition or request for a formal hearing.”); Fla. Admin. Code. R. 28-106.501(3) (“In the case of the emergency suspension, limitation, or restriction of a license, unless otherwise provided by law, within 20 days after emergency action taken pursuant to subsection (1) of this rule, the agency shall initiate administrative proceedings in compliance with Sections 120.569, 120.57 and 120.60, F.S., and Rule 28- 106.2015, F.A.C.”). The weight of the credible evidence also failed to establish any resulting prejudice to Respondent. He presented no evidence as to how the Department’s decision to investigate the new allegations and issue the Amended Complaint before transmitting the case to DOAH prejudiced his ability to defend against the allegations. The Department notified Respondent of M.V.S.’s complaint and allowed him to provide statements during the investigation, make arguments before both probable cause panels, conduct discovery, and adequately prepare for and defend against the allegations at a final hearing. The fact that the VA did not comply with Respondent’s discovery requests or make witnesses available is neither attributable to the Department nor a reasonable basis to argue prejudice, particularly where Respondent failed to enforce subpoenas or challenge the VA’s discovery objections in state or federal court. The undersigned simply cannot find that the Department violated Respondent’s due process rights by waiting 45 days to transmit the case to DOAH while the Department investigated new allegations involving two other female patients. At best, Respondent’s alleged prejudice is that the Department was able to prosecute him for sexual misconduct with two additional patients, which it had authority to do independently by separate complaint or by moving to amend the Complaint once it transmitted the case to DOAH. The latter option could have resulted in even more delay, as DOAH may have had to relinquish jurisdiction to allow for the new allegations to be approved by a probable cause panel if the Department had not already completed that necessary step. S.R.’s Two Appointments with Respondent in 2014 and 2015 In 2014, S.R., a 58-year-old veteran who just moved to Orlando, requested a neurology referral because she suffers from multiple sclerosis (“MS”). The VA referred her to Respondent with whom she had two office visits. On December 29, 2014, S.R. had her first appointment with Respondent at the VA Lake Baldwin facility. Respondent’s assistant took S.R.’s vitals but did not remain in the room during the examination.3 S.R. never asked for a chaperone to be present and one was not offered to her. Respondent entered the room and made introductions with S.R. They discussed the new VA facility in Lake Nona, where Respondent lived, and restaurants in that area. According to S.R., Respondent said that he hoped to see her, though she did not understand what that meant. S.R. explained that she suffered her first MS attack over 30 years earlier but only recently was diagnosed with the disease after a neurologist ordered an MRI. She discussed her current symptoms, including back pain, muscle spasms, and fatigue. Respondent told her that back problems were common for women with large breasts, which she thought was odd. But, she expressed hope that Respondent could continue to help with her symptoms much like her prior neurologists in South Carolina and South Florida. Respondent examined S.R. and tested her reflexes, vision, coordination, and physical limitations. Respondent said he wanted to listen to S.R.’s heart. Without even trying to listen over her clothes, he asked S.R. to lift her t-shirt. He began rubbing his stethoscope across both her breasts and under her bra. He then cupped the bottom of her left breast with the palm of 3 The VA advocate’s report indicated that S.R. said that Respondent instructed his assistant to leave the room prior to his examination. However, S.R. testified credibly that she never made that allegation and her handwritten statement to the VA advocate also contained no such allegation. That the VA advocate’s hearsay report says otherwise neither calls S.R.’s credibility into doubt nor undermines the clear and consistent nature of her testimony. his hand while holding the stethoscope between his fingers and touching her nipple. This portion of the examination lasted about ten seconds. At the end of the initial visit, Respondent discussed treatment plans, medication, and physical therapy with S.R. They scheduled a follow-up appointment for several months later. Respondent documented S.R.’s records based on his examination. Although S.R. testified credibly that she had a heart murmur, Respondent noted a regular heart rate and rhythm with no murmurs. He also continued S.R.’s prescription for Diazepam, though several months later he placed an addendum for that initial visit record to indicate the prescription was improperly entered under his name and that he would defer to S.R.’s primary care physician for that medication. S.R. thought Respondent’s conduct was weird because no doctor had ever listened to her heart under her clothes or touched her breasts in that manner. She felt confused and uncomfortable, but she did not report the incident then because she trusted Respondent as her doctor and thought it could have been a mistake. She also thought Respondent might be the only neurologist at the VA. She discussed the incident with her husband and decided that she would be more aware at subsequent appointments. On March 30, 2015, S.R. had her second visit with Respondent at the Lake Nona facility. She arrived early, but the office staff delayed bringing her back and then had trouble taking her vitals. S.R. did not request a chaperone for this visit because everyone seemed very busy. Respondent entered the room and they were again alone. Respondent seemed irritated because he thought S.R. arrived late, which made her defensive. She complained of left hip pain and told Respondent that she had not gone for physical therapy. He examined her hip by lifting her leg, which hurt. She then sat up and he said he needed to listen to her heart. Again, without attempting to listen over her t-shirt and bra, he told her to lift her t-shirt. Because of what occurred during the last visit, S.R. kept her arms tightly by her sides to limit Respondent’s ability to touch her breasts. He kept using his elbow to try to relax her arms while moving the stethoscope higher over her breasts, eventually cupping her breast under her bra. He grabbed at her breasts but got frustrated by her refusal to relax her arms. At that point, Respondent threw the stethoscope into the sink and became angry, which startled S.R. and made her uncomfortable. She requested that he continue her Diazepam prescription to help her sleep at night, which she said her prior neurologist prescribed for muscle spasms. Respondent told her that the drug was for anxiety, not muscle spasms, though he documented in her record that she should continue to take the medication. Respondent also documented again that S.R. had a regular heart rate and rhythm. S.R. felt uncomfortable during the entire visit. She had never had a neurologist get angry or confrontational with her, but she decided not to report the incidents at that time because she was in pain and just wanted to go home. About a month later, she awoke in the middle of the night and realized the inappropriateness of Respondent’s conduct. In August 2015, S.R. returned to the Lake Nona facility to schedule an appointment with a different neurologist. When she saw Respondent’s name on the signage, she immediately went to the patient advocate to report his misconduct in the hope of preventing him from engaging in the same behavior with other patients. She met with the patient advocate and the VA police, and she completed a written statement. Although she was supposed to testify before the VA investigative board, she had trouble finding the room that day and left without speaking to anyone. Based on S.R.’s decision not to pursue criminal charges and the VA’s finding of insufficient evidence to support the allegations, the VA closed the matter as unsubstantiated. However, the matter was referred for clinical and/or administrative follow- up, which resulted in the VA updating its chaperone policy to require signs to be posted in the offices to put patients on notice of their right to ask for a chaperone. S.R. did not report the incidents to the Department at the time because she did not realize she could do so. But, when the Department contacted her in 2021 about this case, she agreed to participate and testify. The undersigned found S.R. to be a highly credible witness who unequivocally testified about Respondent’s inappropriate sexual behavior. S.R.’s testimony was compelling, specific, clear, and materially consistent with the statements she made when the incidents first occurred. Respondent testified about his treatment of S.R., but he conceded he had no independent recollection of the visits. Instead, he based his testimony on what he documented in her medical records and his standard practice. Respondent testified that he conducted a thorough examination in the same manner that he evaluates all of his new patients. He performed a cardiac examination over S.R.’s clothing by placing a stethoscope on her chest in several areas to listen to her heart. He confirmed that he never places the stethoscope on, or allows his hand to come into contact with, a patient’s breasts and that it was impossible that such contact happened with S.R. even inadvertently. He also said that he always has a chaperone