The Issue Whether Respondent violated Sections 458.331(1)(g), (j), (m), (q), and (t), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (AHCA), is the state agency charged with regulating the practice of medicine pursuant to Section 20.20 and Chapters 455 and 458, Florida Statutes. Respondent, Ronald L. Cohen, M.D. (Dr. Cohen), is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0024014. Dr. Cohen's last known address is 7800 West Oakland Park Boulevard, Suite 216, Fort Lauderdale, Florida. Dr. Cohen's area of practice is urology, and he is board certified. He has been practicing in Fort Lauderdale since 1976. During his years of practice, he has enjoyed an excellent professional reputation. Between on or about July 2, 1990, through on or about May 16, 1992, Dr. Cohen treated Patient R.G. for various complaints. On or about July 2, 1990, Patient R.G., a thirty-four year-old female with a history of chemical dependency from the age of twelve for which she first underwent treatment in or about 1986, presented to Dr. Cohen with voiding complaints including post void dysuria, frequency, urgency, and urgency incontinence. However, such information about chemical dependency was unknown to Dr. Cohen until a subsequent time. Patient R.G. did not reveal to Dr. Cohen either her history of chemical dependency or treatment of that dependency. Dr. Cohen performed a physical examination of Patient R.G. wherein Dr. Cohen dilated Patient R.G.'s uretha. Dr. Cohen noted that Patient R.G.'s urinalysis was entirely within normal limits. Dr. Cohen then diagnosed Patient R.G. with urethritis, urthrel stenosis, and trigonitis. Dr. Cohen prescribed Patient R.G. a three-day supply of Noroxin and pyridium to improve Patient R.G.'s symptoms. Noroxin is an antibacterial agent indicated for the treatment of adults with complicated urinary tract infections. Pyridium is an analgesic agent indicated for the symptomatic relief of pain, burning, urgency frequency and other discomfort arising from irritation of the lower urinary tract mucosa. Patient R.G.'s symptoms persisted. On or about July 13, 1990, Patient R.G. underwent a cystoscopy, urethal dilation, and hydraulic bladder distention by Dr. Cohen at Outpatient Surgical Services in order to rule out interstitial cystitis. Dr. Cohen's postoperative impressions were as follows: Interstitial cystitis (inflammatory lesion of the bladder) and urethral stenosis. On or about July 17, 1990, Patient R.G. presented to Dr. Cohen's office in severe pain secondary to the cystoscopy and bladder distention. At that time, Patient R.G. complained of feeling bloated suprapubically. Dr. Cohen instilled dimethyl sulfoxide to relieve Patient R.G.'s pain. Patient R.G.'s symptoms were subsequently temporarily resolved. On or about January 19, 1991, Patient R.G. next presented to Dr. Cohen with complaints of a recurrent episode of urinary frequency and burning on the previous day. Shortly thereafter, in early 1991, Dr. Cohen asked Patient R.G. to go to lunch. Dr. Cohen and Patient R.G. subsequently began a social relationship which included sexual intercourse. At the time that Dr. Cohen initiated the relationship with Patient R.G. he was aware of the prohibitions against such conduct, knew he had choices available to him, but declined to exercise professional self-discipline. Dr. Cohen did exercise influence as Patient R.G.'s physician for the purpose of engaging in sexual relations. Dr. Cohen has never had a sexual relationship with any other patient. On or about April 8, 1991, Dr. Cohen wrote a prescription for thirty units of Valium 10 mg. for Patient R.G. who had at that time complained to Dr. Cohen of anxiety due to marital difficulties. Valium is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains diazepam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Valium is indicated for the management of anxiety disorders or for the short-term relief of symptoms of anxiety. Dr. Cohen's medical records of Patient R.G.'s urologic condition do not include any reference to the Valium prescription and therefore the records fail to justify his prescription of Valium, a controlled substance indicated for the treatment of anxiety, to Patient R.G. On May 16, 1992, Dr. Cohen wrote a prescription for thirty units of Prozac 20 mg. Prozac is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains Fluoxetine Hydrochloride which is not a controlled substance. Prozac is indicated for the treatment of depression. Dr. Cohen's medical records of Patient R.G.'s urologic condition do not include any reference to the Prozac prescription and therefore the records fail to justify his prescription of Prozac. Dr. Cohen inappropriately prescribed Prozac, a