The Issue The issue in this case is whether the allegations of the Administrative Complaints are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this matter, Respondent Robert S. Colen was a licensed mental health counselor, holding Florida license MH 0001546. The Respondent’s business address is 800 Belcher Road, North, Suite 1, Clearwater, Florida 34625. The Respondent was trained in a form of mental health counseling identified as “Gestalt” or “humanistic” therapy. Such therapy includes physical, non-sexual, touching, such as hugs. There is no credible evidence that therapeutic touching within a counseling relationship is inappropriate. A number of the Respondent’s clients testified that he almost always hugged them at the end of the counseling session. The only witness who testified that the Respondent did not hug was a male patient who indicated that he was not inclined to permit the Respondent to hug him. Other than the three patients identified herein, none of the witnesses regarded the hugging as sexual, and none seemed at all offended by the physical contact. Patient M. C. Patient M. C. was referred to the Respondent by Dr. Michael Gemino, the patient’s psychiatrist. At the time of the referral, M. C. was diagnosed with bipolar disorder, alcohol abuse, and passive aggressive disorder. She was referred to the Respondent for counseling related to alcohol addiction and co-dependency issues. During the course of therapy, the Respondent began to hug M. C. as he did many of his other patients. At some point during the therapy, a discussion of different types of “love” occurred. Based on that discussion, M. C. apparently became convinced that the Respondent was in love with her and she with him. At some point during the counseling, the Respondent and M. C. began to experience some type of emotional involvement which exceeded the typical counselor-client situation. There were extended periods when the Respondent held M. C. in his arms as she recounted painful experiences she had suffered. M. C. asserts that the Respondent told her that he loved her and that beginning in February 1994, she engaged in sexual activity with the Respondent. She asserts that the two would lie on pillows on the floor of his office, that the Respondent would touch her unclothed genital area with his hands and mouth, and that she would perform fellatio on the Respondent. In about July 1994, M. C. reported the alleged sexual activity to Dr. Gemino, who referred her to Kerry Kushmick, an unlicensed individual apparently working with Dr. Gemino. Mr. Kushmick met with the Respondent and M. C. to discuss the matter. Although M. C. repeated her allegations, the Respondent denied any sexual contact, but acknowledged that the two were in a "psychological cocoon,” that he was "in over his head," that he should have terminated therapy earlier, and that there were some “boundary” issues which needed resolution. The evidence fails to establish that the Respondent engaged in sexual activity with M. C. The recollection of M. C. as to times and circumstances under which the sexual activity occurred lacks credibility. The Respondent’s office was located immediately adjacent to a public waiting area which served a number of professional offices. The receptionist’s desk in the waiting area was located next to the Respondent’s office. The walls in the office suite were poorly insulated and sound traveled from the offices into the waiting area; however the receptionist testified that she heard nothing indicating any sexual activity ever took place in the Respondent’s office. She also testified that the door to the Respondent’s office closed improperly and would not lock. The evidence establishes that the Respondent did not maintain an appropriate therapeutic relationship with M. C. The Respondent did not recognize that transference and counter- transference were occurring, and did not timely seek assistance to resolve the situation. The Respondent's failure to recognize the developing situation with M. C. was detrimental to her mental condition and constitutes a failure to meet minimum standards of performance as his professional activity. At some point after M. C. spoke to Dr. Gemino, he provided to her the names of other patients whom he had referred to the Respondent for counseling. M. C. met separately with J. M. and R. P. They discussed the interactions with the Respondent. The former patients continued to maintain contact for a period of time after the initial meeting. At the hearing, J. M. and R. P. expressed concern regarding the emotional condition of M. C. Patient J. M. In about October 1993, J. M. was referred to the Respondent by Dr. Gemino, the patient’s psychiatrist. At the time of the referral, J. M. was diagnosed with bipolar disorder. She was referred to the Respondent for marital therapy, after having been involved in sexual relations outside her marriage. J. M. attended initial counseling session with her husband. She attended subsequent sessions without her husband. She also participated in group therapy at the Respondent’s office. J. M. dressed in a “seductive” manner for counseling sessions, frequently wearing very short shorts. At one time, after a group therapy session, the Respondent received a complaint from another patient regarding J. M.’s attire during counseling, stating that she was sitting on a pillow on the floor, was not wearing underwear, and was exposing herself. J. M. testified that she did not wear underwear during the group therapy and further acknowledged that she was not wearing underwear at the time of her testimony. J. M. asserts that during the initial counseling session, while her husband was out of the room, the Respondent told her she was attractive. J. M. asserts that during subsequent session, which she attended alone, the Respondent would lie on the pillows with her, touch her, tell her she was beautiful and call her his “soul mate.” She asserts that the Respondent was always touching her and kissing her. The evidence fails to support the assertions J. M. asserts that the Respondent purchased gifts for her. The Respondent acknowledged that he may have purchased some type of tape for her, but there were not multiple gifts. J. M. asserts that he did not charge for all sessions. The Respondent acknowledged that he did not charge for all her sessions and said that is frequently the case when