present if he needs to listen to a female patient’s heart under her clothing and that is exactly what he would have done had he needed to do so with S.R. Respondent denied engaging in any inappropriate behavior with S.R. and suggested instead that she misperceived what happened. However, he offered no credible explanation for S.R. having such a misperception, except to accuse her of being upset for his refusal to prescribe her Diazepam. S.R.’s medical records fail to document any cognitive impairment and Respondent confirmed that she did not suffer from hallucinations or ailments that would cause her to imagine things that did not happen. Although S.R. admitted that it took her a few months to fully realize what Respondent had done and to report it to the VA, the undersigned has no hesitation in finding her testimony to be a fair and accurate account of Respondent’s actual conduct. The records themselves also call the veracity of Respondent’s testimony into question. Although S.R. credibly testified that she had a heart murmur, Respondent documented the lack of such a murmur even after conducting two cardiovascular examinations of her. Had Respondent conducted a proper cardiac examination, he should have identified and documented her murmur. Further, it cannot be ignored that the treatment plan for both visits continued her prescription for Diazepam, even though Respondent—after the first visit but before the second visit—placed an addendum in the record to indicate that S.R. needed to obtain the prescription from her primary care physician. Respondent’s notes for the March 2015 visit also document that Diazepam continued to be an active prescription for S.R., undermining the suggestion that she would fabricate an allegation of sexual misconduct against Respondent on that basis. Moreover, Respondent’s expert neurologist had never heard of a patient fabricating sexual misconduct allegations against a doctor for failing to prescribe medication. Based on the weight of the credible evidence, the undersigned finds that the Department proved by clear and convincing evidence that Respondent engaged in sexual misconduct with S.R. During the first visit, Respondent directed S.R. to lift her shirt and inappropriately rubbed his stethoscope across her breasts and under her bra, cupped her left breast with the palm of his hand while holding the stethoscope between his fingers, and touched her nipple. During the second appointment, Respondent directed S.R. to lift her shirt again. Although S.R. kept her arms tightly against her sides to try to limit Respondent’s ability to touch her inappropriately, he inappropriately rubbed the stethoscope across her breasts, cupped her breast under her bra, and grabbed at her breasts. Respondent did so on both occasions without first attempting to listen to S.R.’s heart over her clothing, which itself was contrary to the standard of care. M.H.’s Four Appointments with Respondent in 2015 and 2016 In late 2015, the VA referred M.H., a 39-year-old veteran, to Respondent for a neurological evaluation after she had an abnormal MRI showing white matter changes in her brain following an illegal drug overdose. M.H. had four office visits with Respondent at the Lake Nona facility on August 12, 2015, November 6, 2015, June 23, 2016, and August 1, 2016. During the first three visits, Respondent discussed M.H.’s medical history, prior drug use, and symptoms, including migraines, pain, possible nerve damage, and cognitive and motor issues; he also conducted physical and neurological examinations. During the fourth visit, Respondent performed a nerve block procedure to address M.H.’s migraines. M.H. testified about the visits and her uncomfortable interactions with Respondent. During several visits, he discussed the lack of sex with his wife and that she allowed him to step outside the marriage. He either asked M.H. out on a date or to meet at a hotel, which she interpreted as an offer of sex, and he also asked if he could call her. He asked her questions about her sex life several times, including how often she had sex with her boyfriend, what positions they liked, the size of her bra, and whether sex was painful. M.H. testified that Respondent also acted inappropriately. During one visit, he either lifted her shirt or asked her to lift her shirt to look at her breasts and listen to her heart. He once blocked the door to prevent her from leaving the room and attempted to put his arms around her to hug her. He once put his hands on the bottom of her buttocks, like a lover’s caress. During the fourth visit when the nurse left the room after the procedure, he had an erection and rubbed it through his pants against her leg while trying to give her a hug. She said that she told her mother in the waiting room after that visit that Respondent had rubbed his erection on her. She also said that he told her not to say anything about their interactions at each visit. In August 2016, M.H. reported Respondent’s conduct to the VA; she did not report the conduct to the Department because she did not know she could. The VA investigative board conducted sworn interviews of M.H., Respondent, his nurse, and a medical student, and it considered numerous letters of recommendation from Respondent’s patients and colleagues. It found no conclusive evidence of sexual misconduct based on Respondent’s testimony, as corroborated by testimony from a nurse and a medical student. M.H. testified passionately about Respondent’s conduct and how it made her feel. However, her recollection of the details—as to what occurred, when, and who was present—was fuzzy and inconsistent in material ways with the testimony she gave to the VA board in 2016, her deposition testimony in this case, and the testimony of her mother. M.H. stated that her recollection in 2016 was better than now, but the inconsistencies outlined below affect the weight to be given to M.H.’s testimony. M.H. testified initially that she and Respondent were alone in the examination room at some point during each visit. M.H. testified that she asked to have her daughter present during either the third or fourth visit, but Respondent refused. M.H. also testified on cross examination that she could not recall if her mother was in the room with her during the first two visits, only to later confirm that her mother must have been present during those two visits based on the testimony she gave before the VA board in 2016. M.H.’s mother testified that she accompanied M.H. to two of the visits, though she could not recall the dates. Contrary to M.H.’s testimony, her mother said she neither came back to the examination room nor met Respondent at any visit and based her testimony solely on what M.H. said. M.H.’s mother testified that M.H. said that Respondent asked her out after one visit and rubbed his erection against her back after another visit, which contravened M.H.’s testimony that Respondent rubbed his erection against her leg while hugging her from the front. Before the VA board in 2016, and contrary to her testimony at the final hearing, M.H. said that Respondent acted professionally during the first two visits and that her mother was present in the examination room both times. M.H. testified that Respondent became unprofessional while they were alone in the room during the final two visits, at which he asked inappropriate questions about her sex life. M.H. explained that she was offered a chaperone before the third visit, but she refused because nothing unprofessional had occurred before, and that Respondent refused to allow her daughter to be in the room during the procedure on the fourth visit. M.H. said Respondent grabbed her buttocks during the third visit and, during the fourth visit, he blocked the door after the procedure, grabbed her buttocks, lifted her shirt to comment on how much he liked her breasts, and rubbed his erection through his pants on her leg. When cross-examined about the inconsistencies, M.H. testified at the final hearing that she may have been protecting Respondent by saying in 2016 that he acted professionally during the first two visits, though she now recalls him acting unprofessionally during all four visits. During her pre-hearing deposition in this case, M.H. testified that Respondent asked questions about her sex life and bra size, discussed his open marriage, and asked her out during the first visit, but he did not touch her inappropriately. M.H. testified that Respondent refused to allow her daughter to stay in the room with her during the second visit and, after the examination, he blocked the door, grabbed her and tried to hug her, rubbed his erection on her stomach and leg, and again reiterated that he was allowed to have sex outside his marriage. She testified that Respondent discussed his open marriage and asked her to date him during the third visit; M.H. said that the office refused to allow her mother to accompany her in the room. M.H. testified that the only uncomfortable thing that Respondent did during the fourth visit was ask her out repeatedly. M.H. testified that Respondent never asked if she wanted a chaperone at any of the visits, though she later acknowledged that a chaperone was present at the fourth visit. Respondent testified about his treatment of M.H. based only on what he documented in her chart, as he had no independent recollection beyond his review of her medical records. Respondent denied any inappropriate behavior with M.H. He claimed that he never allowed himself to be alone in a room with her because she was engaging in manipulative, drug-seeking behavior. He basically accused M.H. of fabricating