legend drug indicated for the treatment of depression. Prozac, however, was not indicated in the treatment of Patient R.G.'s urologic condition, interstitial cystitis. Dr. Cohen admitted to having prescribed Prozac to Patient R.G. as a favor so that Patient R.G. did not have to see her psychologist for said prescription. Dr. Cohen admitted to having a sexual relationship with Patient R.G. Dr. Cohen, by virtue of his sexual relationship with Patient R.G. and his inappropriate prescribing of Prozac for Patient R. G., failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances. Dr. Cohen underwent an evaluation by Thomas J. Goldschmidt, M.D., a specialist in neurology and psychiatry, in conjunction with Richard Westberry, Ph.D., a licensed psychologist. Dr. Goldschmidt issued a report on their evaluation in which he stated: We see no evidence of any exploitative tendency regarding Dr. [Cohen] in his relationship with this patient. There is no evidence of any sexual addiction component. And we do not feel that his is behavior that is likely to reoccur or compromise his ability to practice urology. We see this as an isolated incident that Dr. [Cohen] approached in a very naive fashion and was primarily orchestrated by the dynamics of a sexually provocative, aggressive female who proposed a sexual act that was nonthreating (sic) to the patient while simultaneously providing ego gratification for longstanding, underlying emotional conflicts dealing with castration fears and anxiety. Dr. Cohen voluntarily entered into a contract with the Physician's Recovery Network to assist him in dealing with his despondency and depression. Dr. Cohen continues to see Dr. Westberry on a weekly basis for his despondency. Dr. Cohen has never had any disciplinary action taken against his license nor has he been dismissed from any position at a hospital at which he had staff privileges. Dr. Cohen has staff privileges at four hospitals. Dr. Cohen was Vice Chief of Staff at one of the hospitals until he voluntarily resigned that position when this case surfaced in order to avoid embarrassment to the hospital.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dr. Cohen violated Sections 458.331(1)(g), (j), (m), (q) and (t) as set forth in Counts 1-5 in the Administrative Complaint, and imposing a $5,000 fine for the violations of Sections 458.331(1)(g) and (j), Florida Statutes and a $5,000 fine for violations of Sections 458.331(1)(m), (q), and (t), Florida Statues, for a total of $10,000, and placing Dr. Cohen on probation for two years under terms and conditions to be set by the Board of Medicine. DONE AND ENTERED this 15th day of March, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 15th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3274 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-9: Accepted. Paragraphs 10-11: Accepted in substance. Paragraphs 12-14: Accepted. Paragraph 15: Rejected as irrelevant because the administrative complaint did not state such a violationas it related to the valium but only as to the Prozac. The violation relating to valium was the record keeping. Paragraphs 16-19: Accepted. Paragraph 20: Accepted except as to the valium. The administrative compliant did not allege such a violationas it related to valium. Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted. Paragraph 3: Accepted in substance. Paragraph 4: Accepted as to his professional reputation. The remainder is rejected as unnecessary. Paragraph 5: Rejected as subordinate to the facts found. Paragraph 6: The first sentence is accepted. The remainder is unnecessary. Paragraphs 7-13: Accepted. Paragraph 14: Rejected as subordinate to the facts found. Paragraph 15: Rejected as not supported by the greater weight of the evidence. Dr. Cohen is the party whoinitiated the social relationship with R.G. when heasked her out to lunch. He was physically attracted tothe patient and that is why he asked her out. Paragraph 16: Accepted. Paragraph 17: The first sentence is accepted. The last sentence is rejected as subordinate to the facts found because Dr. Cohen did prescribe medication forR.G. which had nothing to do with the complaints forwhich she was seeing Dr. Cohen. Paragraph 18: Rejected as subordinate to the facts found. See paragraph 17. Paragraphs 19-22: Rejected as subordinate to the facts found. Paragraph 23: The first and second sentences are rejected as subordinate to the facts found. The thirdsentence is accepted to the extent that he has enteredcounseling. Paragraphs 24: Accepted to the extent that he is in counseling and that such a relationship will not likelyoccur again. Paragraph 25: Accepted in substance. Paragraph 26: The first two sentences are