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
Findings Of Fact Dr. Lawrence A. Hall is licensed by the Florida State Board of Dentistry and the Hearing Officer has jurisdiction over the Respondent and the offenses alleged. During the time periods alleged Respondent smoked marijuana in the office after office hours in company with employees including a 16-year-old employee. During the time periods alleged Respondent wrote numerous prescriptions in the names of employees for controlled substances or drugs to be used for his personal use or for the use of his wife or friends. These drugs consisted of Eskatrol, Dexadrine, Dexamyl, Percodan, and Quaalude and were taken by Hall during office hours while he was performing work on dental patients. Some of these drugs made Respondent nervous and irritable and adversely affected his practice of dentistry. During the period between March, 1974 and July, 1975 Hall habitually used controlled substances add drugs. On many occasions he would be late getting to the office for morning appointments and late returning from lunch for afternoon appointments. Occasionally he would fail to come to the office at all and scheduled appointments would have to be cancelled - usually after the patient had appeared for the appointment. Hall wrote prescriptions for his wife and for his employees for controlled substances and drugs for uses not related to the practice of dentistry. These drugs consisted of amphetamines, Quaalude, and Percodan, and were often picked up from the pharmacy by one of his office employees not named in the prescription. Hall knew that his federal narcotics license did not authorize him to write prescriptions for drugs not intended for use in the practice of dentistry. Amphetamines are listed as Class II controlled substances in Chapter 893 F.S. On one occasion, while treating a small child, Hall became exasperated, threw a syringe across the room, then ran out of the office to jog around the adjacent shopping center for about 15 minutes to regain his composure. On another occasion a patient reacted adversely to an anesthetic and was thereafter properly treated by Hall to restore her breathing to normal. The dental procedure for which the anesthetic was given was then performed satisfactorily. The patient involved remained a patient of Hall until she moved to a location too far away to continue to use Hall as her dentist. She was satisfied with the dental treatment received from Hall. Hall sought help in his personal and drug related problems from his minister. No evidence was presented that Hall performed unsatisfactory dental work. To the contrary, all evidence presented in this regard was to the effect that Hall's dental work was above average. At the time of the hearing and for some months prior thereto Hall was not taking drugs.
The Issue The issue presented herein is whether or not Union Correctional Institution's Policy and Procedure Directive 3.04.11 is a rule not promulgated pursuant to Section 120.54, Florida Statutes, and therefore is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner is an inmate at Union Correctional Institution at Raiford, Florida. Petitioner is a black male affected by pseudofolliculitis barbae or "PFB," a skin condition caused by ingrown facial hairs which manifests itself in lesions and irritation in affected areas. The best treatment for "PFB" is to refrain from shaving in the affected areas and allowing the facial hair to grow. Petitioner has allowed his facial hair to grow and does not at the present time shave. If an inmate chose, or for some reason was required to shave and irritation developed, medicinal preparations available at the institution's infirmary could be administered to alleviate the irritation. Further, should an infection or other serious medical problem develop as a result of the shave, arrangements would be made for such an inmate to see a dermatologist at the Lake Butler Institution's infirmary. Alcohol, although a drying agent, would further irritate the affected area. (Testimony of Dr. Julius Avilez, general practitioner employed at Union Correctional Institution's infirmary) On February 26, 1981, Respondent issued Policy and Procedure Directive 3.04.11, Inmate Package Permit. The directive indicated that items containing alcohol would not be accepted in packages received by inmates at all institutions and community facilities within the Department of Corrections. Subsequent to the issuance of the above directive, the Petitioner, on February 3, 1984, had several items confiscated from an approved package by Officer K. E. Scates, a Property Room Officer at the institution. Two plastic containers of splash-on aftershave cologne, trade name "Brut" with S and D alcohol content, were confiscated and are presently being held in the institution's Property Room as property of the State. The aftershave lotion was confiscated by the institution authorities pursuant to the above directive and the Petitioner was notified that the substance would be forfeited unless arrangements were made for return of the substance to either its source or Petitioner's family.
