The Issue The issue is whether Petitioner is qualified to take the examination for licensure as a mental health counselor.
Findings Of Fact Petitioner executed an application for licensure as a mental health counselor on June 13, 1989. He filed the application with the Board of Clinical Social Workers, Marriage & Family Therapists, and Mental Health Counselors on July 6, 1989. The application was accompanied by the appropriate fee and disclosed that Petitioner satisfied all of the educational requirements for taking the examination. However, Respondent determined that the application was incomplete because Petitioner failed to show that he had had the requisite clinical experience under the supervision of a qualified person. By letter dated July 17, 1989, Respondent informed Petitioner that his application was incomplete pending receipt of, among other things, documentation of the requisite clinical experience under the supervision of a qualified person. A second letter dated January 17, 1990, from Respondent to Petitioner restated that the application was still missing the items set forth in the prior letter. By Order of Intent to Deny filed April 12, 1990, Respondent informed Petitioner that it was denying his application on the grounds set forth above. Petitioner obtained a master's degree in clinical psychology from the University of Central Florida on December 20, 1985. From October 4, 1985, through October 20, 1988, Petitioner worked full- time as a psychological specialist at the Polk Correctional Institution under the supervision of Gerd Garkisch, Ph.D., who was head of the mental health department at the prison. Petitioner's work qualifies as clinical experience in mental health counseling. Dr. Garkisch does not hold any Florida professional licenses, such as a mental health counselor or psychologist. He is not so licensed in any other state, although he is licensed as a psychologist in Puerto Rico. Dr. Garkisch does not meet the education criteria required for licensure as a mental health counselor. Dr. Garkisch earned a master's degree in clinical psychology, which would otherwise satisfy the educational requirement for licensure as a mental health counselor. However, he received his degree from the Pontifical Catholic University of Rio Grande do Sul, Institute of Psychology, which is located in Brazil. The school is not accredited by an accrediting agency approved by the U.S. Department of Education, Council on Postsecondary Accreditation, or Association of Universities and Colleges of Canada.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation deny Petitioner's application for licensure as a mental health counselor. ENTERED this 11th day of October, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1990. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Linda Biederman, Executive Director Board of Mental Health Counseling 1940 North Monroe Street Tallahassee, FL 32399-0792 Vytas J. Urba, Staff Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Suresh Paul Pushkarna, pro se 309 Hidden Hollow Court Sanford, FL 32773
The Issue The issue is whether Respondent discriminated against Petitioner based on his race and/or disability by terminating his employment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent manufactures rubber hoses for the automotive industry. Petitioner is a black male who began working for Respondent on February 17, 1999. Petitioner's job as a molder required him to work with his hands and arms pinning rubber hoses onto metal pins and removing the hoses from the pins after they cooled down. The job was dangerous and physically stressful to Petitioner's hands and wrists. After working for Respondent for approximately three months, Petitioner suffered a job-related injury. Respondent sent Petitioner to a physician who diagnosed Petitioner as having sprained hand and wrist muscles. The physician prescribed anti-inflammatory medicine for Petitioner and recommended that he return to work on light duty. For the next several months, Petitioner worked as a molder in an area of Respondent's plant that caused less physical stress on the muscles and ligaments in Petitioner's hands and wrists. Petitioner had no problems working in that area. In time, Respondent began to experience a decrease in the number and type of orders that it received from its customers. The change in demand for Respondent's products resulted in a reorganization of the production line, a smaller number of available positions, and in some cases, layoffs of employees. Eventually, Respondent moved Petitioner's work station back to his original position which was physically more stressful. After a couple of months, Petitioner suffered another work-related injury. Respondent told Petitioner that he would have to continue working as assigned because there was no other work or lighter duty available. Petitioner continued to work in the more physically stressful area of Respondent's plant. On one occasion, Respondent took Petitioner to the hospital because he was experiencing pain. Petitioner did not go back to work until he saw a physician who specialized in treating Petitioner's type of injury. Petitioner eventually was diagnosed as having bi- lateral carpel tunnel syndrome. The doctor recommended that Petitioner work on light duty until he could have surgery. Respondent accommodated Petitioner's needs by allowing him to work on light duty pending the proposed surgery. Respondent has a substance abuse policy to maintain a work place that is free from the use of illegal drugs and the use of alcohol. The policy provides for assistance for employees who develop an addiction to drugs or alcohol and who voluntarily seek assistance before the company has knowledge of the problem. If an employee tests positive for illegal drugs or alcohol use while on the job, the employee is subject to immediate termination. Respondent's substance abuse policy