accepted in substance. The remainder is rejected as unnecessary. Paragraph 27: Accepted in substance that such a relationship is unlikely to happen in the future. Rejected to the extent that it implies that R.G. gavefree, full informed consent to the sexual activity. Paragraphs 28-29: Accepted in substance. Paragraph 30: Rejected as subordinate to the facts found. Paragraphs 31-34: Accepted in substance. Paragraph 35: Rejected as unnecessary. Paragraphs 36-39: Accepted in substance. COPIES FURNISHED: Donald G. Korman, Esquire Korman, Schorr and Wagenheim The Dart Building 2101 North Andrews Avenue, Suite 400 Ft. Lauderdale, Florida 33311 Paul Watson Lambert, Esquire 2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749 Albert Peacock, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-6506 Dr. Marm Harris Executive Director Agency For Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact On or about May 6, 1993, the Department of Professional Regulation, Board of Medicine (predecessor agency to the Agency for Health Care Administration, Board of Medicine) received a complaint from patient A. L. alleging that the Petitioner had attempted inappropriate sexual contact with the patient during an examination. The complaint was assigned to a DPR investigator who notified the Petitioner that the complaint had been received. The DPR investigator interviewed the patient, obtained the patient's medical records from the Petitioner, and obtained a letter apparently written on the day of the incident from the patient confirming the nature of the complaint. The investigator also obtained information regarding the Petitioner's licensure and confirmation from the patient that he would appear to testify at a hearing if an Administrative Complaint was filed. During the interview and by letter, the patient alleged that during the dermatological examination, the Petitioner had asked the patient if he was single and did he "play" with himself. The patient further alleged that the Petitioner requested that the patient masturbate while the Petitioner watched. The DPR investigator compiled a report including the complete investigative file, relevant discovery, the agency's recommendation and memoranda, and the proposed administrative complaint. The report also advised that, allegedly according to agency legal counsel, other administrative complaints were pending against the Petitioner. The report was forwarded to the members of the Probable Cause Panel (PCP) prior to their meeting on September 14, 1993. The PCP received and reviewed the materials. Present at the September 14 meeting were panel members Edward A. Dauer, M.D., Robert Katims, M.D., and Maribel C. Diblan. Also present were legal counsel and administrative personnel. Upon review of the materials, the PCP unanimously determined that probable cause existed for the filing of the Administrative Complaint. Probable cause was found that the Petitioner violated Section 458.331(1)(j) and (x), Florida Statutes. On September 17, 1993, the agency filed the Administrative Complaint, AHCA Case No. 93-8352, subsequently DOAH Case No. 93-6252. On April 19, 1994, the case was heard in formal hearing before William F. Quattlebaum, Hearing Officer, Division of Administrative Hearings. A Recommended Order was issued, finding that the testimony of the patient lacked credibility and recommending that the Administrative Complaint be dismissed. On August 15, 1994, the agency issued a Final Order adopting the recommended order issued by the hearing officer and dismissing the Administrative Complaint. The Petitioner asserts that the agency investigation was flawed because no dermatological expert was sought to review the case. There is no credible evidence that an expert is required to review allegations of sexual misconduct such as those charged in the administrative complaint filed against Dr. Lattanand. The Petitioner further asserts that alleged inconsistencies in addresses provided by the patient to various entities warranted further review by the agency and apparently suggest a lack of credibility on the complainant's part. Review of the alleged address inconsistencies indicates only that the complainant maintained more than one address. The implication related to credibility is not supported by evidence. Based on the prehearing stipulation of the parties, the following Findings of Fact are made: The Petitioner qualifies as a small business party as defined by section 57.111, Florida Statutes. The Petitioner is the prevailing party. The amount of fees claimed by the Petitioner are reasonable. Special circumstances do not exist which would make an award of costs and fees unjust.