a patient is undergoing financial difficulty. J. M. testified that the Respondent told her she should take a test for the AIDS virus. She believed that the Respondent made the suggestion for the purpose of determining her health status prior to engaging in sexual relations with her. The Respondent testified that he made the suggestion based on her sexual activity outside her marriage and the fact that she was referred to him for marital counseling. Despite having been interviewed by an investigator for the Department, J. M. testified for the first time at the hearing that the Respondent told her he was going to “lick her pussy like you’ve never had it before.” There is no credible evidence that the Respondent made the statement. J. M. terminated her therapy with the Respondent because he indicated she needed to pay him some of the money she owed from the counseling. The evidence fails to establish that the Respondent acted inappropriately in his interaction with J. M. Patient R. P. The Respondent provided therapeutic counseling to R. P. from January to March of 1988. At the time of the 1988 counseling, R. P. was being treated for an inability to accept affection. From August to October 1991, the Respondent engaged in a second round of therapy with R. P. She was depressed, lacked a social support system, and was dependent on prescription pain medication. She was also involved in a difficult relationship with her mother. There were only four sessions during the 1991 round of therapy. During the second round of therapy, the Respondent encouraged her to bring her mother to counseling (her mother declined.) The Respondent hugged and touched R. P during the sessions, told her she was special and a valuable person. R. P. had expressed concern about being able to be physically affectionate with a man. Part of the Respondent’s plan of therapy was physically hugging or holding R. P. in a manner intended to permit her to become comfortable with such attention in a non-threatening environment. Some of the hugs lasted for up to 15 minutes. Depending on the mental status of the patient, a 15 minute hug, while unusual, is not necessarily inappropriate. R. P. asserts that the Respondent told her she was his “soul mate” and discussed sexual relations with her. She asserts that he told her he had feelings about her which he had not experienced with other patients. The evidence fails to support the assertion. After R. P. stopped attending the sessions, she received two letters from the Respondent, the second of which made her feel “threatened.” He also called R. P. several times. R. P. believed he was trying to make her feel guilty. The Respondent asserts that he was concerned about her discontinuation of therapy and the fact that she owed him money. The evidence fails to establish that the Respondent acted inappropriately in his interaction with R. P.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a Final Order imposing a fine of $1,000 on, and issuing a public reprimand to, Robert S. Colen. DONE AND ENTERED this 30th day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1998. COPIES FURNISHED: William C. Childers, Esquire Thomas Wright, Esquire Anne Cox, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32317-4229 Louis Kwall, Esquire Kwall & Showers, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Lucy C. Gee, Executive Director Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether the Petitioner's request for exemption from disqualification should be approved.
Findings Of Fact The Petitioner's spouse seeks to operate a family day care center. As part of the application process, the Petitioner was subjected to a "level 2" screening process. Based on the screening, the Respondent determined that the Petitioner had been subjected to an arrest on December 6, 1998, for domestic battery against a girlfriend. On February 22, 1999, the Petitioner entered a guilty plea to misdemeanor battery and was placed on one-year probation and ordered to have no further contact with the victim. The probationary period was apparently completed without incident. The Petitioner also paid court costs and completed a "Batterer's Intervention Program." The girlfriend who was the victim of the battery is not the Petitioner's spouse. There is no evidence that there has been any further contact with the victim. There is no evidence that there has been any domestic discord between the Petitioner and his spouse. During the background screening process, the Petitioner candidly informed the Respondent of the 1999 incident. The Petitioner also related information about an automobile-related incident in Massachusetts, which lead the Respondent to conduct further inquiry into the Petitioner's history prior to moving to Florida. Upon further inquiry, the Respondent determined that in 1991 the Petitioner had been convicted in Massachusetts of assault with a dangerous weapon and destruction of property with a value in excess of $250. The dangerous weapon employed was apparently an automobile that the Petitioner used to damage the automobile of another man with whom the Petitioner was fighting. The Respondent also determined that in 1993 a domestic violence-related restraining order was entered in Massachusetts against the Petitioner and involving a woman unrelated to the women otherwise referenced herein. After obtaining the information related to the activity in Massachusetts, the Respondent asked the Petitioner to provide an explanation and documentation. The Petitioner complied with the request. Other than completion of the "Batterer's Intervention Program" there is no evidence that the Petitioner has undergone any counseling to address anger issues and related behaviors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services deny the request of Sergio Mercado for exemption from disqualification. DONE AND ENTERED this 25th day of October, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 25th day of October, 2002. COPIES FURNISHED: Sergio Mercado 4909 Drift Tide Drive New Port Richey, Florida 34652 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 314 Largo, Florida 33778-1630 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
The Issue The issue is whether the license of Rev. Harris to operate a foster home should be terminated by the Department for the reasons stated in the Department's letter of October 7, 1988.