provides for drug and alcohol screening under the following circumstances: after any injury that requires outside medical attention; after any incident that results in damage to other associates, company property, or a pattern of personal injuries; upon observance of abnormal or erratic behavior while at work or a significant deterioration in work performance; upon reasonable suspicion due to observable phenomena, direct observation of use, or a report of use by a reliable and credible source; and (e) pursuant to random drug screening. Petitioner never tested positive for illegal drugs or alcohol use while he was working for Respondent. He never even went to work under the influence of illegal drugs or alcohol. However, on August 22, 2000, Petitioner voluntarily advised Respondent that that he had a substance abuse problem and that he desired to participate in the assistance referral program. On August 23, 2000, Petitioner met with Respondent's human resource manager and occupational nurse. The nurse reviewed the company's substance abuse policy and assistance referral program with Petitioner. Additionally. the nurse advised Petitioner as follows: (a) he would have to enroll in a treatment program; (b) he would have to provide Respondent with weekly letters from the treatment program, furnishing information about Petitioner's progress in the program; and (c) he would be subject to random drug screens for two years. The human resource manager advised Petitioner that he would be discharged if he failed to comply with and successfully complete the treatment program. Petitioner indicated that he understood Respondent's requirements for participation in the assistance referral program. Petitioner elected to enroll in an outpatient substance abuse treatment program sponsored by Marion Citrus Mental Health. Petitioner missed his first appointment at the treatment center because he lacked transportation. Petitioner eventually began attending the treatment program three nights a week. He continued to work light duty at Respondent's plant during the day. Petitioner did not furnish Respondent with documentation showing that he had enrolled in the substance abuse treatment program. Instead, Petitioner advised Respondent's occupational nurse that he had signed a release at Marion Citrus Mental Health so that she could call his mental health counselor to verify his attendance in the program. Meanwhile, Respondent continued to reorganize and downsize its operations. When there were more employees restricted to light duty than light duty positions available, Respondent assisted the employees in filing workers' compensation claims and allowed them to stay at home on medical leave for up to 12 weeks. In time, Respondent could no longer accommodate Petitioner's physical injury with a light duty position. Petitioner filed a workers' compensation claim and began staying at home on medical leave on September 11, 2000. On September 11, 2000, Respondent's occupational nurse called Petitioner's mental health counselor at Marion Citrus Mental Health. The nurse learned that Petitioner had kept an appointment at the mental health facility on September 7, 2000. The nurse also learned that Petitioner had not signed a release of information form that would allow the counselor to share any other information about Petitioner's treatment program. On September 12, 2000, Respondent's occupational nurse sent Petitioner a letter. The purpose of the letter was to remind Petitioner that he was required to furnish Respondent with a written statement from the substance abuse treatment facility each week. According to the letter, the written statement was supposed to include Petitioner's treatment plan schedule. The letter advised Petitioner that to remain employed, he would have to keep Respondent fully informed about his progress in and completion of the treatment program. On September 14, 2000, Petitioner called Respondent's occupational nurse to advise her that he could not keep his appointment at Marion Citrus Mental Health that week. Petitioner advised the nurse that he was taking medication that made him dizzy and that he had transportation problems, which made it difficult for him to attend the treatment program. On September 15, Petitioner went to Respondent's plant to see the occupational nurse. Because he claimed that he had not received the letter dated September 12, 2000, the nurse read the letter to him and gave him a copy of it. Once again the nurse explained Respondent's assistance referral program to Petitioner, advising him that Respondent would not tolerate future missed appointments at Marion Citrus Mental Health. The nurse also gave Petitioner a rapid drug screen, the result of which was negative. On November 15, 2000, Respondent sent Petitioner another letter regarding his failure to furnish Respondent with evidence of his attendance at and completion of a treatment program. The letter advised Petitioner that he had to furnish the information on or before November 27, 2000, or risk having his employment terminated. Petitioner received Respondent's November 15, 2000, letter but did not furnish Respondent with the requested information. Petitioner did not call Respondent to explain his failure to do so. In a letter dated November 27, 2000, Respondent advised Petitioner that he was discharged. Petitioner furnished Respondent with a letter dated December 4, 2000, from Marion Citrus Mental Health. The letter states that Petitioner had been enrolled in substance abuse outpatient counseling beginning August 31, 2000, and that he was progressing well. There is no evidence that Respondent applied its substance abuse policy to non-minority employees differently than it did to Petitioner or other minority employees. Additionally, there is no evidence that Respondent treated non-minority employees who had workers' compensation claims differently than it treated