The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Melvin Robinson, through sex offender programs administered by the Respondent. See Section 801.111, Florida Statutes (1975).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Petition was received by the Division of Administrative Hearings on November 4, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department had requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The final hearing in this cause was conducted on January 5 1982, following a continuance of the previously scheduled hearing of December 16, 1981, which was designed to allow the Petitioner to gain the assistance of counsel. The Petitioner was unable to make those arrangements and the hearing was held with the Petitioner appearing pro se. In the course of the final hearing, the Petitioner testified and offered as witnesses, Alice Butler, Section Aide in the mentally disordered sex offender program, Florida State Hospital; Sterling George, Psychiatric Aide in the mentally disordered sex offender program at Florida State Hospital; and Alfred Gerardo, a participant in the sex offender program at Florida State Hospital. The Respondent offered as witnesses, Robert Alcorn, Clinical Director for the mentally disordered sex offender program at Florida State Hospital; Charles Shaffer, Clinical psychologist in the aforementioned program; Allison Dowling, Clinical social Worker in that program; and Lois Stevens, Clinal social Worker at Florida State Hospital. The Respondent presented two exhibits which were admitted into evidence. At all times pertinent to this proceeding Petitioner has been in the custody of Respondent, in keeping with orders of court. During that time, the Petitioner has resided at the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in the program for the benefit of sex offenders, to include those persons committed under Chapter 801, Florida Statutes (1975), entitled "Child Molester Act." Although the Petitioner has been subjected to a full range of treatment opportunities his progress in the recognition of and the ability to deal with the underlying conditions which caused his placement in the program are at end. In the face of these circumstances, the Respondent has made a preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. These opinions were made known to the Petitioner and when confronted with this information, the Petitioner requested the formal hearing which is the subject of this Recommended Order. Robinson was admitted to the forensic service at Florida State Hospital on October 9, 1990, to begin his participation in the mentally disordered sex offender program. He had previously been enrolled in the program from March, 1979, through February, 1979, a commitment under the terms of Chapter 801, Florida Statutes. Following his initial release from the program, Robinson was accused of violating the terms and conditions of probation and was adjudicated guilty of the offense for which probation was granted. Imposition of a sentence in that case was withheld and the Petitioner was returned to the custody of the Department of Health and Rehabilitative Services, in keeping with the rationale expressed in his original commitment to the program at Chattahoochee, which original commitment had occurred by Order of Court on February 20, 1976. In the matter of the most recent offense which had caused the revocation of Robinson's probation, Robinson received a sentence of ten years in the Florida State Prison; however, service of that sentence was stayed pending release and discharge from the custody of the Respondent on this most immediate commitment for care and treatment in the mentally disordered sex offender program. Beginning with the October 9, 1980, hospital stay, the goals of the program have been to deal with the patient's problems concerning sexual deviation, pedophilia; alcoholism; inadequate and passive aggressive personality styles and cultural deprivation. Notwithstanding the efforts of the patient and those of the staff to deal with the underlying disorders, this success has not been complete. The treatment has been exhausted in this program and other similar programs in the system in the State of Florida, and the Petitioner still presents a danger based upon his sexual deviation and propensity to commit sexual acts involving children, in particular minor females. These determinations are reached in the face of the facts that follow. The program at Florida State Hospital has as its main focus the utilization of group therapy with adjunctive programs in recreational and occupational therapy, and this treatment regime relies heavily on a patient's self-motivation. The Respondent's Exhibit 2 is a series of clinical