The Issue The issue presented here concerns the jurisdiction of the Respondent State of Florida, Department of Health and Rehabilitative Services, to pass on the issue of whether the Petitioner, John Jackson, meets the definition of sex offender within the meaning of Chapter 917, Florida Statutes; it having been determined that the Department has exhausted all treatment for the Petitioner. Secondarily, this Recommended Order considers the question of whether the Petitioner can, through the process of this administrative hearing, controvert the clinical summary dated October 13, 1980, by challenging the findings of that report, even if it has been determined that the Department has exhausted all treatment for the Petitioner and the Department is without jurisdiction to enter a final order on the question of whether the Petitioner meets the definition of sex offender within the meaning of Chapter 917, Florida Statutes. Of particular interest on the secondary issue is that part of the report which indicates that the Petitioner still meets the definition of sex offender.
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the Petition and this request was received by the Division of Administrative Hearings on January 5, 1981. Specifically, the Petition asked that a Subsection 120.57(1), Florida Statutes, hearing be conducted to consider the question of whether the Respondent State of Florida, Department of Health and Rehabilitative Services has exhausted all appropriate treatment for the Petitioner John Jackson, who was enrolled in one of the Respondent's sex offender programs at Florida State Hospital, Chattahoochee, Florida. The prayer for relief offered by the Petitioner was in keeping with the language of Section 917.20, Florida Statutes (1977), which states: . . . if the department returns an offender to the court because the department has determined that it has exhausted all treatment of the offender, the court shall remove the offender from the custody of the department. A continuance of the formal hearing scheduled for January 30, 1981, was granted and the final hearing was eventually held on March 3, 1981. At the commencement of the hearing, counsel for the Petitioner promoted a substantial change to the Petitioner's claim for relief. That change was one which conceded the dispute fashioned in the details of the "Petition for Administrative Hearing," in that the Petitioner and Respondent agree that the Respondent had exhausted all appropriate treatment for the Petitioner through the programs for sex offenders offered in the State of Florida. The Petitioner then attempted to amend his Petition to request that a final order be entered by the Secretary, Department of Health and Rehabilitative Services which decided if the Petitioner continued to meet the definition of sex offender found in Chapter 917, Florida Statutes. Additionally, the Petitioner, in the person of his counsel, attempted to amend the Petition to attack the details of the staff report of October 13, 1980, dealing with the status of the Petitioner's condition with particular emphasis on the finding that Jackson continued to he a sex offender. The Respondent was opposed to the amendment on the ground of lack of jurisdiction on the part of the Respondent to consider these claims, it having been determined that the Respondent had exhausted treatment for the Petitioner and moreover, the Respondent objected to the change in the Petition which did not grant the Respondent sufficient notice to prepare to defend against the accusations. The Respondent's position was found to be meritorious and the reasons for that decision will be discussed in the Conclusions of Law section of this Recommended Order.
The Issue The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, Christopher S. Allsup, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on December 10, 1980. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until April 2, 1981, to allow Petitioner to be examined by an independent physician. In the course of the final hearing the Petitioner testified in his own behalf. The Respondent called as witnesses Alison Dowling, Staff Psychologist in the forensic service at the Florida State Hospital and Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital. Respondent's Exhibit No. 1 was admitted as evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of court and the authority of Chapter 917, Florida Statutes (1977). Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The Petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period. His condition has been diagnosed as antisocial personality. Persons who carry this diagnosis have a consistent pattern of antisocial behavior involving the violation of rights of others. In the Petitioner's case, this has lead to offenses of breaking and entering and other forms of theft, together with sexual crimes, substance abuse and fighting. In spite of the efforts at treating his condition, the Petitioner has made no significant progress and continues to be dangerous. The Petitioner has participated in group therapy, recreational therapy, vocational rehabilitation and band and music. The Petitioner has done well in recreational therapy having been interested in athletics as a young man. In addition, he has made progress in vocational rehabilitation in the typing and accounting courses which he has participated in and has shown satisfactory interest in band and