The Issue The issue presented here concerns the jurisdiction of the Respondent State of Florida, Department of Health and Rehabilitative Services, to pass on the issue of whether the Petitioner, John Jackson, meets the definition of sex offender within the meaning of Chapter 917, Florida Statutes; it having been determined that the Department has exhausted all treatment for the Petitioner. Secondarily, this Recommended Order considers the question of whether the Petitioner can, through the process of this administrative hearing, controvert the clinical summary dated October 13, 1980, by challenging the findings of that report, even if it has been determined that the Department has exhausted all treatment for the Petitioner and the Department is without jurisdiction to enter a final order on the question of whether the Petitioner meets the definition of sex offender within the meaning of Chapter 917, Florida Statutes. Of particular interest on the secondary issue is that part of the report which indicates that the Petitioner still meets the definition of sex offender.
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 5, 1981. Specifically, the Petition asked that a Subsection 120.57(1), Florida Statutes, hearing be conducted to consider the question of whether the Respondent State of Florida, Department of Health and Rehabilitative Services has exhausted all appropriate treatment for the Petitioner John Jackson, who was enrolled in one of the Respondent's sex offender programs at Florida State Hospital, Chattahoochee, Florida. The prayer for relief offered by the Petitioner was in keeping with the language of Section 917.20, Florida Statutes (1977), which states: . . . if the department returns an offender to the court because the department has determined that it has exhausted all treatment of the offender, the court shall remove the offender from the custody of the department. A continuance of the formal hearing scheduled for January 30, 1981, was granted and the final hearing was eventually held on March 3, 1981. At the commencement of the hearing, counsel for the Petitioner promoted a substantial change to the Petitioner's claim for relief. That change was one which conceded the dispute fashioned in the details of the "Petition for Administrative Hearing," in that the Petitioner and Respondent agree that the Respondent had exhausted all appropriate treatment for the Petitioner through the programs for sex offenders offered in the State of Florida. The Petitioner then attempted to amend his Petition to request that a final order be entered by the Secretary, Department of Health and Rehabilitative Services which decided if the Petitioner continued to meet the definition of sex offender found in Chapter 917, Florida Statutes. Additionally, the Petitioner, in the person of his counsel, attempted to amend the Petition to attack the details of the staff report of October 13, 1980, dealing with the status of the Petitioner's condition with particular emphasis on the finding that Jackson continued to he a sex offender. The Respondent was opposed to the amendment on the ground of lack of jurisdiction on the part of the Respondent to consider these claims, it having been determined that the Respondent had exhausted treatment for the Petitioner and moreover, the Respondent objected to the change in the Petition which did not grant the Respondent sufficient notice to prepare to defend against the accusations. The Respondent's position was found to be meritorious and the reasons for that decision will be discussed in the Conclusions of Law section of this Recommended Order.
The Issue The issue in this case is whether the allegations set forth in the First Corrected Amended Administrative Complaint filed by the Department of Health (Petitioner) against Deshon A. Davis, CNA (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of nursing assistance. At all times material to this case, the Respondent was licensed as a CNA in the State of Florida, holding license no. CNA 274735. At all times material to this case, the Respondent was employed as a CNA by Health First Cape Canaveral Hospital (hereinafter “Hospital”) in Cocoa Beach, Florida. On April 23, 2014, Patient K.H. (hereinafter “patient”) was admitted to the Hospital. The patient was discharged from the Hospital on May 1, 2014. During the time the patient was admitted to the Hospital, he was able to speak; able to get out of his bed and exit the room; and able to use the bathroom without assistance. On April 25, 2014, the patient contacted Hospital authorities and reported that on the two previous days, the Respondent had committed sexual misconduct. At the hearing, the patient testified that on April 23, 2014, the Respondent entered the room and stated that he needed to bathe the patient. The Respondent testified that the patient had soiled his clothing, and that he entered the room to remove the clothing, clean the patient, and provide fresh clothing to the patient. At the time, the patient was in a semi-private room, with another patient in the other bed. The Respondent pulled the privacy curtain around the patient’s bed to separate the beds and to shield the patient from view. The patient testified that the Respondent removed the patient’s clothing, applied an unidentified lotion to the patient’s penis, and roughly manipulated the patient’s penis in a masturbatory manner for at least five minutes until the patient ejaculated. The patient testified that the Respondent then exited the room, leaving the patient to wipe off the ejaculate. Although the patient testified that he requested that the Respondent cease the manipulation, the patient made no apparent effort to get out of the bed or to contact anyone for assistance during the alleged event. The Respondent denied that he applied a lotion to