summaries related to the patient's performance during the course of his treatment. The most recent evaluation points out, in general terms, the Petitioner's pattern of acting-out behavior and disregard for ward policy and, more importantly his lack of motivation and progress in the therapies which are essential to success in the program. In addition, testimony was given in the course of the hearing on the part of the Petitioner's therapist and other persons affiliated with the treatment team. Lois Stevens had been the Petitioner's primary therapist from October, 1980, to January, 1981. She observed in the Petitioner indications of low self- esteem; the fact that the Petitioner was easily disappointed; that he was easily influenced by others; that he had an inability to deal with abstract feedback and a problem of allowing himself to be abused. These were matters of concern which needed to be addressed as a prerequisite to dealing with the Petitioner's sexual deviation. In effect, this was a process of identifying the problems which underlie his sexual deviation. In this connection, Stevens found that the Petitioner had the desire to do better but evidenced poor judgment and impulse control. These circumstances were aggravated by the fact that the Petitioner had and has limited intellectual ability. During this phase no intense effort was made to discuss the sex offense, molestation of a young girl. While in this treatment situation, Robinson accepted staff criticism in an appropriate way and he did improve in personal hygiene, which had been a problem initially. After a period of time it was determined that the Petitioner should be placed with a separate therapist to go forward with his treatment. From January, 1981, to July, 1981, the Petitioner had Allison Dowling as his primary therapist. In the beginning Robinson performed reasonably well and had been given some freedom of movement within the facility and was granted a position as a patient volunteer on the ward. He was beginning to cope better in the institutional environment; however, he remained reluctant to examine, in therapy sessions, the problem of his sexual deviation. Specifically, that difficulty related to his ability to deal with insight oriented therapy. He would enter into a discussion of the offense in the therapy sessions, but tended to minimize the seriousness of his offense, demonstrating marginal understanding of the etiology and maintaining factors in his deviant sexual behavior. Moreover, between sessions with the group he tended to forget what had been dealt with on the prior occasion. He had to be prompted to participate, with one exception. As established by Dowling in this sequence of the treatment, the Petitioner began to act in an inappropriate way while on the ward and was tardy for group therapy sessions. In the connection with his misbehavior on the ward, it was necessary to force the Petitioner to engage in a discussion of those matters and the act of taking away his privileges of freedom of movement and position did not promote a change in the Petitioner. He attempted to manipulate staff members about the misbehavior and to have group members in the therapy sessions accept his side of the dispute as opposed to directly addressing problems. The items of misbehavior included homosexual activity with another participant of the program and sleeping in the nude, which were contrary to hospital policy. On another occasion the Petitioner attempted to get a staff aide to take him to an unauthorized activity, in violation of ward policy. Dowling has observed little progress in the Petitioner's attempts to control his sexual misbehavior and she correctly indicates that his sexual deviance still exists and no further progress can be made in dealing with this condition. Charles Shaffer, a clinical psychologist was the primary therapist for the Petitioner from November, 1981, to January, 1982. His observations concerning the progress of the Petitioner are in accord with those of Allison Dowling. He did note that the Petitioner has shown himself to be willing to help others with their daily problems but is unwilling to participate himself, and by way of explanation Robinson states that the other patients don't understand or can't understand his problem related to the sexual deviance. Shaffer's observations establish that the Petitioner is comfortable with his life style, and hasn't indicated any desire to change that pattern. Robert Alcorn, the director of the mentally disordered sex offender program at Florida State Hospital, through his testimony indicated agreement to the effect that the treatment had been exhausted in that program without success, which is an accurate