music. Notwithstanding the progress in these areas, his progress in group therapy, the primary treatment modality, has not been satisfactory, and without progress in that area, his achievement in the adjunctive therapies will not lead to a satisfactory result related to his underlying diagnosis. He simply has not used the group therapy sessions as a vehicle for self discovery which is needed to identify his problems and to clarify the deficiency in his personality. In the group therapy sessions, he has presented minimal information about himself and when asked to discuss his problems, he has been guarded and occasionally hostile. Without opening up, it has been impossible to identify the reason for his sexually deviant behavior which is a symptom of his underlying difficulty. The Petitioner was referred to Alcoholics Anonymous within the Hospital unit, but he has not participated in that program in a significant way. This program would have assisted the Petitioner in view of his problem with substance abuse. In the summary of 1980, an informal staffing conference was held to discuss the Petitioner's progress and he was told that the staff did not feel that he was participating freely and that he was not discharging sufficient information to achieve progress. The Petitioner did not agree and felt that he had been doing what was necessary. In an effort to try to assist the Petitioner, the staff gave him another chance before they decided that treatment had been exhausted. In addition, an agreement was made with him in which the Petitioner was to refrain from acting out; to be more open in group therapy; to write nightly self-reports to the therapist and to learn to deal with authority figures. The effort by staff to assist the Petitioner in achieving progress was not successful and on November 18, 1980, in the formal staff session, it was determined that the staff had exhausted all available treatment for the patient. It was also determined that he still met the definition of sex offender. (It should be noted that some attempts have been made to deal with the patient through individual therapy, but this form of treatment is not the most beneficial approach with a person who has an antisocial personality and who tends to be manipulative with his therapist.) On January 26, 1981, the Petitioner was presented to a screening committee constituted of the program administrators in the various sex offender programs within the State of Florida, and it was the determination of those individuals that treatment had been exhausted for the Petitioner in any program that might be available in the State of Florida. In summary, although the Petitioner has made improvement, it is not sufficient enough to cause the Respondent to continue to exert effort in remedying his problems. He continues to be guarded and withdrawn and to impart little information about himself. The Petitioner feels that in his twenty-six (26) months stay in the program, that he has made progress in the area of impulse control and judgment and accepting authority figures and acting more responsibly. He feels that he used to be "hot tempered" and easily intimidated and involved in lots of fights. In this program he has been in only one fight. If allowed to remain, the Petitioner says he could improve and could work in the future, notwithstanding, problems being open around others and a tendency to hesitate in dealing with others. He feels that he has accepted the responsibility for his criminal act and is not proud of it and is in fact ashamed of what he has done and could control himself in the future. His feeling of guilt has slightly placed a burden on his discussing the problem, according to the Petitioner. As he states it, he can relate to the group what happened, he can not relate why he did the act. Finally, the Petitioner says that the group sessions have been beneficial and although he has not "put" his "all in it" he has progressed.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is, hereby, RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Christopher S. Allsup, and that said Christopher S. Allsup be returned to the committing court for further disposition. DONE and ENTERED this 14th day of April, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1981. COPIES FURNISHED: David T. Young, Esquire Post Office Box 563 Rockledge, Florida 39255 Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue The issue in this case is whether Fort Myers Broadcasting Company (FMBC or Respondent) committed an unlawful employment practice against Jaziah Rivera (Ms. Rivera or Petitioner) on the basis of her sex and in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact FMBC operates in an office building located at 2824 Palm Beach Boulevard, Fort Myers, Florida. For at least 20 years prior to September 2018, FMBC outsourced its cleaning needs. In or around August 2018, a management team at FMBC met to discuss its custodial services. The team included Joseph Schwartzel, Jim Schwartzel, Mark Gilson (Mr. Gilson), and Mr. Mayne. Joseph Schwartzel is the general manager of FMBC, and has served in that role for approximately 25 years. Jim Schwartzel, Mr. Gilson, and Mr. Mayne are all senior managers who report directly to Joseph Schwartzel. After the discussion, the management team decided to terminate FMBC’s contract for outside custodial services and hire an in-house custodian. General Manager Joseph Schwartzel was