Findings Of Fact The Reverend Melda Harris provided foster care to children in the custody of the Department of Health and Rehabilitative Services (the Department). She became the foster parent of four siblings, Clive Davidson (born 9/30/78), Iman Davidson (born 1/1/80), Joy Davidson (born 7/24/81), and Lucky Davidson (born 12/2/83). The older children had been placed with Rev. Harris in 1985, the younger two were placed with Rev. Harris in 1987. The Davidson children had been abused by their natural parents and had been removed from their care; the extent and nature of the abuse is not clear from the testimony. A letter from Howard Marcus and Dr. Harvey Parker to the Department dated June 21, 1988, indicates that the natural parents were physically violent, the parents were frequently separated, and that ultimately the natural parents disappeared. The oldest sibling, Clive, was approximately 9 years old. He was being seen by a therapist, Art Jones, M.S.W., who was of the opinion that Clive should be separated from his siblings because of aggressiveness (physical violence), but especially because he had attempted on at least two separate occasions to simulate intercourse with his seven year old sister, Joy, while clothed. Therapy at the Henderson Mental Health Center was terminated because the therapist was of the opinion that Clive's sexual problems and propensity to act out further with his sister could not be dealt with effectively while he remained in the same home as his sister. According to Dr. Parker and Mr. Marcus, Clive engaged another little girl in simulated intercourse with him. On that occasion, both were unclothed. Joy Davidson was in treatment at the Broward County Sexual Assault Treatment Center due to her experiences with Clive. Rev. Melda Harris is a deeply religious woman who brought all the children up in a religious atmosphere. The children were actively involved in Massonic organizations where they interacted with other children. Rev. Harris selected the movies the children would watch, and generally they would watch a religious television station in the Broward County area (Channel 45), although they were not exclusively limited to that form of television. The children were also seen regularly by Ann E. Vaughn, who was their guardian ad litem for a period of four years before they were placed with Rev. Harris. Ms. Vaughn continued in that role after their placement in the Harris foster home. Ms. Vaughn would visit the home without prior appointments, there is no reason to believe that what Ms. Vaughn saw was not typical of the interaction of Rev. Harris and the children at the foster home. Ms. Vaughn was of the opinion that all the children had love and affection for Rev. Harris and that she did not concentrate her affections only on the youngest child, Lucky. The children generally stayed in the fenced-in yard at the Harris home because drug activity in the neighborhood made it unsafe for them to play in the street and because of the heavy traffic in the street outside the home. Ms. Vaughn was also worried the children's natural father would occasionally slip into the area, and Rev. Harris was concerned about leaving the children outside out the fenced area of the residence due to fear that the father might try to kidnap them. The most serious problem which the Department had with Rev. Harris occurred on August 10, 1988, when she came to the HRS office with Clive, and asked to return him to HRS custody. The Department was adamant that if she was not willing to keep Clive, the Department would remove the other children from her home in order to keep the siblings together. The Department staff took offense at Rev. Harris' action. In view of the serious consequences which could arise from further incidents of sexual acting out by Clive against his younger sister, Joy, it was entirely appropriate for Rev. Harris to be concerned about his remaining in the home, especially when the social worker assigned as Clive's therapist had resigned from the case in May of 1988 out of a belief that "Clive's sexual problems and propensity for further acting out in that manner, could not be effectively dealt with so long as he remained in the same home as his sister." (Respondent's late-filed exhibit, page 4, letter of June 21, 1988, from Howard Marcus and Harvey C. Parker, Ph.D., to Deborah Owens.) It is also significant, however, that Rev. Harris' decision to return Clive to HRS is not listed as one of the grounds the agency cited in its October 7, 1988, letter stating the Department's decision to close Rev. Harris' foster home.