depiction. Alcorn also established that conferences related to Robinson's potential placement in affiliated sex offender programs led to the conclusion that those programs could not assist the Petitioner, ergo, treatment has been exhausted in those other facilities. The Petitioner, through his testimony, acknowledged that he had participated in homosexual activities at the hospital and had been punished by the suspension of his grounds privileges and job opportunity. Following those episodes the Petitioner indicated that he lost interest in participating in the program but did in fact participate. He acknowledged that he attended occupational therapy, as well as the primary therapy, and was tardy at times. Robinson admits that he has difficulty explaining himself and has problems with impulse control. He says he can't find himself, is tired of being a nothing. Robinson believes he does not always think before acting. Finally, he has a fear of returning to court and facing the disposition of his case. Alice Butler, a witness for the Petitioner who was a co-therapist at the time that Stevens was assigned to Robinson's case, established that earlier in the treatment Petitioner was more motivated in his participation than he has been recently. And, in fact, the Petitioner has broken the rules as recently as two weeks prior to the hearing by sleeping nude. She also observed that the Petitioner has been in the so-called "observation section" for a long time and is satisfied with his placement. (This particular section is a more restricted area than some of the other advanced wards.) Sterling George, a psychiatric aide and witness for the Petitioner from his observation finds that as a general proposition the Petitioner takes part in activities with other patients and is not a problem on the ward. Finally, Alfred Gerardo, another participant in the mentally disordered sex offender program, gave testimony. He has known the Petitioner for approximately fifteen months. He has also participated in the same group with Robinson from October, 1980, through May, 1981. His initial impressions of Robinson were not favorable, but in the last few months he has gained a better appreciation of the Petitioner. In particular, he has observed Robinson to have made improvement in terms of his willingness to he concerned about matters of education and acting-out, and in the realm of the Petitioner's appearance. From this witness's understanding the Petitioner's participation in group activity is limited and particularly so in the area of the underlying sexual problem. In summary the Respondent has exhausted all appropriate treatment for the Petitioner's sexual deviance, but that treatment has not been totally successful and the patient continues to be a sexual menace, and there is a likelihood that the Petitioner would commit other sexual crimes.
Findings Of Fact Having listened to the testimony and considered the evidence presented in this cause, it is found as follows: Dr. Richard M. Dunham is licensed to practice psychology in the State of Florida by the State Board of Examiners of Psychology. Dr. Dunham is primarily employed as a tenured professor on the faculty of Florida State University. Dr. Dunham is not trying to build a private practice, and over a two or three month period may see three to four people professionally. In connection with this limited private practice he maintains an office in his home in Wakulla County and did so at all times pertinent to this cause. It was Dr. Dunham's usual practice to see patients for counseling in his home, rather than in his office on the University campus or some other place. In 1973, Dr. Dunham was acquainted, through his service in the United States Naval Reserve, with Dan Holsenbeck, then the husband of Judy Holsenbeck. He was likewise acquainted with Judy Holsenbeck. Dr. Glenn King, a clinical psychologist with the Auburn University Clinic, counseled Mrs. Holsenbeck on October 23, 1973, in Auburn, Alabama. Over the next five or six weeks, he saw her a total of five times for counseling, the last session being November 5, 1973. She related to Dr. King that she was concerned because she was sexually attracted to other men and she was unable, to achieve orgasm during intercourse with her husband. Further, she was depressed because she felt she could not be faithful to her husband. Dr. King counseled her and found her to have a passive aggressive personality disorder with depressive features. In early December, 1973, Mrs. Holsenbeck moved to Tallahassee, Florida. Through her husband's contact with Dr. Dunham, she met with him in his office on the FSU campus sometime around December 20, 1973, to discuss her psychological