the final decision maker on this matter. In September 2018, FMBC hired Ms. Rivera as a full-time custodial worker. Ms. Rivera was the first in-house custodian hired by FMBC in its history. Her job duties included generalized cleaning like sweeping, mopping, taking out the trash, dusting, restocking supplies in the bathrooms, and vacuuming. Ms. Rivera reported directly to Mr. Mayne, who served as FMBC’s Chief Engineer. During Ms. Rivera’s entire time at FMBC, Mr. Mayne was her direct supervisor. Ms. Rivera’s weekly scheduled hours were Monday through Friday, 9:00 a.m. to 6:00 p.m. She sometimes altered those hours and worked from 10:00 a.m. to 7:00 p.m. Ms. Rivera testified that she would sometimes work “after hours or on the weekend” if she had to make up missed time. FMBC received complaints from employees that some areas at FMBC were not being stocked/cleaned properly or in a timely fashion. Mr. Mayne spoke to Ms. Rivera about the complaints. Ms. Rivera complained to Mr. Mayne that the amount of cleaning she was required to complete was too much for one person and that she needed assistance. In or around December 2018, FMBC hired an in-house, part-time custodial worker to assist Ms. Rivera with the cleaning duties. The part-time custodian was quickly relieved of her duties, because she proved to be unreliable. In April 2019, Ms. Rivera complained that she was experiencing back pain and was unable to take out the trash. She provided FMBC with a doctor’s note which stated that she was not allowed to lift items that weighed more than 15 pounds. FMBC proposed several accommodations to assist Ms. Rivera in taking out the trash, including providing a rolling bin to push the trash to the dumpster. On several occasions, Mr. Mayne also provided two to three non- custodial employees, from the engineering department, to assist Ms. Rivera with taking out the trash. In April 2019, FMBC hired another part-time employee, Imari Porter (Ms. Porter), to help Ms. Rivera with the cleaning duties. Ms. Porter is Ms. Rivera’s sister. In April 2019, FMBC’s upper management team—Joseph Schwartzel, Jim Schwartzel, Mr. Gilson, and Mr. Mayne—met several times over a two- week period to discuss its custodial needs. The team made the decision to eliminate the full-time and part-time in-house custodian positions and return to outsourcing the custodial services. As the general manager, Joseph Schwartzel was, again, the final decision maker. Joseph Schwartzel testified about the reasoning behind FMBC’s decision to move back to its out-sourced custodial services model. He stated as follows: Well, basically, I think, we discovered that we had made a mistake trying to have an in-house custodial position. We thought it was a good idea to begin with as we could have someone work during the day when most the employees were there and provide cleaning services while people were at the office. And if there were spills or things like that, there would be someone immediately available to try and remedy the situation. So it sounded good. What we didn’t realize is how difficult it would be to cover if someone wasn’t there. If they were out sick, if they were on vacation, things of that nature. In Ms. Rivera’s case, where she had a health issue, all of a sudden we were scrambling, trying to figure out how to get the facility cleaned. And we didn’t have anyone else that could do that on the long- term basis. So it became very problematic. Thus, instead of, you know, having an in-house custodial position, we elected to go back to a third party to do it. On April 22, 2019, FMBC terminated Ms. Porter, less than one month after hiring her. The next day, on April 23, 2019, Mr. Mayne and Karen Seiferth (FMBC’s human resources manager) met with Ms. Rivera. Mr. Mayne terminated Ms. Rivera. FMBC immediately returned to its past arrangement of outsourcing its cleaning needs—on April 23, 2019, the same day Ms. Rivera was terminated, FMBC signed a contract with ABC International Cleaning Service. As of the date of the final hearing, FMBC continued to outsource its cleaning and still contracts with ABC International Cleaning Service. Sexual Harassment Allegations Ms. Rivera testified that Mr. Mayne sexually harassed her during her entire period of employment with FMBC. Ms. Rivera testified that Mr. Mayne subjected her to sexual harassment in the following ways: by staring at Ms. Rivera and looking at her body parts, as if he was “undressing [her] with his eyes”; brushing past her on one occasion, causing his leg to “graze” her buttocks; and making comments about her khaki pants and her buttocks being “big.” Ms. Rivera also testified that Mr. Mayne frequently asked her “to go out for drinks” and that she perceived those invitations as sexual advances. Ms. Rivera testified that she rejected Mr. Mayne’s advances, but did not complain about his behavior to anyone at FMBC. Ms. Rivera alleges that she was terminated for refusing to engage in a sexual relationship with Mr. Mayne. Ms. Rivera claims that after she was fired, Mr. Mayne sent her inappropriate sexual messages, pictures, and a video through social media. It is undisputed that, to the extent this claim is true, it happened well after Ms. Rivera was terminated from FMBC. Ms. Rivera submitted a Technical Assistance Questionnaire (TAQ), dated April 9, 2020, to FCHR, which initiated an investigation into her complaints against FMBC. In the TAQ, Ms. Rivera set out the