Petitioner or other minority employees who were home on medical leave due to a workers' compensation injury. In fact, Petitioner admitted during the hearing that he had no proof that Respondent discriminated against him based on his race. During the relevant time period, Respondent had approximately 52 employees (half black and half white) that suffered a workers' compensation injury. Employees with workers' compensation injuries were allowed to remain on family medical leave for 12 weeks. Employees who returned to work within the 12-week period were guaranteed a job. Subsequent to the 12-week period, employees with workers' compensation injuries were not officially terminated unless they were unable to return to work after 12 months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ray Mayo 708 Southwest Second Street Ocala, Florida 34471 Kade Spencer Dayco Products, Inc. 3100 Southeast Maricamp Road Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Jules Montouri is a retarded adult. Rahya Montouri is his mother. Prior to March, 1980, Jules Montouri resided at a facility maintained by the Department of Health and Rehabilitative Services in Gainesville, Florida. Jules Montouri's mental capacity is retarded to an extent that he will never be able to completely care for himself and meet his own needs. He can, however, with proper training become capable of living a somewhat normal life with minimal supervision. Since March, 1980, Jules Montouri has resided at "Hillcrest House." Hillcrest House is an adult group residential facility maintained by the Provider, Sheltered Community Residence, Inc. The Provider is under contract with the Department of Health and Rehabilitative Services to provide a residential educational setting for retarded adult males. The concept of the program offered by the Provider is to move clients out of heavily restricted institutional environments into less restrictive ones. The program is designed to train clients to meet as many of their own needs as they can, and to gradually move them into less and less restrictive living situations. The Provider has sought to teach Jules Montouri to live in harmony in a minimally supervised environment, and to do his own cleaning and cooking. The Provider's goal with respect to Jules Montouri would be to move him into an apartment-type living facility with several other retarded adult males with a minimal degree of supervision. The Provider's program is an appropriate one for Jules Montouri. Except for problems that have developed between the Provider and Rahya Montouri, the program offered by the Provider would have a reasonable prospect of successfully training Jules Montouri to live in a substantially independent manner. Rahya Montouri disagrees with the goal of the Provider's program to steer Jules Montouri toward a level of substantial independence. She has objected to programs designed to train Jules Montouri for marginal employment, and to programs designed to teach him how to cook for himself. While Rahya Montouri maintains that she wants her son to remain as a resident in the Hillcrest House facility, she has found very little but fault with the program. Since Jules Montouri has been a client of the Provider, Rahya Montouri has complained on a constant basis about virtually every aspect of the Provider's program. She visits her son often at the facility, and has complained verbally to staff members on virtually every visit. She has made many complaints through telephone conversations with members of the staff. She has written numerous letters to complain about the facility, the program, other clients, and the staff. For example, she has expressed suspicion that her son has engaged in homosexual conduct and has implied that members of the staff may have been involved. These suspicions and accusations appear to have been based upon no evidence whatever. Mrs. Montouri's antagonistic attitude toward the Provider's program has become disruptive to the program. The Provider's staff at the Hillcrest facility has spent from five to ten hours per week since Jules Montouri has been a client dealing with complaints from Mrs. Montouri. On at least two occasions, Mrs. Montouri has violated the rights of other clients at the facility by going through their belongings looking for items that she asserted had been taken from her son. Mrs. Montouri's antagonism toward the program has affected the ability of Jules Montouri to participate in it. Jules is caught in the unfortunate cross fire between the program and his mother. As can be expected, it has confused him considerably. Recently, he has told several of the Provider's staff members and social workers from the Department of Health and Rehabilitative Services that he wishes to leave the program. Mrs. Montouri has complained to the Human Rights Advocacy Committee for Retardation. This committee is a group of volunteers who serve to investigate potential emotional, psychological, or sexual abuse of clients. Mrs. Montouri's complaints have resulted in investigations by the Human Rights Advocacy Committee of the Provider's program. The investigations have not revealed any instances of actual abuse. The investigations have, however, had a demoralizing effect upon the staff of the Provider's program, and could seriously damage the program's reputation. Mrs. Montouri's antagonistic attitude toward the Provider's program has become abusive. The time that the Provider's staff has had to devote to her complaints is unjustified. Her antagonistic attitude has rendered it difficult for her son to progress in the program. Her complaints have demoralized the program's staff and could eventually injure the program's reputation. While the program offered by the Provider is an appropriate one for Jules Montouri and could serve to prepare him to live the most normal life possible for him, it is not practical that he continue in the program.