Recommendation It is recommended that a final order be entered by the Secretary of the Department of Health and Rehabilitative Services dismissing the allegations contained in the letter of October 7, 1988, which forms the basis for the Department's notice of intention to close Rev. Harris' foster home (and implicitly to revoke her license to operate a foster home), and that her license be fully reinstated. RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of July 1992. WILLIAM R. DORSEY, JR. 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 23rd day of July 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1338 Rulings on findings proposed by the Department: The description of the children is adopted in Finding of Fact 1. The description of Ms. Andrews is rejected as unnecessary. Generally rejected because the question whether the children were allowed to eat is not at issue based on the charging document the Department mailed to Rev. Harris. Based upon the testimony of the Department's witnesses, I do not, believe that the children were not allowed to eat for an entire day, although the children may have said that. Whether the children were allowed to play outside the home and were restricted to viewing a religious television station are discussed in Findings of Fact 3 and 4. and 4. Rejected as unnecessary and irrelevant to the charges filed. The "additional concerns" are not appropriate because they are not the basis for the charge filed. Moreover, locking the children in their bedrooms was a misguided but understandable precaution given the concern about sexual acting out by Clive. The children were permitted to play outside, in their yard, and they did visit with other children especially at religious functions they attended, and at school. The children were not limited to watching a religious television channel. See, Finding of Fact 3. The allegation that Rev. Harris showed favoritism to Lucky is rejected. See, Finding of Fact 4. Precisely what it means to "speak poorly to the natural parents in front of the children" is not clear (Department proposed finding 5E). It is unreasonable to believe that the family unit could have been strengthened. The relationship with the children's natural parents has been severed by their adoption, and the removal from the custody of the natural parents appears to have been entirely appropriate. Similarly, the allegation that statements made by Rev. Harris "created concern" is difficult to understand, since there is no indication that there is any legal standard to be applied which forbids conduct by foster parents which "creates concern" among Department staff. Obviously Clive had serious problems, over and above his sexual problems, as indicated by the records placed in evidence. Surely Rev. Harris was not required to ignore instances of lying or stealing. It is by no means appropriate to conclude that Rev. Harris breached "a confidentially standard" (whatever that might be) because Ms. Johnson-Gilcort wrote that Clive "rape his sister and was no good." Ms. Johnson-Gilcort did not testify, and is not clear that Ms. Johnson-Gilcort's characterization of Clive in the letter had its source in Rev. Harris. Adopted in Finding of Fact 5. Rejected as inconsistent with the charging document, the October 7, 1988, letter. The issues for hearing were not framed in the letter dated September 12, 1988. Rejected as irrelevant to the issues framed for hearing. 9 and 10. Adopted in the Preliminary Statement. Generally adopted in the Preliminary Statement. Adopted in the Preliminary Statement, although this is not an "appeal." The testimony of Rev. Harris is addressed and generally adopted in Finding of Fact 5. Rejected as argument and irrelevant. The question is not whether Ms. Harris received a letter of August 11, 1988, but whether the Department could prove the allegations made in its letter of October 7, 1988, which it drafted, and which framed the issues for hearing. Generally adopted in Finding of Fact 4. 16 - 18.Rejected as unnecessary. COPIES FURNISHED: Jacqueline S. Banke, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Room 513 Fort Lauderdale, Florida 33301-1885 Rev. Melda Harris 681 N.W. 37th Avenue Lauderhill, Florida 23311 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner has had a relationship with his wife since they were 16 years old. At the time the hearing was conducted, husband and wife were 24 years old. They had been married for approximately three years and had a child who was four years old. Beginning February 1995, Petitioner became suspicious that his wife was having an affair with another man. Around that time, the couple argued several times a week. This would cause Petitioner to leave their home. In addition, Petitioner and Mrs. McCall would not speak to each other for a couple of days following these arguments. On March 16, 1995, the man with whom Petitioner's wife was having the relationship called the couple's home. On that occasion, Mrs. McCall would not say who was speaking to her on the telephone and appeared secretive. It led to a further argument between Petitioner and Mrs. McCall. Petitioner then grabbed his keys and started to leave. Mrs. McCall struggled with him to get the keys out of his hand. During the struggle, Mrs. McCall was scratched on her chest. The noise that the couple made was sufficiently noticeable that the neighbors called the police to investigate. When the police arrived at Petitioner's home on March 16, 1995, Petitioner was sitting on the couch. The police noticed the visible marks on Mrs. McCall's chest. Consequently, Petitioner was charged with battery under Section 784.03, Florida Statutes. On March 18, 1995, Petitioner pled no contest to the offense of battery for the incident that took place on March 16, 1995 involving his wife. He was given two days unsupervised probation and required to pay $75.00 in court costs. The court adjudicated Petitioner guilty of the offense. After the March 16, 1995 incident the McCalls continued to argue. On April 11, 1995, when Petitioner left home to go to work that morning, he told Mrs. McCall that he was going to leave work in the afternoon and travel to Deland, Florida, to see his father. Instead, Petitioner went home that afternoon to get some papers before making the trip to see his father. When he arrived at his home a person named Renee, Mrs. McCall's friend, was watching the McCalls' child in one room, while Mrs. McCall was in bed with her male acquaintance in the McCalls' bedroom. When Petitioner discovered his wife with another man, he began to scream and yell and picked up his son to leave the home. Mrs. McCall tried to intervene and stop Petitioner from leaving the home with her son. During the course of this incident, Petitioner grabbed his wife by the arms and pushed her aside, causing her to fall against the wall. The areas upon which she was grabbed by Petitioner were bruised. Mrs. McCall is prone to bruising because she is a hemophiliac. Their child was not harmed during this physical exchange between the couple. After the exchange, Petitioner left the home and went to Deland, leaving the child with his mother. Before discovering his wife in bed with the other man, Petitioner did not know, as a matter of fact, that his wife was having a relationship with that person. When Petitioner discovered his wife in bed with the other man, he did not threaten her, notwithstanding the yelling and screaming. Renee had called the police when Petitioner arrived at the home, but the police did not arrive for one-half hour to one hour after Petitioner had left the home. Mrs. McCall was concerned about how her husband would react beyond the point where he had discovered her with another