events that occurred during her time at FMBC that she believed to be discriminatory. The majority of Ms. Rivera’s complaint was based on what appears to be allegations of disability discrimination. The only mention of sexual harassment was at the conclusion of her statement. Therein, she stated: “Now present day Mike Mayne is harrassing me by pursuing me thru social media planforms, sending inappropriate images (private part) to try to get me to engage is some type of sexual relationship & offering support to me.” (errors in original). Ms. Rivera’s allegations that Mr. Mayne was sexually harassing her through social media were described as occurring “now” in the “present day,” which, at that time, would have been nearly a year after she was terminated from FMBC. Ultimate Findings of Fact Ms. Rivera’s testimony that Mr. Mayne sexually harassed her while she worked at FMBC is not credible. Ms. Rivera failed to prove that Mr. Mayne sexually harassed her at work, that she was subjected to a hostile work environment, or that she was terminated for not acquiescing to quid pro quo sexual harassment. Accordingly, Ms. Rivera failed to meet her burden of proving that FMBC committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Ms. Rivera’s Petition for Relief. DONE AND ENTERED this 10th day of May, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Zandro E. Palma, Esquire Zandro E. Palma, P.A. Suite 1500 9100 South Dadeland Boulevard Miami, Florida 33156 Suzanne M. Boy, Esquire Boy Agnew Potanovic, PLLC 4415 Metro Parkway, Suite 110 Fort Myers, Florida 33916-9408 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, or sex in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, as a nursing assistant at the community healthcare facility known as Jackson Hospital in Marianna, Florida, at all times relevant to these proceedings. Petitioner obtained his designation as a Certified Nursing Assistant (CNA) subsequent to his employment by Respondent. Petitioner entered into a conversation with a female co-worker and CNA at Jackson Hospital on or about June 12, 2003. In the course of the conversation, he made an unwelcome sexual request of the co-worker. Petitioner was not on duty at the time and had returned to the hospital for other reasons. Subsequently, on June 12, 2003, the female co-worker filed a complaint with Respondent's human resource office at the hospital alleging unwelcome requests for sexual favors by Petitioner, inclusive of a request that the co-worker engage in sexual relations with Petitioner. In the course of his employment with Respondent, Petitioner was made aware of the strict guidelines and "zero tolerance" policy of Respondent toward sexual harassment. Respondent's policy expressly prohibits sexual advances and requests for sexual favors by employees. Discipline for a violation of this policy ranges from reprimand to discharge from employment of the offending employee. Petitioner has received a copy of the policy previously and he knew that violation of that policy could result in dismissal of an erring employee. Violations of this policy resulted in dismissal of a non- minority employee in the past. Corroboration of Petitioner’s policy violation resulted from interviews with other employees in the course of investigation by the hospital director of human resources. Further, in the course of being interviewed by the director, Petitioner admitted he had propositioned his co-worker for sexual favors. As a result of this policy violation, Respondent terminated Petitioner’s employment on June 16, 2003. At final hearing, Petitioner admitted the violation of Respondent's policy, but contended that termination of employment had not been effected for white employees for similar offenses in the past. This allegation was specifically rebutted through testimony of Respondent's hospital human resources director that a white male employee had been previously discharged for the same offense. Accordingly, allegations of Petitioner of dissimilar treatment of employees on a racial basis for violation of Respondent's policy are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ORDERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 13th day of September, 2005. COPIES FURNISHED: James M. Bowles 4193 Evelyn Street Marianna, Florida 32446 H. Matthew Fuqua, Esquire Bondurant and Fuqua, P.A. Post Office Box 1508 Marianna, Florida 32447 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue At issue is whether Jeffrey Alshin is subject to discipline for violation of Section 490.009(2)(k), Florida Statutes (1983), by committing an act upon a client which would constitute sexual battery or sexual misconduct as defined in Section 490.0111, Florida Statutes (1983). Sexual misconduct in the practice of mental health counseling is prohibited by Section 490.0111, Florida Statutes (1983); that statute states that sexual misconduct shall be defined by rule. According to the Administrative Complaint, Rule 21U-15.04, Florida Administrative Code, defines sexual misconduct. The Administrative Complaint also alleges a violation of Section 490.009(2)(s), Florida Statutes (1983), for failing to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance. The factual basis for these various grounds for discipline is alleged to have been engaging in sexual activity with a client during the period March, 1984, through July 1984, when a counselor-client relationship existed with the client.