The Issue Whether Respondent violated Sections 480.46(1)(h),(k), Florida Statutes, and Rule 64B7-30.001(1)(d) (formerly 61G11- 30.001(1)(d), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Health, Board of Massage Therapy (Department), is the state agency charged with regulating the practice of massage therapy pursuant to Chapter 480, Florida Statutes. Respondent, Morton Wexler (Wexler), is and has been at all times material to this proceeding a licensed massage therapist in the State of Florida, having been issued license number MA 0021664. In November, 1996, Wexler began working at Beauty Dynamics as a massage therapist. Wexler is 71 years old and has been blind since approximately 1990 due to glaucoma; however he can make out shapes and forms. On or about, January 10, 1997, C. C. went to Beauty Dynamics to receive a massage. Wexler was assigned to perform the massage on C. C. Wexler massaged the back of C. C.'s legs and arms and C. C.'s back. He asked C. C. to turn and lie on her back. A towel covered C. C.'s body from her shoulders to her feet. Wexler began to massage the back of her neck. C. C. told Wexler that she had a knot in her neck area and asked him to work on the knot. Instead of working on the knot, Wexler slipped his hands under the towel, down C. C.'s chest and touched her breasts. C. C. told him not to do that. Wexler again put his hands on and around C. C.'s breasts, pinched her nipples, and moaned. At that juncture, C. C. pulled the towel up and told him to get out of the room. Wexler did not leave at that time. He apologized and said that he did not know what came over him. He said, "I couldn't help myself. I stopped being a massage therapist and became a man." Wexler still did not leave the room, but started to massage C. C.'s feet. C. C. got face to face with him and told him to get out. Wexler went to his employer, Darlene Heckelmoser Sanders, and told her not to charge C. C. for the massage because there had been a misunderstanding. He did not fully explain the situation at that time. C. C. was not charged for the massage. After C. C. left Beauty Dynamics, Wexler told Ms. Sanders that he had touched C. C.'s breasts. He explained that the towel fell off, exposing C. C.'s breasts and that he could not help himself. He told her, "I guess I became a man instead of a massage therapist." Later in the day, C. C. called Ms. Sanders and told Ms. Sanders that Wexler had touched her breasts, squeezed her nipples and moaned. Ms. Sanders terminated Wexler's employment with Beauty Dynamics. At the final hearing, Wexler acknowledged that it was not appropriate for a massage therapist to touch the erectile tissue of a client, including the client's nipples.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Morton Wexler guilty of violating Sections 480.046(1)(h), (k), Florida Statutes, and Rule 64B7-30.001(1)(d), Florida Administrative Code, and suspending his massage therapist license for two years. DONE AND ENTERED this 8th day of May, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building COPIES FURNISHED: Joe Baker, Executive Director Board of Massage Therapy Department of Health 1940 North Monroe Street 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 8th day of May, 1998. Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Craig A. McCarthy, Esquire Agency for Health Care Administration Division of Medical Quality Assurance Post Office Box 14229 Tallahassee, Florida 32319-4229 Morton Wexler, pro se 171 South Hampton Drive Jupiter, Florida 33458
The Issue By agreement of the parties, the issues to be resolved herein are as follows: Whether or not Alachua County denied Petitioner promotion to the position of Drug Counselor II because of her race (black) over her white counterpart. Whether Alachua County denied Petitioner promotion to the position of Victim Advocate Director and revised the position qualifications to preclude Petitioner because of her race (black). If either of these issues were resolved in Petitioner's favor, Alachua County would be guilty of an unfair employment practice pursuant to the Florida Human Rights Act of 1977, as amended [Section 760.10 et seq. F.S.].