problems and to seek counseling. Dr. Dunham suggested several other psychologists whom she could consult, and, in the alternative, offered to take Mrs. Holsenbeck as a patient himself. Mrs. Holsenbeck requested Dr. Dunham to take her as patient, to which request he acceded. The psychological problems Mrs. Holsenbeck related to Dr. Dunham for which she sought counseling, involved her sexual activity and were similar in nature to those related to Dr. King at Auburn. After the initial meeting on or about December 20, 1973, Dr. Dunham saw Mrs. Holsenbeck as a patient on five separate occasions. These were as follows: December 27, 1973; January 1, 1974; January 17, 1974; February 6, 1974; and February 28, 1974, which meeting Mrs. Holsenbeck recalls occurring on March 6, 1974. Each of these meetings was a counseling session and took place at the home of Dr. Dunham in Wakulla County. It was alleged that in the course of the counseling sessions on January 17, 1974, and February 6, 1974, Dr. Dunham engaged in sexual intercourse and other sexual activities with Mrs. Holsenbeck. It was further alleged, that at the last counseling session, which occurred on February 28, 1974, Dr. Dunham made sexual advances toward Mrs. Holsenbeck, which were rebuffed. No one other than Dr. Dunham and Mrs. Holsenbeck were present in the home of Dr. Dunham at the time of the counseling sessions on January 17, 1974, and February 6, 1974. Similarly, no one other than Dr. Dunham and Mrs. Holsenbeck were present at the inception of the last counseling session. However, Mrs. Dunham, Dr. Dunham's wife of 7 or 8 years, came home during that counselling session. Mrs. Dunham was aware of Mrs. Holsenbeck's presence in the house and was not aware of any sexual activity or problem between Dr. Dunham and Mrs. Holsenbeck at that time. The counseling sessions on January 17, 1974, and February 6, 1974, took place at approximately 9:00 a.m. and lasted from one hour to one and one-half hours. The last counseling session occurred in the early evening. In December of 1973, and continuing through the date of the last counseling session, Mrs. Holsenbeck worked in a race relations program headed by Dr. Dunham at F.S.U. Mrs. Holsenbeck was very dissatisfied and eventually withdrew from it in the spring of 1974. On April 18, 1974, Dr. King contacted Mrs. Holsenbeck, at the request of her husband, whereupon Mrs. Holsenbeck alleged that Dr. Dunham had made certain sexual advances toward her during the course of his treatment of her. After a further meeting with Mrs. Holsenbeck, Dr. King told her that Dr. Dunham's alleged conduct was a serious breach of ethics and asked her if she would lodge a complaint against Dr. Dunham. Thereafter, Dr. King put Mrs. Holsenbeck in touch with Dr. Wallace Kennedy, also of the FSU faculty, and under whom Dr. King had studied. Dr. King had Mrs. Holsenbeck contact Dr. Kennedy so that her allegations might be conducted to the Florida State Board of Examiners of Psychology for action by them. There was evidence presented of a serious professional and, perhaps, personal disagreement between Dr. Dunham and Dr. Kennedy, who are both in the same psychology department at FSU. This disagreement arose long before December, 1973. Both the Petitioner, Florida State Board of Examiners of Psychology and the Respondent, Dr. Richard Dunham, agree that acts of the nature alleged constitute a serious ethical breach warranting suspension or revocation of a license to practice psychology. It was not proved by clear and convincing evidence that Dr. Richard Dunham made sexual advances toward, nor engaged in sexual activities with Mrs. Holsenbeck at any time. It is a very unwise practice on the part of Dr. Dunham to counsel patients in the privacy of his own home with no one else present, particularly when such a patient is a female manifesting sexual problems. Had Dr. Dunham been more circumspect concerning this practice, there would probably have been no opportunity for charges such as those presented herein.
Recommendation There having been no finding of fact that the Respondent, Dr. Richard Dunham, engaged in the alleged activities of misconduct, it is hereby recommended that the Florida State Board or Examiners of Psychology take no action against the Respondent and dismiss the charges herein. DONE and ORDERED this 26th day of September, 1975, in Tallahassee, Florida. CHRIS H. BENTLEY, 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 September, 1975. COPIES FURNISHED: Ronald C. LaFace, Esquire W. Dexter Douglass, Esquire P. O. Box 1752 Douglass & Powell Tallahassee, Florida 32302 Post Office Box 1674 Attorney for Petitioner Tallahassee, Florida 32302 Attorney for Respondent