man. Therefore, she determined to make a complaint about her husband's physical activity in which he bruised her arms. Based upon that complaint, the police determined to arrest Petitioner. Following the trip to Deland Petitioner came back that night and spent the night with a friend in Jacksonville, Florida. The next morning Petitioner called Mrs. McCall and inquired concerning the circumstances of their exchange. Mrs. McCall told him that she had called the police after he left because she was afraid of what he might do to her and that made her "press charges". Petitioner responded by telling his wife where he was located and telling her to have the police come to that location and pick him up, which they did. When the police arrested Petitioner for the events on April 11, 1995, they again charged him with a violation of Section 784.03, Florida Statutes, and made mention that the battery for which he was accused was associated with domestic violence. Following the arrest, Mrs. McCall spoke with the state attorney's office to have them drop the charges for the battery that occurred on April 11, 1995. The state attorney's office was unwilling to drop the charges in view of the prior charge dating from March 16, 1995. Petitioner pled no contest to the battery offense related to the April 11, 1995 incident. He was given a 30-day sentence, credited with serving two days of the sentence, and the remaining 28 days of that sentence were suspended, conditioned upon the successful service of probation. The probation was served for nine months. Petitioner was adjudicated guilty for the offense and was required to participate in a program for individuals who had committed offenses involving domestic violence. The program emphasized controlling one's aggression. Petitioner completed the program related to management of his aggression. In the program to deal with domestic violence, Petitioner and other participants were required to discuss the experiences they had concerning domestic violence. The McCalls lived apart from April, 1995 until January, 1996. During that time, Petitioner kept their child for the most part because his living arrangements were more suitable than those under which Mrs. McCall existed. While they were estranged, initially, the couple did not do things together and would separately spend time with their child. At the end of their estrangement the couple began to do things as a family unit. Subsequent to being reunited, the McCalls had been seeing a marriage counselor for about a month at the time the hearing was conducted. The McCalls had been to four sessions with the counselor and intended to continue seeing a marriage counselor in the future. The McCalls described their relationship as improving since they have been reunited. Prior to the events in March and April, 1995, in which Petitioner battered Mrs. McCall in the manner described, Petitioner had never struck his wife. As explained at the hearing, Mrs. McCall is not concerned that her husband will batter her in the future. Petitioner holds a bachelor's degree in psychology. He has one year of study in sociology in a bachelor's-level program. In the past, he worked two and one-half years for ARA Living Centers, providing direct care to adults. He left that position and took employment with an organization known as New Directions. This was a mental-health position, working with children on an out- patient basis. Petitioner held this job for approximately two years. Beyond that point, Petitioner took a position as a child-guidance case worker in a mental-health capacity. It was that position that prompted the screening that was conducted in January, 1996, leading to the decision to disqualify him from that employment. The procedures followed in the disqualification are as detailed in the preliminary statement above. Petitioner contested the decision to deny him an exemption from disqualification. His request to be heard before the Respondent and to seek a formal hearing to contest the preliminary decision by Respondent denying the exemption from disqualification were both timely filed. Before being terminated from his position as a child-guidance counselor based upon the disqualification, Petitioner had worked voluntarily at a group home for children. In the past, when working with children and adults, Petitioner has never been disciplined or reprimanded concerning his conduct in providing that care. Mr. George Robinson is an HRS Protective Services worker. He began work with Respondent on June 12, 1995. Prior to that employment, Mr. Robinson worked in the Mental Health Center in Jacksonville, Florida, as a discharge planner. Mr. Robinson knew Petitioner when they attended college. He considers Petitioner his friend and speaks highly of Petitioner's character. In addition, Mr. Robinson is familiar with Petitioner's work history and recommended that Petitioner receive a position at the Mental Health Center of Jacksonville, Florida, where Petitioner was employed from November 15, 1993 through November 30, 1995. Jane Escobar, M.S.W., Manager, Children's Department for the Mental Health Center of Jacksonville, Inc. refers to Petitioner's work history with that organization. Among the duties Petitioner performed with the organization was as an individual assigned to the Therapeutic Group Home within the Mental Health Center, in which position Petitioner worked with emotionally-disturbed children. This work entailed association with counseling groups, individual social skills training, chart documentation, and recreational activities. It also involved interaction with families and other treating professionals. Following receipt of his bachelor's degree, Petitioner was promoted to a position of mental-health counselor within the Mental Health Center, a position which required him to carry a case load of approximately 15-18 clinical cases, involving individual counseling with children, family work, and often involving seeing the children in their homes, as well as at their schools, and in his office. Petitioner left the position with Mental Health Center of Jacksonville in good standing to pursue a career-enhancing position. Ms. Escobar considers Petitioner to be a well-liked and a highly-respected clinician. Ms. Escobar indicates that the Mental Health Center would willingly return Petitioner to employment if a position were available at the Center. Mr. Val Thomas has written to commend Petitioner for his work as a counselor for Mr. Thomas' son. Mr. Thomas attributes Petitioner's good works for helping the Thomas family to correct problems which their son was having. Ms. Nancy Edmonds, a clinical social worker, speaks favorably of Petitioner, whom she has known in a professional and personal capacity for two years. She is impressed by Petitioner's moral character and finds Petitioner to be an understanding and caring person. She has found him capable of dealing with the most difficult circumstances in their work, without losing his composure. She finds that he works well with children and adolescents. Mr. Brian J. Maxson is the First Step Coordinator at Hubbard House, the facility in which Petitioner participated in group sessions concerning his conduct toward his wife, as a condition of his probation. Mr. Maxson confirms that Petitioner completed that program. At present, Petitioner works with AT&T in soliciting customers to use its services. He had held that position for two months when the hearing commenced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner an exemption from disqualification to work with children in positions of special trust. DONE AND ENTERED this 14th day of June, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 14th day of June, 1996.