the patient’s penis or that any sexual contact occurred on April 23, 2014. The Respondent testified that while he was cleaning the patient, he observed a “rash” on the patient’s thigh, and that he applied a “barrier cream” to the rash. Although the Respondent testified that he informed the Hospital nursing staff about the rash on April 23, 2014, the registered nurses assigned to care for the patient testified that they had no recollection that the Respondent advised them that the patient had a rash. The patient’s medical records contain no documentation of a rash or of the application of any medication related to a rash. No nurse approved or directed the application of any substance to the patient for a rash. The patient testified that the second incident occurred on or about April 24, 2014. Although the patient had been moved to another semi-private room, only the Respondent and the patient were present in the room at the time of the alleged event. The patient testified that the Respondent entered the room, made a comment about the patient “bringing in rashes,” exposed the patient’s genital area, and then again, after applying a lotion to his penis, roughly manipulated the patient’s penis in a masturbatory manner for approximately ten minutes until the patient ejaculated. The patient testified that the Respondent left the room, and the patient had to again clean himself. Again, although the patient testified that he asked the Respondent to cease the sexual manipulation, the patient made no apparent effort to get out of the bed or to contact anyone for assistance. The Respondent denied the alleged sexual contact. The Respondent testified that he entered the patient’s room because the patient’s “call light” was on. The Respondent testified he heard the patient say “ouch” while using a plastic urinal. The Respondent testified that he thereafter observed a “cut” on the patient’s penis. He also testified that the thigh rash was still visible. The Respondent suggested that abrasions caused by plastic urinals are not uncommon. There is no credible evidence that the patient’s penis was injured on April 24, 2014, whether by a plastic urinal or otherwise. The Respondent testified that after he obtained the patient’s consent, he applied the “barrier cream” to the patient’s penis and thigh. There is no evidence that the Respondent advised the Hospital nursing staff about any injury to the patient’s penis. The patient’s medical records contain no documentation of a wound or abrasion on the patient’s penis or of a rash on his thigh. No nurse approved or directed the application of any substance to the patient for a wound or a rash. On April 25, 2014, the patient contacted Hospital authorities and reported the alleged sexual improprieties. The patient’s medical records indicate that from the time of the patient’s Hospital admission on April 23, 2014, until April 25, 2014, the patient had been resting and calm. According to the Hospital’s representatives who spoke to the patient on April 25, 2014, he was emotional and “very distraught” while describing the alleged activities. A physical examination of the patient was conducted on April 25, 2014, during which no visible rash on the thigh or injury to the penis was observed. According to the expert testimony of Lynda Tiefel, R.N., a CNA must report the presence of a wound or a rash on a patient to a registered nurse. It is the responsibility of the registered nurse to assess the condition and determine whether a physician referral should occur. Other than reporting the condition to the nurse, a CNA should take no action unless directed to do so by the nurse. Ms. Tiefel’s testimony was persuasive and has been credited. According to the expert testimony of Victor Mendez, C.N.A., a CNA is not qualified to diagnose a medical condition. A CNA is required to document the presence of a rash or wound, and advise the appropriate registered nurse of the condition. The CNA may apply medication to a rash or wound only after receiving direction to do so from the registered nurse, and such application should take no more than 15 seconds. Mr. Mendez’s testimony was persuasive and has been credited. The Hospital conducted an internal investigation regarding the allegations, and subsequently terminated the Respondent’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Nursing, enter a final order: finding the Respondent guilty of violating sections 464.204(1)(b) and 456.072(1)(o); placing the Respondent on probation for a period of one year, during which the Respondent shall complete such continuing education courses as specified by the Petitioner; and imposing an administrative fine of $125.00. DONE AND ENTERED this 11th day of September, 2015, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2015. COPIES FURNISHED: Deshon A. Davis, C.N.A. 3620 East Powder Horn Road Titusville, Florida 32796 Lucas Lawrence May, Esquire Department of Health Prosecution Services Unit Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Judson Searcy, Esquire Department of Health Prosecution Services Unit Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Ann L. Prescott, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Jamison Jessup, Qualified Representative 557 Noremac Avenue Deltona, Florida 32738 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health Bin C-02 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Ann-Lynn Denker, PhD, ARNP, Chair Board of Nursing Department of Health Bin C-02 4052 Bald Cypress Way Tallahassee, Florida 32399
The Issue The issue in this case is whether Respondent, Stephen H. Rosenthal, committed the offenses alleged in an Administrative Complaint issued on or about December 22, 1999, by Petitioner, Tom Gallagher, as Commissioner of Education and, if so, what penalty should be imposed upon Respondent.