Findings Of Fact Petitioner is a black female. She was 41 years of age at the time of formal hearing. Between April 20, 1984 and approximately April 30, 1989, Petitioner was employed by Metamorphosis. Metamorphosis is an organization that was part of the Alachua County Department of Corrections. The Alachua County Department of Corrections was subsequently renamed the Department of Criminal Justice. Petitioner initially was hired as a Drug Counselor I. Metamorphosis' primary goal is to provide long-term, multi-disciplinary treatment and rehabilitation for chronic substance abusers. It accepts only adults with an on-going history of substance abuse with any drug, other than alcohol, as the primary addictive agent. The program's main goal is to help such people become socially functional again. Petitioner initially testified that she had applied for the position of Drug Counselor II on six separate occasions, but testified in detail to only five. Petitioner never received the position of Drug Counselor II. Petitioner professed that she first applied for the Drug Counselor II position in October 1984, approximately six months after she began employment as a Drug Counselor I. However, Petitioner's Alachua County personnel file, which is required to be kept intact for 75 years, does not contain any application by Petitioner for the position of Drug Counselor II in 1984. Petitioner first stated that she was interviewed for the Drug Counselor II position in 1984 by James Whitaker, a white, and Ed Royal, a black. Petitioner later testified that Jim Whitaker and Scott Simmons, a black, interviewed her in 1984. Mr. Simmons did not testify. Mr. Royal did not testify. Mr. Whitaker did not confirm interviewing Petitioner for the Drug Counselor II position in 1984, but he stated that he had participated with Ed Royal in the hiring interview for Petitioner when she was initially hired as a Drug Counselor I from outside the program approximately April 20, 1984. The Drug Counselor II position was filled in 1984 by James Santangelo, a white, who was hired from outside the program to begin work in 1985. Historically, the Drug Counselor II positions within Metamorphosis were the senior therapist positions which required background in community clinical therapy. Petitioner's qualifications for Drug Counselor II as of 1984 were as follows: She received of Bachelor of Science Degree in Criminal Justice from Florida Memorial College in Miami with a minor in Urban Services. She had acted as Vice-president of the Board of Directors for Sexual Abuse Resources Center and was also a public speaker for the Commission on "status of women family violence". At the time Petitioner allegedly applied for the position of Drug Counselor II in 1984, she had been a Drug Counselor I for approximately six months. As Drug Counselor I, Petitioner had counseled individually and in groups, facilitated therapeutic and pre-vocational groups, supervised clients in employment training, vocation, and mock job interviews. She assisted in the intake process and coordinated and provided recreational activities for the clients. She distributed medication to the residents, handled negative attitudes of residents, monitored urinalysis testing, wrote letters to probation officers and judges, kept records, and maintained files for residents, and other work-related duties. Petitioner completed intake interviews, qualified individuals for acceptance or denial into the Metamorphosis Program, supervised and conducted structured groups, trained Drug Counselor Aides for the night shift, signed-off on clients' psycho/social evaluations, and assisted newly hired Drug Counselor II's. James Santangelo, who received the Drug Counselor II position in 1984, had qualifications as follows: Prior to coming to Metamorphosis, he worked for five years in a forensic mental hospital, the North Florida Evaluation and Treatment Center (NFETC). Four of those five years he was a therapist supervisor in a psychiatric unit. He ran therapy groups, scheduled concerns with the staff, held individual sessions with clients, taught adjunctive therapies to the clients, such as stress management, anger management, and drug abuse techniques. Prior to that, he was a school teacher. Santangelo received a Bachelor of Arts with honors from the College of Education at the University of Florida, majoring in psychology. Santangelo also served as an outreach worker for the Alachua County School Board from January through June 1978. In this position he was the first person to contact families whose children were having problems with truancy or whose children were suspected of being victims of child abuse or neglect. He also had an employment history of extensive special skills. Mr. Santangelos's qualifications for the Drug Counselor II position were superior to Petitioner's in 1984, if, indeed, she applied in that year. Petitioner professed that the second time she applied for the Drug Counselor II position was in 1986, when she had approximately two years experience as a Drug Counselor I within the Metamorphosis program. Again, neither Petitioner nor Respondent (by way of Petitioner's personnel file) had any copy of such an application. Petitioner testified that she was interviewed for the position of Drug Counselor II in 1986 by either Jim Whitaker and James Santangelo or by Jim Whitaker and Ed Royal. Neither Whitaker nor Santangelo confirmed that an interview of Petitioner for Drug Counselor II occurred in that year. Ed Royal did not testify, but it was shown that Ed Royal, a black, actually made the appointment of Tootie Richey, a white female, to the Drug Counselor II position which was open in 1986. Ms. Richey was hired from outside the program. Petitioner had "heard" Ms. Ritchey was a licensed clinical social worker but actually had no way of comparing her own qualifications with Ritchey's. Sometime in 1986, the State of