Findings Of Fact Cirilo Alvarez, at all times pertinent to the allegations in the complaint, operated an adult congregate living facility in Lake City, Columbia County, Florida, Briar's Haven Adult Care Center, under license number 03-12- 0128-BPS, issued by the Florida Department of Health and Rehabilitative Services. In late July or early August, 1982, Respondent, who is a psychiatric nurse specialist and who works full time at North Florida State Mental Hospital (Hospital) at Macclenny, Florida, took Woodrow Harrison, an elderly patient at that institution, into his home, Briar's Haven Adult Care Center, on pass status from the Hospital for periodic short visits. Ultimately, on July 30, 1982, Harrison was released from Macclenny and began living full time at Respondent's facility. On August 3, 1982, Sharon Stucky, a registered nurse case manager for the North Florida Mental Health Center (Center) in Lake City, Florida, did an intake interview with Harrison, who had just been released from the Hospital and who was living at Respondent's facility. Mr. Harrison was brought into the Center by Respondent's wife. Records from the Hospital pertaining to Harrison, which came to the Center, reflected that he suffered from a seizure disorder and a diabetic condition. His medication consisted of 300 mg. of Dilantin daily and 30 mg. of phenobarbital daily, and he was to receive a daily insulin injection. At the time of his release from the Hospital, he was furnished with a thirty-day supply of these medications. On the afternoon of August 13, 1982, Mr. Alvarez went into the Center with Mr. Harrison and asked to see Ms. Stucky. Respondent indicated that Mr. Harrison was having many physical problems. Earlier in the day, he had taken Harrison back to Macclenny to have him readmitted for seizures, incontinence, etc., even though he was taking his medications, but officials at the Hospital refused to admit him. Mr. Alvarez wanted him admitted to some facility in Lake City. Stucky, indicating she would have to talk with Harrison before taking any action, did so and felt she could see no change in his condition since her first interview of him on August 3, and she decided she could not justify having him recommitted to the mental hospital. Since Stucky wanted to find out if the seizures were the result of a physical problem, and she could not do a physical herself, she requested that Respondent take Harrison to a doctor for an examination. The Respondent again demanded that Harrison be admitted and, when Ms. Stucky refused, stated he would take Harrison to the hospital and leave him. Ms. Stucky talked with her supervisor to see if there was any way that Harrison could be readmitted to Macclenny, and it was determined there was not. When the information was related to Mr. Alvarez, he departed with Mr. Harrison. Respondent then took Harrison to the emergency room at Lake City's Lake Shore Hospital. After a chart was prepared on Harrison, Alvarez departed, leaving Harrison there without his medications. When Alvarez first took Harrison in, he was told there would be an hour wait before Harrison could be seen. Alvarez asked if Harrison could sit there and wait, and the person on duty said, "Yes." Once that was arranged, Respondent left without Harrison. According to a report of the doctor on duty, Harrison was confused and incapable of giving a complaint or history. As a result, evaluation of him was difficult, and his well-being was compromised. Respondent subsequently made no effort to get Harrison's drugs to him by delivering them to Ms. Stuckv, nor did he inquire where Harrison was. Respondent's actions in dropping Mr. Harrison off at the Lake Shore Hospital unsupervised, and only calling to check on his status somewhat later, constitute an intentional abandonment which could have seriously affected Harrison's health, safety, and welfare. Somewhat later the same day, Respondent called Lake Shore Hospital to find out what Harrison's status was, but Harrison had already been placed in another adult care facility by Ms. Stucky when the hospital called her and told her of Harrison's situation. Respondent did not make any other calls. Ms. Stucky visited Harrison daily at this new facility and administered his insulin shot. He appeared to be doing well there and wanted to remain, but on August 17, 1982, he was readmitted to Macclenny, where he currently resides. Harrison is incapable of taking care of himself. He has a poor memory and is somewhat retarded and childlike, according to Stucky. He has no concept of time and could not administer his medicines to himself. He could not understand the need to take his medicine or remember to take it if he could. Since Mr. Harrison was dropped off at Lake Shore without either his medicines or a change of clothing, Stucky made several telephone calls to the Respondent to retrieve them. Mr. Alvarez was always out when she called, and Stucky talked with several different females who answered the phone and with whom she left messages requesting him to call her back. Alvarez did not return any of the calls, but he states