Findings Of Fact At all times pertinent to this proceeding, Respondent held Class "D" Security Officer License Number D00-26960 and Class "DI" Security Officer Instructor License Number DI89-00304. Both licenses were duly issued by Petitioner pursuant to the provisions of Chapter 493, Florida Statutes. Respondent has held his Class "D" license since 1976 and has held his Class "DI" license since 1989. Respondent has no previous record of a felony or misdemeanor offense and was, at the time of the formal hearing, working at an adult community condominium complex as a security guard. Officer Charles Wharton is a detective with the Fort Pierce Police Department who was, at the times pertinent to this proceeding, assigned to the juvenile division. T.G. is a female who was eleven years of age as of July 1993. F.S. 1/ is a female who was fourteen years of age as of July 1993. Both F.S. and T.G. were described by Officer Wharton as appearing their stated ages. Both of these girls were from what Officer Wharton referred to as "Fort Pierce's ghetto" and both were described by Officer Wharton as being "street wise". On or about July 1, 1993, Respondent paid T.G. and F.S. to have sexual relations with him at his house in Fort Pierce. The sex with F.S. included the penetration of her vagina with his penis. The sex with T.G. included her having oral contact with his penis. Officer Wharton questioned Respondent and read to him his Miranda rights. Respondent waived his Miranda rights and admitted to Officer Wharton that he had paid these two girls to have sex with him as described above. Officer Wharton referred this matter to the State Attorney's Office, which subsequently dismissed all charges against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and the conclusions of law contained herein, imposes an administrative fine in the amount of $1,000, suspends Respondent's licensure for a period of three months, and thereafter places Respondent's licensure on probation for a period of one year. DONE AND ENTERED this 10th day of November, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1994.
The Issue The issue 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.
Findings Of Fact On and after May 29, 1978, respondent Patricia Bose Haischer has been licensed by petitioner as a licensed practical nurse. She holds license No. 0482051. On May 1, 1981, an information was filed in the Circuit Court for the Sixth Judicial Circuit in Case No. CRC 8103052 CFANO (Pinellas County) charging respondent with "knowingly. . .commit[ting] a lewd and lascivious act in the presence of Yvonne Moir, a child under the age of fourteen years, by willfully and knowingly engaging in sexual activity in the presence of. . .Yvonne Moir. . .but without intent to commit sexual battery upon. . .Yvonne Moir." Petitioner's Exhibit No. 2. On her plea of guilty, respondent was adjudicated guilty of violating Section 800.04, Florida Statutes (1981), on August 19, 1981; and, on the same date, respondent was sentenced to twelve years' imprisonment. At the time of the hearing, respondent was confined at the Florida State Prison for Women. According to respondent's uncontroverted testimony, elicited in petitioner's case, she never fondled Yvonne Moir but was present and undressed while her husband had sexual intercourse with the child; she acted under the domination of her husband (who is now himself incarcerated for sex offenses) and was not altogether well emotionally at the time. Yvonne Moir was not in respondent's care as a nurse when these events transpired. Respondent's misbehavior evinced a disregard for Yvonne Moir's emotional health and reflects adversely on respondent's ability to practice nursing, for that reason. This opinion was expressed by a nurse with eighteen years' experience who testified for petitioner without objection from respondent. As a nurse, respondent has never harmed a patient or put a patient in jeopardy. She has had good recommendations from anybody who has ever supervised her, and one supervisor called her "trustworthy and dependable." During her imprisonment, respondent has visited a psychologist on a regular basis. She feels better and more confident about herself than she did at the time of the offense.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent suspend petitioner's license for two (2) years. DONE AND ENTERED this 20th day of April, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of April, 1982. COPIES FURNISHED: Patricia B. Haischer Box 202 F.C.I. Lowell, Florida 32663 William R. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING IN RE: PATRICIA MARIE B. HAISCHER, L.P.N. CASE NO. 0017303 License No. 0482051 DOAH NO. 81-3149 /