Florida had established a means by which persons working with addiction rehabilitation could become "Certified Addiction Professionals" (CAPs) if they had a college degree, or "Certified Addiction Associate Professionals" (CAAPs) if they did not have a college degree. Mr. Whitaker became a CAAP in 1986 and Santangelo became a CAP in 1987. Petitioner never received such certification. In 1987, Metamorphosis was somewhat restructured so that Drug Counselor II positions became supervisory positions in the program. There were then two Drug Counselor II positions. One Drug Counselor II would supervise the Drug Counselor I's and the other Drug Counselor II would supervise the Drug Counselor Aides. Petitioner's first documented application is dated February 2, 1988. She was applying at that time for a position as an Evaluation Rehabilitation Case Worker I, not Drug Counselor II. Petitioner was referred for that position as a qualified candidate, but Edward Woodbury, also black, was selected for that position. In her testimony, Petitioner professed to have applied for Drug Counselor II, Rehabilitative Case Worker, and Program Coordinator by way of "Applicant Update Sheets" filed on June 27, 1988, October 4, 1988 and November 29, 1988. The greater weight of the credible evidence shows that Petitioner's June 27, 1988 application (P-1) was for promotion to be Program Coordinator of the Metamorphosis Program. This document, filled out at that time entirely by Petitioner, asserts that she had previously applied for Rehabilitation Case Worker and Drug Counselor II, but does not state when she applied. At that time, Jim Whitaker, a white, was the Program Coordinator. During the 1987 reorganization, the Program Coordinator position had been changed from clinical duties to administrative duties which Whitaker did not want to do and did not feel capable of handling. Whitaker therefore requested a "downward promotion" from Program Coordinator to some clinical position. Since there was no vacant clinical position (either as Drug Counselor II or otherwise) in the program, the Alachua County Personnel Director, Colleen Hayes, suggested that the position of Program Coordinator be posted as needing to be filled but that the job posting be made only within the Metamorphosis program itself so that only Metamorphosis staff would be allowed to apply. Ms. Hayes further suggested that when the promotional decision was made, Whitaker should be allowed to go into the lower position vacated by whatever Metamorphosis staff member was promoted into the Program Coordinator position currently held by Whitaker. It was understood that Whitaker would suffer no decrease in pay in the lower position of Drug Counselor II. Ms. Hayes' suggestion was followed, and ultimately, James Santangelo, then a Drug Counselor II, was selected to replace Whitaker as Program Coordinator. Whitaker exercised his option to take Santangelo's vacated Drug Counselor II position. Contrary to Petitioner's testimony, Santangelo's Drug Counselor II position was never advertised nor open to competitive interviewing at that time, and therefore there was no Drug Counselor II position vacant for which Petitioner could have applied. However, Mr. Whitaker's qualifications for the Drug Counselor II position were clearly superior to Petitioner's, anyway. At the time of Whitaker's "downward promotion," Whitaker's qualifications (for Drug Counselor II) included 15 years of experience on the Metamorphosis staff, beginning on October 14, 1974, as an entry level Drug Counselor I on night shift for one and a half years. He had served on the day shift for one year and then been promoted to Drug Counselor II where he had served until 1976. He had life experience as a drug abuser, including 13 months of Metamorphosis residential care for drug abuse, which was and is considered very valuable in a drug addiction counselor. He also had, over time, worked every shift, every level of group with every client from clients #86 to #1100 sequentially, and with every staff person in Metamorphosis to that date. Whitaker also had been Program Coordinator from 1978 to 1988. At the time of Whitaker's "downward promotion," Santangelo's qualifications for Program Coordinator included all of those set out supra in Finding of Fact 11, plus approximately two years as a Drug Counselor II. By the time of Whitaker's "downward promotion", both Whitaker and Santangelo had been state certified through examination. (See Finding of Fact 15). At the time of Whitaker's "downward promotion", Petitioner had the same qualifications set out supra in Finding of Fact 10, plus an additional two years as a Drug Counselor I. She was not state certified as an addiction professional. By comparison, James Santangelo's qualifications for the Metamorphosis Program Coordinator position were clearly superior to those of Petitioner. Also, the record reflects no persuasive evidence that Respondent's downward transfer process, which on this occasion accommodated Mr. Whitaker, was contrary to, or unique within, the standard operating procedure of the Respondent's personnel department. There likewise is no persuasive evidence that the downward transfer process required the promotion of a Drug Counselor II (Santangelo) over a Drug Counselor I (Petitioner) into the Metamorphosis Program Coordinator position, so as to be "rigged" to prohibit Petitioner, as a minority employee, from being promoted. The greater weight of the credible evidence shows that Petitioner next applied for a Drug Counselor II position on October 4, 1988 (P-2). That document, made out solely by Petitioner, asserts she previously applied for Drug Counselor II and Program Coordinator without stating any dates. Lennard Perry, a black, who was seeking a downward transfer from Evaluation and Rehabilitation Case Worker I was ultimately hired for the Drug Counselor II position, but he was hired on a