the allegations against him because he refused to prescribe her pain medication. However, Respondent’s accusations against M.H. are questionable for several reasons. Respondent never documented in her record his concern about M.H.’s alleged drug-seeking behavior, that a chaperone needed to be present at all visits, or that she had requested pain medication. Although he documented the presence of his nurse and a medical student at the fourth visit, he failed to do the same for the first three visits. One would expect a physician—surely one as concerned about a patient’s drug-seeking history and behavior as Respondent now claims to be—to document those concerns and the presence of chaperones in the medical record to prevent any future false accusation. This is particularly so given that Respondent, at the time, had recently been accused of misconduct by S.R., which he believed was both false and based on her drug-seeking behavior. The medical records also confirm that M.H. informed Respondent at the June 2016 visit that she had been prescribed Lyrica for pain while in jail and that it was working. Respondent noted, “Renewed lyrica,” in the plan/recs section of the record for that visit. Respondent also noted Pregabalin, the generic name for Lyrica,4 in both the active and pending medication lists for both the June and August 2016 visits. The weight of the credible evidence does not support Respondent’s claim that M.H. fabricated her allegations because he refused to prescribe her pain medication, particularly given her credible testimony that she did not 4 According to WebMD, the generic name for Lyrica is Pregabalin. Available at https://www.webmd.com/drugs/2/drug-93965/lyrica-oral/details. need pain medication because Respondent continued her Lyrica prescription. It also bears repeating that Respondent’s own expert had never heard of a patient falsely accusing a doctor of sexual misconduct for refusing to prescribe medication. After evaluating the evidence, the undersigned finds M.H. generally to be a more credible witness overall than Respondent. She testified passionately and credibly about Respondent’s requests to meet her outside the office because he had an open marriage and his wife allowed such conduct. She also credibly explained how Respondent commented on the size of her breasts, grabbed her buttocks, and rubbed his erection on her. Importantly, however, the undersigned cannot ignore that the clear and convincing evidence standard applies in this case. M.H.’s recollection was too fuzzy and inconsistent to definitively find without hesitation that Respondent engaged in the exact sexual misconduct alleged by M.H. and set forth in the Amended Complaint. If the Department’s burden in this case was a mere preponderance of the evidence, the undersigned would likely find that it proved Respondent engaged in sexual misconduct with M.H. But, the clear and convincing evidence standard applies herein. And, because M.H. could not provide the type of definitive and clear testimony required in this disciplinary action, the Department failed to prove that Respondent engaged in sexual misconduct with M.H. M.V.S.’s One Appointment with Respondent in 2020 On November 30, 2020, M.V.S., a 68-year-old woman, had an initial neurology consult with Respondent at Orlando Health. M.V.S. sought a neurologist based on an abnormal MRI showing a cyst near her pituitary gland and complaints of neck pain radiating to her shoulder and arm. After filling out paperwork in the reception area, a medical assistant or nurse brought M.V.S. to an examination room. The room had an examination table, which could be lowered, a counter, and a chair. M.V.S. sat in the chair while the assistant took her vitals. Although M.V.S. has a history of blood pressure spikes, for which she has called 911 and even gone to the hospital several times, her blood pressure was within normal limits that morning. The assistant waited for M.V.S. to complete the paperwork and then left the room. Respondent entered the room a few minutes later and closed the door behind him. He wore green scrubs and a white lab coat; she wore a skirt, blouse, bra, and underwear. He and M.V.S. were alone for the remainder of the appointment. They initially discussed M.V.S.’s medical history and complaints. M.V.S. talked about her aunt, who had symptoms of Alzheimer’s disease and did not recognize her on a recent visit. She was concerned about the disease because she recently had forgotten some small details, like the name of an actor in a movie. M.V.S. did not believe she had significant memory issues, but she wanted research on the disease because it ran in her family. Respondent asked M.V.S. if she lived with anyone, which she interpreted as a question relating to her safety. She informed him that she lived alone within close proximity to a fire station. She also mentioned that her daughter lived in Orlando and her fiancé lived in Longwood. Respondent asked if she had sexual relations with her fiancé; she explained that they did not because her fiancé had prostate cancer. M.V.S. thought the question was odd given the reason for the appointment and because no other physician had ever asked that type of question before. Respondent moved on to M.V.S.’s complaints of neck pain. She explained that she experienced pain on the left side of her neck that radiated to her left shoulder and left arm. At that point, Respondent directed M.V.S. to sit on the table so he could examine her. While standing to M.V.S.’s left, Respondent rubbed and squeezed her neck and shoulders with his thumbs and fingers for a couple of minutes. No other doctor had examined her in that fashion before. He said she felt tense, but never asked if she experienced pain during the examination. She confirmed that it definitely felt like a neck and shoulder massage, which she had received many times. She noted that her cardiologist had recently palpated her neck for pain by using two fingers to poke and feel around, which was different than Respondent’s examination. Indeed, when a doctor palpates for pain, they typically use two fingertips to lightly press and prod in the trouble areas and obtain feedback from the patient about the level of pain. Respondent then examined M.V.S.’s spine while she stood in front of him. He thereafter examined her reflexes, eyes, and extremity strength while she sat on the table. He also conducted a memory test, which she passed. M.V.S. did not recall Respondent listening to her heart during the visit. At that point, Respondent directed M.V.S. to lie face-down on the table, which already was lowered. He asked if he could raise her skirt and she said, yes, because she believed it related to a muscular or skeletal examination. He raised her skirt and, over her underwear, rubbed her lower back and eventually moved down to her buttocks using both of his hands. He rubbed and squeezed both of her buttocks. She confirmed it felt like a deliberate, prolonged massage, which had never happened to her at a doctor’s office. Her mind raced, she felt frozen, and she could not believe what was happening. After one to two minutes, Respondent told her to sit up because he heard a voice. She sat on the end of the table and he began massaging and squeezing her right breast while standing on her right. He told her that he had never done this before and that she was beautiful. She thanked him in a low voice, but she was afraid and felt trapped because they were alone, there were no witnesses, and she was unsure of what he would do. Respondent asked if M.V.S. was comfortable with him massaging her breast and he stopped when she said no. He moved to her left side and explained that his wife would not have sex with him, so she permitted him to have sex outside the marriage. He asked if M.V.S. would meet him for sex and she declined. Respondent asked if that was because her fiancé would object, and she confirmed they had a commitment. At that point, Respondent pulled his lab coat back and said, “Look at this. Look what you did to me.” Respondent revealed his erect penis, which M.V.S. confirmed was clearly visible through his scrubs. Respondent told her to keep this between us, said his assistant would be in shortly with paperwork, and left the room. M.V.S. waited for about seven minutes and, when no one came, she left the room, tried to hold her composure, and checked out. She said nothing before leaving because she felt unsafe and was unsure if anyone would believe her anyway. M.V.S. turned on her car’s air conditioning and drank water to calm down. Her heart was pounding, and she feared having a blood pressure spike. As soon as she arrived home, M.V.S. called her daughter to tell her what happened. M.V.S.’s daughter, who is a nurse, told her to call the police. M.V.S. called the LMPD that afternoon. The officer with whom she spoke suggested that she file a complaint with the Department, which she did on December 6, 2020. Both the Department and the LMPD investigated the allegations, which included interviews of M.V.S. and Respondent.5 M.V.S. also reported the incident to Orlando Health risk management. The undersigned found M.V.S. to be a highly credible witness who testified passionately and definitively about Respondent’s inappropriate sexual behavior during the office visit. She immediately reported it to the LMPD and, within a week, filed complaints with both the Department and Respondent’s employer. M.V.S.’s testimony was clear, specific, detailed, compelling, and materially consistent with the interviews and statements she gave immediately following the visit. Respondent testified about his treatment of M.V.S., but—as he did with the S.R. and M.H.