Findings Of Fact Respondent, Stephen Rosenthal, holds a valid Florida Educator's Certificate, Number 644646. Respondent's Certificate covers the areas of Elementary Education and Mathematics and is valid through June 30, 2001. At all times relevant to this matter, Respondent was employed as a fifth-grade teacher at Manatee Elementary School, an elementary school in the St. Lucie County School District. During the fall of 1997 Paul E. Griffeth, a detective with the Port St. Lucie Police Department, was informed that Respondent had been in contact through the internet with a detective of the Keene, New Hampshire Police Department, that Respondent believed that he was communicating with a minor, and that Respondent had sent the Keene detective pornographic pictures via the Internet. Based upon the information Officer Griffeth received, a search warrant was obtained. The search warrant authorized a search of an address where Respondent was believed to reside. Officer Griffeth, Todd Schrader, then a detective with the Port St. Lucie Police Department, and a Detective Calabrese attempted to execute the search warrant. When they served the search warrant on Respondent they learned that Respondent no longer lived at the address identified in the search warrant. Respondent informed Detectives Schrader and Griffeth of his new residence address and agreed to allow them to search his residence without obtaining a new warrant. Respondent inquired into the reason for the search warrant and was told that it was believed that he was suspected of having sent child pornography on the internet and of having files on his computer and computer disks in his residence that contained child pornography. Respondent initially denied these allegations. Detective Schrader asked Respondent if he knew who "Luke 14" was. Respondent admitted that he believed that "Luke 14" was a 14-year-old male. Detective Schrader told Respondent that "Luke 14" was a police detective. Respondent shook his head and said, "No, no." Respondent later admitted that he had sent pornographic pictures, including pictures of Respondent naked, to "Luke 14," believing he was a 14-year-old boy. Respondent then admitted to Detective Schrader that he had a number of pictures that he had downloaded from the internet and acknowledged that some of the pictures could be construed as child pornography. Respondent also admitted that he had numerous diskettes with pictures of minors that he had downloaded from the internet. When the detectives entered Respondent's residence, they found two pictures of two individual nude males, with their genitalia exposed, which the detectives believed to be between the ages of 12 to 16. Respondent admitted that he believed that that was the age of the boys. Respondent also admitted that he had downloaded the pictures off the internet and that he had printed them. A number of diskettes were found at Respondent's residence which contained pictures of males with their genitalia exposed. Although some of the males pictured appeared to be minors, the evidence failed to prove that they were in fact pictures of minors. 1/ On November 3, 1997, Respondent was arrested. He was charged in an Indictment filed before the United States District Court for the Southern District of Florida (hereinafter referred to as the "U.S. District Court") with eight counts of Knowingly Receiving a Visual Depiction of a Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer and one count of Having Possession of Three or More Visual Depictions of a Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer. In March 1998 Respondent entered into a Plea Agreement in the U.S. District Court, agreeing, in part, to the following: The [Respondent] agrees to plead guilty to Counts 1 and 3 of the Indictment, which charges the defendant with the knowing receipt of child pornography in interstate commerce by computer, that is, visual depictions of minors engaged in sexual conduct . . . . The [Respondent] admits that he is, in fact, guilty of this offense. On March 12, 1998, Respondent appeared before the Honorable James C. Paine, United States District Court Judge for the Southern District of Florida. Respondent was questioned extensively concerning the Plea Agreement and Respondent's understanding of the charges to which he had admitted. During this proceeding, the essential facts relating to Counts 1 and 3 were summarized and Respondent was asked whether he agreed with those facts. Respondent agreed with all the summarized facts; except the allegation that he thought that Luke 14 was a minor. 