competitive basis. Petitioner's November 29, 1988 "Applicant Update Sheet" (P-3), again made out solely by herself, asserts she had previously applied for the Drug Counselor II position in September 1988. There is no documentary evidence of any kind of September 1988 application by Petitioner. Petitioner herself testified that the Drug Counselor II position was unfunded after her first 1988 application and then stated it was unfunded after her third 1988 application. This confusion may account for her saying at one point that she had applied for Drug Counselor II six times. However, Respondent's witnesses were credible and persuasive that the Drug Counselor II position was phased out after Petitioner last applied due to lack of funding and further reorganization. In making the foregoing findings of fact, the undersigned has rejected the testimony of Petitioner and Warren A. McCluney that a white man named Alan Pappas ever filled the Drug Counselor II position after any of Petitioner's 1988 applications. Their unsupported testimony on this issue is not probative that Alan Pappas was ever employed full-time and paid by Metamorphosis, even though Mr. McCluney stated that he saw Mr. Pappas receive a paycheck at the same time Mr. McCluney himself did. Mr. McCluney did not specify that the check Pappas allegedly received was a Metamorphosis or county check. He also testified that Mr. Pappas was only present at Metamorphosis for nine months during 1987, and that period bears no relationship to Petitioner's not being promoted in 1988. Other witnesses clearly testified that Mr. Pappas never worked for Metamorphosis in any capacity at any time. There is no evidence or pleading of record to support Petitioner's allegations that she filed any formal discrimination claim before 1988. The position of Victim Advocate Director was advertised by posting of the job description from February 13 to February 17, 1989. Petitioner applied for the position on February 16, 1989. Respondent received so few applicants in response to the February 1989 Victim Advocate Director job posting that the Respondent's Personnel Director feared the hiring procedure would be compromised. No one was hired for the Victim Advocate Director at that time. The dearth of applicants was believed to be the direct result of the low number of Victim Advocate Programs statewide so that, in turn, few people could meet the job position requirement of a minimum of one year's supervisory experience in a Victim Advocacy Program. It was ultimately decided to rewrite the minimum qualifications and re-advertise. At no time material did Petitioner have one year's supervisory experience in a Victim Advocacy Program. The only pertinent revision of the minimum position qualifications was that one year of supervisory experience in any related area was acceptable the second time the Victim Advocate Director position was advertised. The second time the Victim Advocate Director position was advertised, an applicant's supervisory experience did not have to be specifically in a Victim Advocate program. The job position revision was reviewed by Ida Rawls-Robinson, the Director of the Alachua County Equal Opportunity Office prior to publishing it. Ms. Rawls-Robinson, a black, approved the amended requirements because the amendment broadened the base of the pool of qualified people, thus inferentially making the position more accessible to minorities. Before the second job-posting, Petitioner received a letter dated April 14, 1989 from Personnel Director, Colleen Hayes, advising Petitioner that the job criteria for the position of Victim Advocate Director had been revised. In Colleen Hayes' April 14, 1989 letter, Petitioner was asked to complete the enclosed application update sheet if she felt she was still qualified after the revision of the minimum qualifications, but she did not do so. Instead, Petitioner forwarded a memorandum to Colleen Hayes to the effect that since her original application was less than six months old, Petitioner would not submit an application update in response to the revised job description, although she remained interested in the position. The second job-posting with the broadened minimum qualifications was posted from April 17 to April 29, 1989. Petitioner was not referred for the position of Victim Advocate Director because she did not have the minimum one year supervisory experience in the revised category either. The requirements had always required one year of supervisory experience in any event. The position of Victim Advocate Director was never actually filled by Respondent. It was ultimately moved to, and funded by, the State Attorney's Office.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enters a final order dismissing the petition for relief filed herein. DONE and ENTERED this 24th day of July, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1 Covered under preliminary matters 2-5, 7-8, 17-18, 20-21 23-26, 29-39 Accepted 6, 9, 15-16, 19, 27-28 Accepted in substance but modified to more accurately reflect the record as a whole, to eliminate hearsay, and to describe and resolve the issues as raised by Petitioner. 22 Rejected as stated. Petitioner initially testified to this. Later, she professed that the budget cuts occurred after the third application. The RO reflects all reconciled, competent, credible evidence. Respondent's PFOF: Respondent waived filing posthearing proposals. COPIES FURNISHED: Bruce W. Smith, Esquire Post Office Box 450 Gainesville, Florida 32602 Mary Marshall, Esquire Alachua County Attorney's Office Post Office Box 2877 Gainesville, Florida 32602-2877 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113
The Issue The issue in this case is whether Respondent, Hae Suk Bornholdt, committed the offense alleged in an Amended Administrative Complaint issued June 12, 2000, and, if so, what penalty should be imposed upon Respondent.