—he conceded he had little to no independent 5 Based on the information obtained from M.V.S. and Respondent, the LMPD placed the case into inactive status pending further evidence. recollection of her or the visit. Instead, he reviewed her medical records, which refreshed his recollection of what occurred during the visit. Respondent denied engaging in any inappropriate behavior with M.V.S. that could have been interpreted as sexual or outside the scope of a proper examination. He testified that he conducted a neurological examination, palpated her neck for pain, checked her reflexes, and conducted a memory test. He said he never massaged her neck and shoulders, touched or massaged her breasts or buttocks, discussed his marriage, solicited her to have sex, said she was beautiful, or revealed an erection through his scrubs. He also said she could not have laid face-down on the table because he never lowered the back or extended the footrest; he confirmed that he would have brought in a chaperone if he needed her to lie on the table. Respondent testified that M.V.S.’s accusations against him were the product of memory loss and cognitive impairment. Although M.V.S. reported a family history of Alzheimer’s and a fear of mild memory loss, Respondent documented that she performed well on her memory and cognitive examinations. M.V.S. and her daughter testified credibly that she did not experience significant memory loss beyond forgetting the name of an actor in a movie. Respondent himself confirmed that M.V.S. did not suffer from hallucinations or ailments that would cause her to perceive things that were not there—a point with which his expert neurologist agreed given the way Respondent documented the medical record. And, more importantly, M.V.S.’s ability to recall the specific details of the visit and do so consistently with the statements she made previously undermine Respondent’s belief that cognitive impairment caused her to fabricate her allegations. The weight of the credible evidence simply does not support the suggestion that M.V.S. misperceived, confabulated, or fabricated her allegations based on memory loss or cognitive impairment. Additionally, Respondent attempted to discredit M.V.S. by suggesting that she may have come onto him. Indeed, he testified that she was verbose and told him during their initial discussion about her history that her fiancé was older, that she was a 60s baby, and that she had not been touched in a while. Aside from M.V.S.’s credible testimony that she said no such things, it cannot be ignored that Respondent conceded that his memory of the visit was based on his review of the medical record, which contained no reference to these comments even though Respondent says they were odd. Respondent also presented evidence that M.V.S. had previously called 911 on multiple occasions relating to blood pressure spikes to undermine the veracity of her testimony. However, the recordings of the 911 calls reveal an individual who, despite being concerned about her blood pressure, is alert, aware of her surroundings, clear-headed, and in no way suffering from an illness that would raise doubts about the veracity of her testimony or her credibility overall. Based on the weight of the credible evidence, the undersigned finds that the Department proved by clear and convincing evidence that Respondent engaged in sexual misconduct with M.V.S. He inappropriately massaged her neck and shoulders, buttocks, and breast. He disclosed that he had an open marriage and solicited M.V.S. to meet him for sex outside the office. He also told her that she was beautiful and revealed his erection through his scrubs.
Conclusions For Petitioner: Kristen Summers, Esquire Elizabeth Tiernan, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 For Respondent: Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Jon M. Pellett, Esquire Pennington, P.A. 12724 Gran Bay Parkway West, Suite 401 Jacksonville, Florida 32258
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, issue a final order finding Respondent committed sexual misconduct prohibited by sections 458.331(1)(j), 458.329, and 456.063(1), suspending Respondent’s license for two years, and thereafter permanently restricting his license to either prohibit him from seeing female patients or, at a minimum, doing so without a chaperone present.7 DONE AND ENTERED this 28th day of October, 2021, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2021. 7 Section 456.072(4), Florida Statutes, provides that the Board, in addition to any other discipline imposed through final order, “shall assess costs related to the investigation and prosecution of the case.” Prior to the final hearing, the parties agreed to bifurcate the investigative costs issue (including Respondent’s argument that such costs should not be assessed because they are based on unpromulgated rules) pending resolution of the merits of the Amended Complaint. Upon further reflection, the undersigned concludes that resolving such an issue—even in a bifurcated proceeding—is premature because the Board has not yet issued a final order disciplining Respondent or followed the procedure in section 456.072(4), which requires it to consider an affidavit of itemized costs and any written objections thereto. It is in those written objections where Respondent may challenge the costs as being based on an unpromulgated rule. And, if Respondent’s written objections create a disputed issue of fact, the Department can transmit the investigative costs issue to DOAH to resolve that dispute, just as it did in Case No. 20-5385F. COPIES FURNISHED: Jon M. Pellett, Esquire Pennington, P.A. Suite 401 12724 Gran Bay Parkway West Jacksonville, Florida 32258 Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Donna C. McNulty, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Paul A. Vazquez, JD, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 Kristen Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Elizabeth Tiernan, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Edward A. Tellechea, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
The Issue The issue presented by this case is whether the Respondent, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Frank J. Lugo, Jr., through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977). The parties have submitted Proposed Recommended Orders. Those proposed findings not included in this Recommended Order were not supported by competent and substantial evidence or were considered immaterial to the results reached.
Findings Of Fact On January 19, 1981, the Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Department requested the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes, to consider the matters set forth in the Petition. At the final hearing the Petitioner testified on his own behalf. Dr. Robert Berland, Ph.D., a psychologist and the Director of the Behavior Disorders Unit in the Forensic Service at the Florida State Hospital testified for the Respondent. Respondent's Exhibit 1, a composite exhibit consisting of a clinical summary, intradepartmental staffing report and an abstract of a staff conference, was admitted as evidence. At all times pertinent to this proceeding the Petitioner has been in the custody of the Respondent pursuant to an order of the Circuit Court of Pinellas County, Florida and Chapter 917, Florida Statutes (1977). From August 6, 1979 through the present, Petitioner has resided in the Florida State Hospital in Chattahoochee, Florida, where he has undergone treatment in a hospital program for mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. The success rate within the program is very low due to patients' long established behavior patterns. Although the Petitioner has progressed during the course of his treatment, the Department has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is participating and has also concluded that similar programs for sex offenders within the state do not offer viable treatment alteratives. The primary treatment modality for mentally disordered sex offenders at Florida State Hospital is group therapy. The Petitioner has participated in group therapy sessions during his current hospitalization, but no significant change in his behavior has occurred. Dr. Berland has diagnosed his present condition as (1) exhibitionism, (2) voyeurism, (3) other sexual deviations, (4) mixed substance abuse, (5) psychogenic pain disorder, (6) anti-social personality, (7) passive-aggressive personality with contained hostility, and (8) narcissism. Exhibitionism has been the Petitioner's primary problem with his first arrest for indecent exposure occurring in 1971. Group and milieu therapy are the basic treatments available in the sex offender program at Florida State Hospital. Milieu therapy consists of interacting with people who share similar problems. Petitioner has participated in both therapies since his admission to the hospital. From August, 1979 to January, 1980, Mr. Lugo regularly attended group therapy and participated in the group. He developed a degree of insight into his condition. During this period, the group was led by Sam Cuningham, a psychologist, and met for one hour each week. From February, 1980, to August, 1980, Petitioner regularly attended group but did not actively participate. Dr. Berland became head of the group and its size increased from five to ten members. When Mr. Lugo participated, his discussions centered on other patients' problems rather than his own. Although there is a benefit in listening and discussing other patients