he never received them. This is rossible since, he says, neither his mother nor his wife, two of the people at home who may have received the original calls from Stucky, speaks much English. Respondent provided Mr. Harrison with all the clothes he had except those he was wearing when he came from Macclenny. Upon the advice of individuals at Macclenny who he could not remember to identify, Respondent applied for Social Security benefits to support Harrison while he was at Respondent's facility. Because Harrison had no family, Respondent sought the counsel of the legal aid office in Lake City to see if he could be appointed Harrison's legal guardian and was told he could not. In late January or early February, 1983, Respondent received one Social Security check in the amount of $1,900 made out to Harrison and Mrs. Alvarez. This check was not cashed because Harrison was no longer with the Respondent, but was returned to the Social Security Office. Harrison's medicines that were in Respondent's possession when Harrison was taken to the hospital were discarded. Respondent worked with Harrison at Macclenny for about a year before taking him to his own facility. During that time to his knowledge, Harrison never had any seizures. Respondent gave him his medications at Macclenny and knew he needed drugs. When he took Harrison to his facility, he took Harrison's drugs as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Secretary of the Department of Health and Rehabilitative Services enter a final order revoking the Adult Congregate Living Facility License of Cirilo Alvarez, doing business as Briar's Haven Adult Care Center. RECOMMENDED this 1st day of April, 1983 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1983. COPIES FURNISHED: James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 2002 NW 13th Street, 4th Floor Gainesville, Florida 32601 Mr. Cirilo Alvarez Post Office Box 2392 Lake City, Florida 32055 Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact On an undisclosed date, respondent, Department of Health and Rehabilitative Services (HRS), gave notice, through the District 10 office in Fort Lauderdale, Florida, that it would receive bid proposals from those persons interested in providing contractual services under the intensive crisis counseling program (ICCP) to Broward County clients. Under the program HRS provides grant funds to the successful bidder who then renders mental health services to selected HRS clients in Broward County. The request for proposal (RFP) contained the specific requirements of the program but was not introduced into evidence. Two responses to the PEP were received by HRS. They were filed by petitioner, Center for Family and Child Enrichment (CFCE), and Nova University (Nova). Neither bid proposal was offered into evidence. CFCE is a non-profit corporation with offices in Miami and Opa Locka, Florida. For the two years ending June 30, 1985 it held the contract with HRS to provide intensive crisis counseling services in Broward County. A selection committee comprised of five HRS employees was formed to evaluate the two bids and to determine which organization better met the PEP's requirements. This evaluation process was conducted during a meeting on May 13, 1985. At that time the committee members rated each bidder individually and their total points were then added together. Nova ranked highest with 432 points while CFCE finished second with 307 points. There is no evidence that the committee was biased or that the review was conducted in a flawed or improper manner as alleged by CFCE. At hearing CFCE contended that it was better qualified than Nova because it submitted a lower program cost, and because it could commence operations under the contract at an earlier date than could Nova. It also contended that Nova could not meet all requirements of the contract. However the two bid proposals contained identical program costs. Moreover, even though it projected a later starting date, Nova proposed to serve 122 client families while CFCE's proposal indicated that only 51 families would be served which was less than that required by the RFP. There was no evidence that Nova could not meet the program requirements, or that CFCE submitted a superior proposal. There is also no evidence that HRS "withheld" information from CFCE during the bidding process as alleged in the request for hearing. 2/ Therefore, it is found that the contract was properly awarded to Nova.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Center for Family and Child Enrichment's request to be awarded the 1955-86 contract for intensive crisis counseling service in Broward County be DENIED, and that the contract be awarded to Nova University. DONE and ORDERED this 15th day of January, 1986, in Tallahassee, Florida. Hearings Hearings 1986. DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 15th day of January,
The Issue The issue for determination in this case is whether Petitioner should be granted an exemption from disqualification for purposes of the re-issuance of his wife's license as a family day care home operator.