Findings Of Fact Petitioner, the Department of Health, Board of Massage Therapy (hereinafter referred to as the "Board"), is the state agency charged with the authority and duty to regulate the practice of massage therapy in the State of Florida. Chapters 20, 456, and 480, Florida Statutes. Respondent, Hae Suk Bornholdt, applied for licensure as a massage therapist in the State of Florida on December 1, 1999. Ms. Bornholdt's application for licensure was approved and she was licensed as a massage therapist in the State of Florida effective December 28, 1999. Respondent's license number is MA 30419. At all times relevant to this proceeding, Ms. Bornholdt was employed by Fame Limited, Inc. (hereinafter referred to as "Fame"). Fame is located at 4799 North Federal Highway, Boca Raton, Florida. Fame is a massage establishment. On December 2, 1999, an undercover policy investigation was begun of Fame in response to anonymous complaints of sexual activities between massage therapists and male clients of Fame. Robert F. Flechus, a detective with the Boca Raton Police Department, entered Fame posing as a client. Detective Flechus paid $80 for a massage. He was greeted by Ms. Bornholdt, who identified herself as "Tina." Ms. Bornholdt led Detective Flechus to a locker room where he undressed, left his clothes in a locker, and wrapped a towel around himself. Detective Flechus took a sauna and was then led by Ms. Bornholdt to a shower room where he showered. Ms. Bornholdt washed Detective Flechus, including his buttocks, with a sponge. After showering, Ms. Bornholdt led Detective Flechus into a room where she gave him a massage. During the massage, Ms. Bornholdt suggested that Detective Flechus masturbate while she massaged his stomach. When he refused, Ms. Bornholdt took Detective Flechus' hand and attempted to place it on his penis. Detective Flechus immediately pulled his hand away. Ms. Bornholdt then removed the towel that was partially covering Detective Flechus' genitalia and began to stroke his penis. Detective Flechus stopped Ms. Bornholdt and got up off the massage table. Ms. Bornholdt failed to properly drape Detective Flechus when she allowed his penis to be exposed to her during the shower and while he was on the massage table. Ms. Bornholdt was not licensed as a massage therapist on December 2, 1999. Ms. Bornholdt acted as a massage therapist with Detective Flechus and other clients prior to receiving her license on December 28, 1999. Detective Flechus' testimony in this matter was clear, consistent, and credible. Ms. Bornholdt's testimony on the other hand was inconsistent, unconvincing, and not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Massage Therapy finding that Hae Suk Bornholdt committed the offense alleged in the Amended Administrative Complaint issued on June 12, 2000; it is further RECOMMENDED that the Board of Massage revoke Ms. Bornholdt's license to practice massage therapy and assess the costs of investigating and prosecuting this case. DONE AND ENTERED this 16th day of August, 2000, 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 16th day of August, 2000. COPIES FURNISHED: Dennis G. King, Esquire Rudolph C. Campbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Mail Stop 39 Tallahassee, Florida 32308 Lawrence K. Fagan, Esquire LaValle, Brown, Ronan & Soff 750 South Dixie Highway Boca Raton, Florida 33432 William H. Buckhalt, Executive Director Board of Massage Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