2/ Among the summarized facts which Respondent admitted to are the following: That Respondent knowingly received a visual depiction; the visual depiction was shipped or transported by interstate commerce by any means, including computer; that the visual depiction was of a minor engaged in sexually explicit conduct; and that Respondent knew that the visual depiction was of a minor engaged in sexually explicit conduct; That Respondent sent several sexually explicit pictures to Luke 14. The pictures were of the Respondent, naked; and That Respondent had photographs of two nude minors in his residence. Respondent entered a plea of guilty to Counts 1 and 3 of the Indictment, was adjudicated guilty of the two counts, and was sentenced to 70 months in prison on each Count to run concurrently. The other seven counts were dismissed. The evidence failed to prove that Respondent's plea of guilty was made as the result of any threat, coercion, or fraud. By entering a plea of guilty to Count 1 of the Indictment, Respondent admitted to the following: On or about February 5, 1997, in St. Lucie County, in the Southern District of Florida, the defendant, STEPHEN H. ROSENTHAL, did knowingly receive a visual depiction that had been transported and shipped in interstate commerce by computer . . . depicting a minor engaging in sexually explicit conduct . . . to wit: a depiction of a minor male engaging anal-genital sexual intercourse with an adult male, the production of which involved the use of a minor engaging in sexually explicit conduct. By entering a plea of guilty to Count 3 of the Indictment, Respondent admitted to the following: On or about April 15, 1997, in St. Lucie County, in the Southern District of Florida, the defendant, STEPHEN H. ROSENTHAL, did knowingly receive a visual depiction that had been transported and shipped in interstate commerce by computer . . . depicting minors engaging in sexually explicit conduct . . . to wit: a depiction of two minor males engaging oral-genital sexual intercourse, the production of which involved the use of a minor engaging in sexually explicit conduct. By pleading guilty to Counts 1 and 3 of the Indictment and admitting to Judge Paine that he had committed those offenses, Respondent admitted that he had been in possession of child pornography and that he had downloaded the child pornography from the Internet. Respondent subsequently attempted to withdraw his plea. This effort was rejected. Respondent is currently incarcerated at FCC Coleman serving his 70-month sentence. The arrest and subsequent conviction of Respondent resulted in adverse and widespread publicity in St. Lucie County. Respondent's arrest and conviction and the resulting adverse publicity were sufficiently notorious to disgrace the teaching profession and seriously reduce Respondent's effectiveness as a teacher. Respondent's employment with the St. Lucie County School Board was terminated due to the foregoing incidents. Petitioner issued an Administrative Complaint on or about December 22, 1999, in which Petitioner recommended that the Education Practices Commission impose appropriate disciplinary sanctions on Respondent's educator's certificate pursuant to Sections 231.262 and 231.28, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code, due to the following alleged facts: 3. During the 1996-1997 and 1997-1998 school year, Respondent was in possession of child pornography and down loaded the child pornography from the Internet onto his home computer. On or about November 3, 1997, Respondent was arrested and charged with 8 counts of Knowingly Receiving a Visual Depiction of Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer, and one count of Having Possession of Three or More Visual Depictions of a Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer. On or about June 2, 1998, Respondent pled Guilty to two of the counts of receiving the photographs. The court dismissed all other charges and adjudicated Respondent Guilty on the remaining two. Respondent was sentenced to 70 months on each count to run concurrently, to receive health/psychiatric counseling during incarceration, 3 years of supervised release, not possess a firearm and pay $3200 in fines and fees. On or about November 25, 1997, Respondent was terminated from his position with the St. Lucie County School Board. Respondent filed an unexecuted Election of Rights form and a letter in response to the Administrative Complaint. Although Respondent did not specifically request an administrative hearing, he did dispute the material facts of the Administrative Complaint. The Administrative Complaint and Respondent's letter were filed with the Division of Administrative Hearings on September 19, 2000, with a request that the matter be assigned to an administrative law judge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, Stephen H. Rosenthal, violated Sections 231.28(1)(c) and (f), Florida Statutes. It is further RECOMMENDED that the final order dismiss the charge that Respondent violated Section 231.28(1)(i), Florida Statutes. It is further RECOMMENDED that Respondent's Florida Educator's Certificate, Number 644646, be permanently revoked. DONE AND ENTERED this 10th day of January, 2001, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 10th day of January, 2001.
The Issue The issue in this case is whether Petitioner, John Harris, should be granted an exemption from disqualification from employment pursuant to Chapter 435, Florida Statutes.