problems such benefit is not substantial when coupled with a denial of a patient's own problem as was the case with Mr. Lugo. One of the reasons given by Mr. Lugo for not participating was a CERonic sore throat. After Dr. Berland had the Petitioner examined by a physician who could find no medical basis for the problem, it was concluded by Dr. Berland that the disorder was psychogenic. During this period the Petitioner joined another group started by psychology interns at Florida State University which offered individual counseling in addition to group therapy. This group lasted for approximately two months. On August 6, 1980, Mr. Lugo was presented for staffing by his treatment team. He was informed that his group participation was inadequate and given three areas where improvements was necessary: (1) analysis of and solution to sexual problems, (2) anti-social, manipulative and rule-violating behavior, and (3) hostility in interactions with others. During the period September, 1980, to October, 1980, the Petitioner's behavior did not significantly change. Although he did attempt to cooperate by complaining less about his physical problems and changing his manner of dress, Petitioner's participation during group therapy remained superficial. After being informed by staff that his group participation remained inadequate, Mr. Lugo began writing summaries of his group experiences. He continued to write summaries after being informed by the staff that he should discuss experiences with the group rather than write summaries. During September to October, 1980, Mr. Lugo's attendance at group therapy was erratic. On October 29, 1980, the treatment team met and after reviewing the Petitioner's case, concluded that Mr. Lugo continued to meet the criteria of a sex offender under Chapter 917, Florida Statutes, and that he was not amenable to further treatment in the behavior disorder unit. Having exhausted Florida State Hospital's treatment capabilities, the staff recommended that the patient be presented to an Intra-Departmental Screening Committee to determine if further treatment capabilities existed within any other sex offender treatment programs in the Department. On December 24, 1980, the Committee considered Mr. Lugo's case and recommended that he be returned to the appropriate Circuit Court as a treatment failure. Petitioner has progressed in areas outside of group therapy including ward activities and vocational training. However, his involvement in these areas is insufficient to cause a meaningful alteration of Petitioner's aberrant behavior. Although individual therapy is available for patients such as the Petitioner, it was not attempted in this case because Mr. Lugo never achieved a level of progress necessary to make such therapy feasible. The Petitioner desires to remain in the program at Florida State Hospital and be given individual therapy and assignment to a different treatment team.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Frank J. Lugo, Jr., and that the said Frank J. Lugo, Jr. be returned to the committing court for further disposition. DONE and ENTERED this 26th day of June, 1981, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1981. COPIES FURNISHED: Steven L. Seliger, Esquire Post Office Box 324 Quincy, Florida 32351 Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue Did the Respondent, Zafar S. Shah, M.D. (Dr. Shah), commit the violations alleged in Counts 7-10 of the Administrative Complaint dated June 26, 2000, and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is the agency charged with regulating the practice of medicine in the State of Florida. Dr. Shah is and, at all times material hereto, has been licensed to practice medicine in the State of Florida, having been issued license number ME0071706. Dr. Shah is board-certified in internal medicine. Dr. Shah was born, and spent the first 29 years of his life, in Pakistan. Dr. Shah is 35 years of age. Dr. Shah began working at MidTown Clinic in Zephyrhills, Florida, in October 1996, and continued to work at MidTown Clinic until he was terminated in 1999. Tammy Rachel (Tammy) worked as a certified nursing assistant at MidTown Clinic from June 1996 until she was terminated in March 1999. Tammy worked with Dr. Shah as his Medical Assistant during Dr. Shah's tenure at MidTown Clinic. At all times material to this proceeding, Tammy was married to, and lived with, Corey Rachel, her husband. Although T. H., Tammy's oldest daughter, age approximately 15 years, was at all times material hereto, living in the Rachel household, her biological father was the custodial parent. Tammy's two younger daughters also lived with their mother in the Rachel household. At all times material to this proceeding, Dr. Shah did not have any family living in the United States. After Tammy began working for Dr. Shah, she and Dr. Shah became close friends. As a result, Tammy, along with her husband and her daughters, including T. H., spent a great deal of time with Dr. Shah. Tammy and her family treated Dr. Shah as if he was a member of their family. Tammy and her family, including her husband, spent almost every weekend with Dr. Shah at his home or on outings with Dr. Shah. Dr. Shah visited Tammy's home on week nights during this period of time. This visitation, both weekend and week nights, between Dr. Shah and Tammy's family occurred between December 1996 and August 1999. Initially, the relationship between Dr. Shah and Tammy was a working relationship. However, in February 1997, Dr. Shah and Tammy began a sexual relationship which lasted until March 1999. When confronted by Corey Rachel about her relationship with Dr. Shah, Tammy denied having a sexual relationship with Dr. Shah. In fact, Tammy did not tell Corey Rachel of her sexual relationship with Dr. Shah until after August 5, 1999. During the period of time that Dr. Shah and Tammy's family were visiting back and forth, Dr. Shah established a close relationship with T. H., in that Dr. Shah: (a) gave more attention to T. H. than the other girls; (b) spent more time with T. H. than with the other girls; and (c) spent time alone with T. H. when she cleaned his house and at other times at the mall, etc. Tammy was aware of the relationship between Dr. Shah and T. H. and that T. H. was alone with Dr. Shah on occasions. However, there is no evidence that this relationship was intimate or in any way sexual in nature, notwithstanding the testimony of Tammy or Corey Rachel to the contrary, which I find lacks any credibility in this regard. A prescription in the name of T. H. with a date of January 18, 1999, for 60 250-milligram tablets of Erythromycin, an antibiotic, was presented to the Winn Dixie Pharmacy by Corey Rachael. The prescription was filled on January 20, 1999, and picked up by Corey and Tammy Rachel on that same date. The prescription carried what appeared to be the signature of Dr. Shah. However, Dr. Shah denies that he ever prescribed Erythromycin for T. H. or that he wrote or signed the prescription in question. Tammy gave the medication to T. H., which T. H. used, including the refills, for the acne on her face. However, it was T. H.'s testimony, which I find to be credible, that Dr. Shah never discussed the problem of acne with her, and did not prescribe Erythromycin or any other medication to treat the acne on her face. However, T. H. did discuss the acne problem with Tammy. It was not unusual for Dr. Shah to carry prescription pads home with him, which were then available to those in his home. Likewise, it was not unusual for a Medical Assistant, such as Tammy, to have access to Dr. Shah's prescription pads at work. In fact, it was not unusual for a Medical Assistant to fill in the necessary information on a prescription for the doctor's signature. The MidTown Clinic has no medical records or any other records reflecting that Dr. Shah ever saw T. H. as a patient. Likewise, Dr. Shah did not have any records reflecting that he had ever treated T. H. as a patient or that he had given T. H. a physical examination. T. H. did not have a regular physician. When she needed medical treatment, T. H. went to the Health Department or Tammy would secure medical treatment for T. H. from physicians with whom Tammy worked. Other than the allegation concerning the acne problem, there is no allegation that Tammy sought medical treatment for T. H. from Dr. Shah, or that Dr. Shah saw T. H. as a patient. An analysis by the Board's handwriting expert indicates that the signature on the prescription in question is consistent with the presumed, not known, signature of Zafar Shah, M.D. on 20 other prescriptions taken from the Wal- Mart Pharmacy in Zephyrhills, Florida. The Board offered no evidence that the signatures on the 20 prescriptions from Wal-Mart were in fact the signature of Zafar Shah, M.D., other than the testimony of the pharmacist from Wal-Mart that the signatures on those 20 prescriptions filled at Wal-Mart appeared to him to be the signature of Zafar Shah, M.D. Although the Board's handwriting expert was given the opportunity to compare current samples of Dr. Shah's signature, to be given by Dr. Shah prior to the hearing, with the signature on the prescription in question, he chose not to make this comparison. The Board's handwriting expert did not compare the signature in question to any known signature of Zafar Shah, M.D. There is insufficient evidence to establish facts to show that Dr. Shah wrote the prescription in question, notwithstanding the testimony of the Board's handwriting expert to the contrary, which I find lacks credibility in this regard. Likewise, there is insufficient