Findings Of Fact In 1994, Elizabeth Rohr, wife of Petitioner, Claus Rohr, made application to the Pinellas County Licensing Board for a child day care license. Petitioner, as a family member over 12 years of age residing with the operator, was required to undergo a background screening as part of the licensure proceedings. At the time of his wife's initial application for licensure in 1994, Petitioner and his wife disclosed to the Pinellas County Licensing Board that in 1981 Petitioner had been convicted of possession of Diazepam, a controlled substance, which was a disqualifying offense. The background screening conducted by the Pinellas County Licensing Board in 1994 confirmed Petitioner's conviction of possession of Diazepam, a controlled substance in Broward County, Florida, on March 9, 1981. Due to an error in the reporting procedures from the Florida Department of Law Enforcement and the Federal Bureau of Investigation, the background screening conducted in 1994 by Respondent, Department of Children and Family Services, the successor agency to the Department of Health and Rehabilitative Services, did not reveal Petitioner's 1981 conviction for possession of a controlled substance. Subsequently, Elizabeth Rohr was mistakenly approved for a child day care license. In 1998 During a routine five-year background re- screening of Elizabeth Rohr's license, Respondent discovered Petitioner's 1981 conviction. Petitioner thereafter made application for exemption from disqualification, which as indicated above, was denied by Respondent. During the pendency of these proceedings, Petitioner's wife has retained her license on the condition that Petitioner could not be present at the times of the operation of the day care center. Respondent's denial of Petitioner's request for exemption is based not only on Petitioner's 1981 conviction for possession of Diazepam, but also on Petitioner's conduct subsequent to his 1981 conviction. Specifically, the letter of denial of exemption cites Petitioner's 1992 adjudication for driving under the influence (DUI), and Petitioner's 1997 adjudication for aggravated assault on a law enforcement officer, fleeing and eluding, reckless driving, and DUI. Petitioner is a recovering alcoholic with a history of substance abuse problems. In addition to his 1981 conviction for possession of Diazepam, law enforcement records indicate that on April 20, 1980, Petitioner was arrested for DUI, possession of marijuana, possession of drug paraphernalia, and resisting arrest. Law enforcement records further reflect that on March 14, 1981, Petitioner was arrested for disorderly conduct, and on May 5, 1981 Petitioner was arrested for DUI and driving while his license was revoked. In March of 1992 Petitioner was arrested and convicted of driving with a suspended license, and on March 22, 1992, Petitioner was arrested and incarcerated for violation of the terms of his probation in the 1981 conviction for possession of Diazepam. On December 4, 1996, Petitioner was arrested by Detective Anthony Russo of the Pinellas Park Police Department for speeding, DUI, aggravated assault on a law enforcement officer, fleeing, and eluding. Detective Russo testified at hearing that Petitioner was stopped for speeding and was observed to be intoxicated. Petitioner attempted to flee, and during the course of flight Petitioner engaged in a high-speed chase, driving without lights, and running a stop sign. At one point during this incident Petitioner made a U-turn and turned his vehicle toward Detective Russo. Petitioner entered pleas of nolo contendere to DUI, reckless driving, fleeing and eluding a law enforcement officer, and aggravated assault on a law enforcement officer. Petitioner was released from probation on these charges in July of 1998. In addition to these incidents, Petitioner was arrested on August 27, 1996, for domestic battery. This arrest arose from what Petitioner's wife described at hearing as a "dry drunk" episode during which Petitioner outwardly manifested signs of alcoholic behavior although he had not consumed any alcohol. At this time Petitioner engaged in an altercation with his seventeen-year-old daughter which escalated into a physical confrontation with his wife. During this incident Petitioner's wife feared for her children's safety and locked them in a room. With the concurrence of his wife, the charges of domestic violence against Petitioner were ultimately dismissed. Subsequent to his arrest in December 1996, Petitioner has made significant rehabilitation efforts. He has regularly attended Alcoholics Anonymous (AA) meetings and has maintained his sobriety for more than eighteen months. Petitioner has also maintained steady employment with an optical lens company and has received a raise in salary in March of 1998. Additionally, Petitioner is enrolled in a Microsoft certification program at St. Petersburg Junior College, and has received a cumulative grade point average of 3.19 on a 4.0 scale. Petitioner and his wife are active members of St. Andrews Lutheran Church and regularly participate in church youth activities. Petitioner's current AA sponsor testified that Petitioner is making progress in his twelve-step program, and she has not observed any relapses on Petitioner's part. Relapses are not uncommon in persons suffering from alcoholism, and Petitioner has experienced relapses several times during his prior attempts to cope with his substance abuse problems. As indicated above Elizabeth Rohr has been licensed, although mistakenly, to operate a child day care center beginning in 1994. There have been no complaints nor any incidents of misconduct on the part of Petitioner and his wife reported to the Respondent during that time. Christopher Witts, who has taken his daughter to Mrs. Rohr's day care center for four years, testified that he was aware of Petitioner's past problems and has no apprehension in utilizing Mrs. Rohr's day care services for his daughter, which he considers excellent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order upholding the denial of Petitioner's request for exemption at this time. DONE AND ENTERED this 22nd day of September, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1998. COPIES FURNISHED: James Deakyne, Jr., Esquire Deakyne & James 216 Mirror Lake Drive, North St. Petersburg, Florida 33701 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building Two, Room 204 Tallahassee, Florida 32399-0700