Findings Of Fact Petitioner, John Harris, was employed at the Florida State Hospital in Chattahoochee, Florida, from October 1977 to January 15, 1998. The Florida State Hospital is a residential facility for mentally ill adults. Mr. Harris was employed as a Unit Treatment and Rehabilitation Specialist. Mr. Harris was involved in the provision of direct care to residents of Florida State Hospital. During 1997 the Department of Children and Family Services (hereinafter referred to as the "Department") pursuant to Chapter 435, Florida Statutes, conducted background screening of employees involved in the provision of direct care to residents of Florida State Hospital. As a result of a background screening check of Mr. Harris, it was determined that Mr. Harris had pled nolo contendere to possession of cocaine, a felony pursuant to Chapter 893, Florida Statutes, in 1989. As a result of the determination that Mr. Harris had pled nolo contendere to a felony under Chapter 893, Florida Statutes, Mr. Harris was notified by the Department that he was disqualified from employment in his position with Florida State Hospital. The following are the pertinent facts concerning the 1989 nolo contendere plea: During the afternoon of September 11, 1989, Mr. Harris was traveling by automobile from Tallahassee, Florida, where he had picked up the automobile from his wife, to Quincy, Florida, where he lived; Mr. Harris was traveling at a speed of 100mph while being chased by law enforcement. He was stopped by other law enforcement personnel waiting for him just outside Quincy; The automobile that Mr. Harris was driving was searched and cocaine was discovered; Mr. Harris was charged with possession of a controlled substance in violation of Chapter 893, Florida Statutes, and reckless driving in violation of Chapter 316, Florida Statutes; Mr. Harris pled nolo contendere to the charge of possession of cocaine, a felony, and was adjudicated guilty of the offense on or about February 21, 1990; and Mr. Harris was sentenced to probation for a period of one year. Although not listed in the letter informing Mr. Harris of the results of his background screening, Mr. Harris also was charged and pled nolo contendere to the offense of possession of cocaine with intent to sell in 1981 and driving under the influence of alcohol and possession of cannabis in 1995. The following are the only pertinent facts concerning the 1981 offense offered at hearing: On or about May 24, 1982, Mr. Harris pled nolo contendere to possession with intent to sell cocaine in violation of Chapter 893, Florida Statutes, a second degree felony, as a result of an incident that took place in 1981; and Mr. Harris was adjudicated guilty and was sentenced to probation for a period of eight years. The following are the pertinent facts concerning the 1995 offenses for driving under the influence of alcohol and possession of cannabis: Mr. Harris was driving an automobile in or near Bainbridge, Georgia, when he was stopped by law enforcement; Mr. Harris was charged with driving under the influence of alcohol and possession of cannabis that was found in the glove compartment of the automobile; Mr. Harris was adjudicated guilty of both offenses; and Mr. Harris was sentenced to probation for a period of one year and a number of week-ends in jail. At the time of the formal hearing Mr. Harris was 44 years of age. Mr. Harris' immediate supervisor, Rollean Lloyd (Ms. Lloyd indicated at the hearing that her first name is spelled "Rollean") testified at the formal hearing in support of Mr. Harris' continued employment at Florida State Hospital. Ms. Lloyd also signed a letter (Ms. Lloyd's first name is spelled "Rollene" on the letter) supporting his continued employment at Florida State Hospital. Ms. Lloyd's supervisor also testified at the formal hearing and signed a letter supporting his continued employment at Florida State Hospital: I have known John Harris for approximately eight years as an employee of Unit 4, Florida State Hospital. I have observed Mr. Harris over this time and he had become a concientious [sic] worker who relates well to the residents and to the staff in Unit 4. His recent attendance record has been good and Mr. Harris performs his job to the best of his ability. Mr. Harris is cooperative with his supervisors and supportive of his co-workers. For the past eleven years Mr. Harris has been, and was at the time of the formal hearing, married to Ollie Harris. Mr. Harris has two sons, one twenty years of age and the other eighteen years of age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Children and Family Services denying John Harris' request for an exemption from disqualification from employment pursuant to Section 435, Florida Statutes. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998. COPIES FURNISHED: Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 John Perry, Esquire District 2 Legal Office Department of Children and Family Services 2639 North Monroe Street Tallahassee, Florida 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