evidence to establish facts to show that Dr. Shah ever treated T. H. for the acne on her face or for any other medical problem or that a patient- physician relationship ever existed between Dr. Shah and T. H., notwithstanding the testimony of Tammy or Corey Rachel to the contrary, which I find lacks credibility in this regard. On August 5, 1999, Dr. Shah had dinner with Tammy, Corey Rachel, T. H., and Tammy's two younger daughters at the Rachel's home in Dade City, Florida, as he had on many previous occasions. On August 5, 1999, Dr. Shah was to spend the night in the Rachel's home, as he had on many previous occasions. As usual, Dr. Shah was to sleep on an air mattress in the living room. Around 11:00 p.m. Tammy and Corey Rachel went to bed. Sometime thereafter, T. H. went to her room to prepare for bed and Dr. Shah proceeded to prepare for bed in the living room on the air mattress. Around 1:00 a.m. on August 6, 1999, Tammy testified that she was awakened by what she thought was a noise and got out of bed. After getting out of bed, Tammy checked on her two younger daughters, and then checked on T. H. who was not in her bedroom. Tammy then proceeded to look elsewhere in the house for T. H. Tammy also testified that when she walked into the living room she observed T. H. and Dr. Shah having, what appeared to her, to be sexual intercourse. Tammy became very upset and began beating Dr. Shah on the back and calling Corey Rachel. Dr. Shah attempted to protect himself from Tammy's onslaught by gathering his belongings and leaving the house. During the time Tammy was beating on Dr. Shah, she also slapped T. H.'s face. Corey responded to Tammy and instructed T. H. to go to her room. T. H. then went to her room. At this time, T. H. still had on the long T-shirt and under pants, which she had worn to bed. Likewise, Dr. Shaw had on the clothing that he had worn to bed. Tammy reported the incident to the Pasco County Sheriff's Department. Deputy Timothy Harris and Sergeant Rowan responded to the call by Tammy. Upon arrival at the Rachel home, the officers spoke with Tammy, Corey Rachel, and T. H. When T. H. was interviewed by Deputy Harris, she told Deputy Harris that she and Dr. Shah had been engaged in sexual intercourse at the time Tammy came into the living room. In fact, T. H. related a very explicit account of the incident, using language which was not in her normal vocabulary. T. H. also provided a written statement of the incident to Deputy Harris where she again admitted to having sex with Dr. Shah. After providing the written statement, T. H. went home with her father. T. H. was not under oath on either of these occasions. Deputy Harris inspected the scene of the incident for physical evidence that sexual intercourse had taken place between T. H. and Dr. Shah. Deputy Harris did not find any physical evidence that sexual intercourse had occurred. Deputy Harris also took some clothing that T. H. had been wearing as evidence for the purpose of examining for evidence of sexual intercourse. Upon examination, this clothing did not yield any evidence of sexual intercourse. Later in the morning of August 6, 1999, Detective Ball went to the home of Timothy Harvey and interviewed T. H. In this interview, T. H. again stated that she and Dr. Shah were engaged in sexual intercourse earlier that morning at the Rachel's home, and had, on previous occasions, had sexual intercourse at the Rachel's residence and at Dr. Shah's residence. She also related that she was in love with Dr. Shah and that they were going to be married when she turned 18 years of age. T. H. further related to Detective Ball that Tammy was jealous of her relationship with Dr. Shah. When Detective Ball requested that T. H. undergo a physical examination to uncover possible evidence of sexual intercourse between T. H. and Dr. Shah, T. H. refused to undergo the physical examination. T. H.'s reason for not taking the physical examination was that she loved Dr. Shah and any evidence found would obviously be used against him. Later, during the day of August 6, 1999, Tammy and Dr. Shah agreed to meet at Brewmasters, a restaurant in Wesley Chapel, halfway between Dr. Shah's house and Dade City, Florida. This meeting was arranged by Tammy at the request of the Pasco County Sheriff's office in an attempt to get Dr. Shah to admit to having had sexual intercourse with T. H. on August 6, 1999. Tammy was wired and the Detectives from the Pasco County Sheriff's office attempted to monitor the conversation. However, the monitoring was not too successful. During this meeting between Dr. Shah and Tammy, which lasted approximately 45 minutes, Dr. Shah repeatedly denied having sexual intercourse with T. H. At the conclusion of this meeting with Tammy, the Detectives approached Dr. Shah and requested that he accompany them to the County Jail. Although Dr. Shah was not officially placed under arrest at this time, he was unsure of his rights and felt intimated by the Detectives. The Detectives did not offer Dr. Shah the opportunity to drive his vehicle to the County Jail. Dr. Shah was transported to the County Jail by the Detectives. Once at the County Jail, the Detectives went through their interrogation (interview) routine. Dr. Shah's understanding was that the Detectives were giving him the choice of admitting to having had consensual sexual intercourse with T. H. or to having raped T. H. With that understanding, Dr. Shah admitted to having had consensual sexual intercourse with T. H. Dr. Shah was upset, confused and intimidated by the Detectives. Dr. Shah gave the Detectives the answers that he assumed they wanted. Upon being advised of Miranda rights, Dr. Shah requested an attorney and made no further statements. On September 28, 1999, Detective Ball and Bill Joseph, a Crime Scene Technician, went to the Rachel's home with a Lumalite for the purpose of illuminating body fluids that may have been left on the carpet or any other area as result of the alleged sexual intercourse. No evidence of body fluids was found. Under oath, during the State Attorney's investigation, T. H. recanted the story given in her written statement on August 6, 1999, and the story given verbally to Deputy Harris and Deputy Ball on August 6, 1999, and denied that she and Dr. Shah were engaged in sexual intercourse at the Rachel's home on August 6, 1999, when Tammy came into the living room or at any time previous to August 6, 1999. Subsequently, the State Attorney, on February 14, 2000, filed a No Information concluding that the facts and circumstances of this case did not warrant prosecution at that time. Again, under oath at the hearing, T. H. recanted the story given in her written statement on August 6, 1999, and the story given verbally to Deputy Harris and Deputy Ball on August 6, 1999, and denied that she and Dr. Shah were engaged in sexual intercourse at the Rachel's home on August 6, 1999, when Tammy came into the living room or at any other time. However, T. H. admitted to having a sexual relationship with two young males prior to August 1999. T. H.'s reason for not telling the truth in her recitation of the facts in her initial interview with Deputy Harris or her written voluntary statement to Deputy Harris or in her interview with Deputy Ball was that she was aware of Tammy's involvement with Dr. Shah and was attempting to make Tammy jealous because she was mad with Tammy due to their fight the previous evening and because of other problems that she was experiencing with Tammy. Additionally, T. H. had overheard a conversation between Tammy and Dr. Shah wherein Tammy was discussing divorcing Corey Rachel and marrying Dr. Shah, which upset T. H. T. H. testified that sometime after she and Dr. Shah had gone to bed in their respective rooms, she went in the living room to talk to Dr. Shah about the situation between she and Tammy as she had on other occasions. During their conversation, T. H. was sitting close to Dr. Shah. As their conversation progressed, T. H. became emotional and Dr. Shah "put his arm around her shoulder" to console her as he had on other occasions when she would discuss problems between her and Tammy. It was in this posture that Tammy found Dr. Shah and T. H. at approximately 1:00 a.m. on August 6, 1999. There is insufficient evidence to establish facts to show that T. H. and Dr. Shah were engaged in sexual intercourse at the Rachel's home on August 6, 1999, or at any time previous to that date, notwithstanding: (a) Tammy's testimony to the contrary, which I find lacks credibility due to her demeanor at the hearing and her involvement with Dr. Shah; (b) T. H.'s admission that sexual intercourse had occurred, which T. H. later recanted under oath, and which she testified was only done for the purpose of making Tammy jealous; and (c) Dr. Shah's admission, while being interrogated, that consensual sex had occurred between he and T. H., which he later recanted under oath at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order finding Dr. Shah not guilty of the charges outlined in Counts 7-10 of the Administrative Complaint and dismissing the charges outlined in Counts 7-10 of the Administrative Complaint. DONE AND ENTERED this 31st day of August, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2001. COPIES FURNISHED: Robert C. Byerts, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Jack D. Hoogewind, Esquire 33283 Cortez Boulevard Dade City, Florida 33523 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701
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, Gerald R. Straw, through sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes.
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 December 30, 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. Final hearing in this cause was conducted on February 25, 1982. In the course of the final hearing, the Petitioner testified and offered as witnesses: Lois Turner, his mother; Alva Martin, R.N.; Larry Annis, Clinical Psychologist, and Kenneth Edwards, Vocational Education Instructor. The Respondent offered as witnesses: Robert Alcorn, Clinical Director for the Mentally Disordered Sex Offender Program at Florida State Hospital, and Larry Annis, Clinical Psychologist. The Respondent presented one (1) composite exhibit which was received into evidence. At all times pertinent to this proceeding, Petitioner has been in the custody of Respondent, in keeping with orders of court. His commitment has been on the basis of Chapter 917, Florida Statutes (1977), involving a breaking and entering criminal offense with related assault charges. In addition, the Petitioner has a past history in New York State for the criminal offense of sexual mischief. The arrest for the offenses in Florida occurred on July 22, 1977, and the Petitioner was committed to the Sexual Offender Program at North Florida Evaluation and Treatment Center on March 9, 1978. On August 3, 1978, a recommendation was made by staff of that facility to return the Petitioner to court for further disposition, based upon the belief that treatment had been exhausted. On September 13, 1978, he was released from that hospital program. That facility had not contacted other sex offender programs in the State of Florida prior to the release of the Petitioner and as a consequence, the Petitioner was recommitted to the Respondent by order of court dated October 31, 1978. He was placed in the sex offender program at Florida State Hospital in Chattahoochee, Florida, on January 27, 1979, and has resided in that program since that time. During his stay at Florida State Hospital, the Petitioner has undergone treatment in the program for the benefit of sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in dealing with the underlying disorder which caused his placement has reached a juncture where improvement is no longer expected in the patient. 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. The program at Florida State Hospital has as its main focus the utilization of group therapy with adjunctive programs in recreation and occupational therapy, and this treatment regimen relies heavily on a patient's self-motivation. Respondent's Exhibit 1, admitted into evidence, is constituted of a series of clinical summaries related to the patient's performance during the course of his treatment at Florida State Hospital. In sum, the opinions stated in the clinical summaries accurately indicate that the Florida State Hospital has exhausted all available treatment for the Petitioner's underlying condition. Moreover, the presentation of the Petitioner's case to the Intra-Departmental Screening Committee, which is constituted of the administrative personnel of the various sex offender programs in the State of Florida, brought a correct perception that the Respondent has exhausted all available treatment for the Petitioner. Finally, the testimony given in the course of the hearing was in accord with those opinions expressed in the clinical summaries and the attitude of the Intra-Departmental Screening Committee. Petitioner's primary therapist, beginning in August, 1981, and continuing until the time of hearing, gave testimony in the course of the hearing. The therapist is Larry Annis, Clinical Psychologist. Annis shared the responsibility with a co-therapist until November, 1981, when he became the sole therapist for the Petitioner. Annis' testimony established that the Petitioner has been given a full and complete opportunity for participation in group therapy and in addition has been exposed to individual therapy sessions, and adjunctive therapy; to include, school, occupation and vocational training, ward government and participation in the ward milieu. The observed pattern of the Petitioner's participation in group therapy, on the part of Annis, is one of noting that the Petitioner talked to other persons in the group about their problems, but avoided talking about himself. In the group therapy sessions, Straw has denied having sexual problems and denied any guilt in connection with the underlying criminal offenses for which he stands convicted. (This was a similar attitude during the course of his stay at North Florida Evaluation and Treatment Center.) Annis indicated that the Petitioner has done well in adjunctive therapy, in particular, electrical wiring in which his performance has been exemplary. The Petitioner has not been found to be a management problem in terms of his conduct, according to Annis. The comments by Annis are correct. From Annis' observations, the Petitioner presents himself as attentative and having the ability to verbalize his feelings; however, his progress in the group therapy sessions has not been significant. In the therapy sessions, Annis has correctly identified that Straw is not interested in emotional discussions involving topics such as personal feelings, likes and dislikes, depression and anger. Petitioner is more interested in data collection and inquiring about why something is required, which is a more superficial concern. In the group sessions, Annis has found Petitioner to be truthful, if unwilling to explore personal areas such as those mentioned above, and in addition, sexual concerns. In the latter course of treatment, Annis has indicated that the matters of concern on the subject of the Petitioner's progress in the program relate to the Petitioner's ability to admit to negative feelings, anger and to explore antecedents to this type of emotion in order to arrive at alternative responses to he made to those emotions. Other specific concerns are as outlined in the fourteen (14) problem areas discussed in the August 13, 1981, clinical summary which is part of Respondent's Exhibit 1. Annis further indicated at the point where the determination was made that the treatment had been exhausted, that he, as therapist, has nonetheless continued to treat the Petitioner's condition and has undertaken a new method of dealing with the problem, to include the removal of bimonthly reports in trying to see how Petitioner would perform in a less structured environment. This technique has not been one leading to progress on the part of the Petitioner. In summary, Annis has correctly concluded that the Petitioner has reached maximum benefits from the program at Chattahoochee, and having exhausted available treatment, there would be no benefit to be derived by the Petitioner's continued participation in the program. The Unit Director at Florida State, Robert H. Alcorn, testified that the Petitioner's stay in the program was about average in terms of duration. Alcorn has observed no significant progress in the Petitioner in dealing with the underlying sexual problem. Alcorn finds the Petitioner to be socially isolated, and a person who refuses to discuss emotional matters and issues central to himself. Alcorn notes that the Petitioner deals in universal terms when dealing with the matters of daily life, to include other members of the sex offender program. Alcorn's observations are valid, and in the face of these observations, Alcorn presented the Petitioner's case to the Intra-Departmental Screening Committee and no further placement could be found for the Petitioner. In other words, it was correctly concluded that the Department, as well as Florida State Hospital had exhausted all appropriate treatment for the Petitioner. Petitioner's mother, Lois Turner, gave testimony. She has seen progress in the Petitioner's emotional demeanor and that opinion is borne out by observations of persons in the treatment program. In particular, HRS. Turner notes that her son does not now have periods in which his thinking seems to be disassociative. This is as contrasted with her observations of her son five (5) years ago when she found him to be very disoriented. HRS. Turner also observed that the Petitioner has been truthful with her in her discussions with him. Alva Martin, R.N. and therapist in the Sex Offender Program at Chattahoochee, indicated that she had treated the Petitioner from November, 1979, through May, 1980. During the course of her treatment, she observed that the Petitioner had improved in that he did not appear as withdrawn and became more involved in activities with other persons within the program. The goals in this entry level into the Sex Offender Program, which were set out by Martin for the benefit of the Petitioner, were to try to get Straw to converse more with other people about his problems and to have general conversations with individuals in the ward milieu. It was not the intention of this element of the therapy to question the Petitioner about the underlying charges for which he was placed in the program. Martin noted some progress on the part of the Petitioner in his dealing with his angry feelings and improvement in his ability to verbalize. Again, from her observations, the Petitioner was always truthful in his discussions. Kenneth Edwards, a Vocational Instructor at Florida State Hospital, first met the Petitioner in April of 1980. At that time, Edwards noted that the Petitioner lacked self-confidence and an ability to relate to others. Petitioner tended to stay by himself. There has been a dramatic improvement in this circumstance to the extent that the Petitioner now serves as an instructor for other program participants, in the field of television repair. Edwards feels that he has a good relationship with Straw and feels that Straw has improved in his relationship with other persons. Petitioner, in his testimony, indicated that he feels that he is not guilty of the offenses as charged. In addition, he feels that he has progressed while being treated in the program at Florida State Hospital, and although he feels that he still has an underlying problem with sexual acting out, he feels that he has completed the program successfully and could control any temptations of a sexual nature. He also feels that he has discussed his underlying sexual problems in the past and would be willing to in the future. He feels that he is being removed from the program because he refuses to admit that he is guilty of committing the offenses which caused him to be placed in the program. He also takes issue with the fourteen (14) problem areas set forth in the August 13, 1981, clinical summary. He thinks that any human being would have problems similar to that nature and that those are problems which are not unique to Gerald Straw. 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 suffer with an underlying sexual disorder.
The Issue Is the Petitioner qualified for licensure?
Findings Of Fact On October 4, 1989, Petitioner filed his application for licensure as a real estate salesman. Question #7 of the application asked whether the applicant (Petitioner) had ever been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere even if adjudication was withheld (Respondent's Composite Exhibit No. 1). The Petitioner admitted to having been arrested on July 3, 1984 and to pleading nolo contendere on October 17, 1985 to committing a sex offense against a child and the commission of lewd and lascivious acts. The Petitioner was placed on probation for ten (10) years for the first offense and was sentenced to three years imprisonment for the second offense with thirty-five (35) days credited for time served. A condition of his probation is that he cannot reside or stay overnight with a child under the age of 18. At the formal hearing in this case, Petitioner testified on his own behalf and admitted that he had molested his oldest daughter, age 11, and pleaded nolo contendere to said offense in 1984 and three (3) months later molested both his oldest daughter, then age 12, and his youngest daughter, then age 9, and pleaded guilty to said offenses. Petitioner further testified that the initial offense had been committed over a period of approximately two weeks and that the second offense had been committed over a period of approximately two months. The offenses occurred while he was undergoing rehabilitation therapy for the traumatic amputation of his leg. Since his release from jail, Petitioner has received treatment for his behavior at the Florida Mental Health Institute, North Florida Evaluation and Treatment Center and Community Behavioral Services. Petitioner's brother testified concerning his brother's life. The Petitioner had been an Eagle Scout; had been a scoutmaster; had been a member of the Navy Reserve and had had no problems prior to loosing his leg in an accident. Since his release from jail, the Petitioner has provided child support to his ex-wife and daughters. Petitioner had resided with and been employed by his brother until his brother adopted a child. The condition of the Petitioner's probation that the Petitioner can not reside with a child under the age of 18 required the Petitioner to change his residence and employment with his brother. He was employed by Kelly Temporary Services at the time of hearing and was working in a bank in customer service. The Petitioner has remained in therapy as required by his probation. The Petitioner has been in the presence of children when other adults were present since his release from jail and the Petitioner's behavior was exemplary. The Petitioner's brother opined that the Petitioner had "rehabilitated himself," and pointed out that very severe consequences would result to Petitioner for a third offense. The Petitioner admitted that the offenses had occurred in isolated settings when no other adults were present.
Recommendation Based on the foregoing, it is RECOMMENDED that the Petitioner's application to take the state examination for licensure as a real estate salesman be denied. DONE AND ENTERED this 2nd day of October, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1844 The Petitioner wrote a letter to the Hearing Officer, which was read and considered. Respondent's Proposed Findings of Fact 1-6. Adopted. 7. Rejected, as irrelevant. COPIES FURNISHED: Joselyn M. Price, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, FL 32801 Grady William Aplin, Jr. 905 South Kings Avenue Brandon, FL 33511 Darlene F. Keller, Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
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 The issue is whether respondent's law enforcement certification should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Base upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Lloyd H. Sisk, held law enforcement certificate number 2252 issued by petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission). Respondent has held his license since April 3, 1971. When the events herein occurred, Sisk was employed as a detective with the Charlotte County Sheriff's Department. The charges against respondent are based upon an allegation of sexual abuse lodged against him by his niece, S. C., who is now seventeen years of age. The abuse allegedly occurred between December 1986 and February 1988. To place this controversy in proper perspective, a brief discussion of the living arrangements in the Sisk household is appropriate. In 1983 respondent, his wife, Brenda, and Brenda's mother (grandmother) decided to jointly purchase a home in Port Charlotte, Florida. Also residing with the Sisks were their teen-age son, Jeffrey, and the alleged victim. The grandmother had been given legal custody over the alleged victim, who was the daughter of Janis, Brenda's sister. Janis lived in Pinellas County, but because of various legal and personal problems, she had relinquished custody of her daughter to the grandmother shortly after S. C.'s birth. In late 1986, and over the objections of the grandmother and alleged victim, the Sisks decided to sell the home. This in turn engendered antagonism and animosity between the members of the family component and eventually culminated in the sexual abuse charges being made. The home was finally sold in February 1988, or more than a year later. Before the sale occurred, the Sisks advised the grandmother and alleged victim that, because of constant friction, the grandmother and S. C. would not live with the Sisks and their son when they relocated to a new home. At almost the same time the sale took place, S. C. began making sexual abuse allegations against respondent. In this regard, the testimony is sharply conflicting. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence. The allegations first surfaced on an undisclosed date in February 1988 when S. C. told her sixteen year old boyfriend, James, that respondent had touched her breasts, buttocks and vaginal area while giving her back massages and had put a condom on his penis while in her presence. On February 17, 1988, S. C. telephoned her mother in Pinellas County and said respondent had been coming home in the afternoon and asking to give her backrubs. The alleged victim further complained that, during those backrubs, respondent was "rubbing her butt and in between her legs". That same day, S. C. told her grandmother that respondent had touched her breasts, buttocks and vaginal area while giving her backrubs. Three days later, S. C.'s mother, while in an intoxicated state, telephoned the Largo Police Department and relate the abuse allegations to a detective. That led to an investigation by the Charlotte County Sheriff's Office and the eventual filing of criminal charges by the state attorney and sexual abuse charges by the Department of Health and Rehabilitative Services (HRS). 1/ At final hearing, the former boyfriend, grandmother and natural mother related the allegations described in the previous finding of fact. In addition, statements made by S. C. to an HRS counselor were offered into evidence. Finally, the alleged victim gave her version of what transpired. This included a rather graphic account of respondent, while in the presence of S. C., placing a condom on his penis and masturbating, and after attaining an erection a few minutes later, positioning his body next to S. C. and demonstrating various coital positions to his niece. The testimony of the alleged victim is not accepted as being credible for a number of reasons. To begin with, S. C. was extremely upset with respondent because the family home was being sold and she had been told that she could not remain with the Sisks. Her animosity towards respondent is also evidenced by the fact that, just prior to final hearing, she encouraged her mother (Janis) to "slam him (respondent)" with her testimony. It is also noted that the alleged victim's testimony at hearing differed in several material respects with the complaints she made to the Commission, HRS and in prior court testimony. Finally, the testimony of Lloyd, Brenda and Jeffrey Sisk, which is accepted as being credible, demonstrated numerous inconsistencies in S. C.'s testimony. Accordingly, it is found that respondent did not commit a lewd and lascivious act in the presence of his niece by exposing his penis and masturbating, and he did not handle her breasts, buttocks and vaginal area as alleged in the administrative complaint.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED that the administrative complaint be DISMISSED, with prejudice. DONE and ENTERED this 27th day of August, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Heading Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1990.