Findings Of Fact The Respondent, Jeffrey R. Alshin, is a mental health counselor who has been licensed by the State of Florida during the times material to the allegations made in the Administrative Complaint. The client with whom Alshin is accused of sexual involvement, J.S., was referred to him by a Dr. Lemberg, who saw J.S. on March 1, 1984 (Tr. 24). J.S. telephoned Alshin's office and made an appointment to see him on Monday, March 5, 1984 (Tr. 24). On March 5, 1984, J.S. went to Alshin's office for a therapy session and met Alshin for the first time. She had another session with him on March 9, 1984 (Tr. 24-25). From March 5, 1984 a counselor-client relationship existed between Alshin and J.S. (Tr. 82). On the morning of Sunday, March 11, 1986, Alshin invited J.S. to his home for a barbecue (Tr. 26). After the barbecue, Alshin and J.S. went to Respondent's apartment and that evening they engaged in sexual intercourse (Tr. 27-28). Alshin engaged in sexual intercourse with his client on five other occasions between March and June, 1984 (Tr. 29). During the period in which Alshin and J.S. were sexually involved, Alshin was counseling J.S. (Tr. 28-29). Alshin was never married to J.S. Expert testimony submitted at the hearing establishes that for a mental health counselor to have a sexual relationship with a client is conduct which falls below the minimum standards of performance in professional activities for a mental health counselor when measured against prevailing peer performance (Tr. 80).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Secretary of the Department of Professional Regulation finding the Respondent guilty of a violation of Sections 490.009(2)(q) and (s), Florida Statutes (1983), and that his license as a mental health counselor be REVOKED. DONE AND ORDERED this 10th day of November, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1986.
The Issue The issue presented by this case is whether the Respondent, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Frank J. Lugo, Jr., through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977). The parties have submitted Proposed Recommended Orders. Those proposed findings not included in this Recommended Order were not supported by competent and substantial evidence or were considered immaterial to the results reached.
Findings Of Fact On January 19, 1981, the Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Department requested the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes, to consider the matters set forth in the Petition. At the final hearing the Petitioner testified on his own behalf. Dr. Robert Berland, Ph.D., a psychologist and the Director of the Behavior Disorders Unit in the Forensic Service at the Florida State Hospital testified for the Respondent. Respondent's Exhibit 1, a composite exhibit consisting of a clinical summary, intradepartmental staffing report and an abstract of a staff conference, was admitted as evidence. At all times pertinent to this proceeding the Petitioner has been in the custody of the Respondent pursuant to an order of the Circuit Court of Pinellas County, Florida and Chapter 917, Florida Statutes (1977). From August 6, 1979 through the present, Petitioner has resided in the Florida State Hospital in Chattahoochee, Florida, where he has undergone treatment in a hospital program for mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. The success rate within the program is very low due to patients' long established behavior patterns. Although the Petitioner has progressed during the course of his treatment, the Department has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is participating and has also concluded that similar programs for sex offenders within the state do not offer viable treatment alteratives. The primary treatment modality for mentally disordered sex offenders at Florida State Hospital is group therapy. The Petitioner has participated in group therapy sessions during his current hospitalization, but no significant change in his behavior has occurred. Dr. Berland has diagnosed his present condition as (1) exhibitionism, (2) voyeurism, (3) other sexual deviations, (4) mixed substance abuse, (5) psychogenic pain disorder, (6) anti-social personality, (7) passive-aggressive personality with contained hostility, and (8) narcissism. Exhibitionism has been the Petitioner's primary problem with his first arrest for indecent exposure occurring in 1971. Group and milieu therapy are the basic treatments available in the sex offender program at Florida State Hospital. Milieu therapy consists of interacting with people who share similar problems. Petitioner has participated in both therapies since his admission to the hospital. From August, 1979 to January, 1980, Mr. Lugo regularly attended group therapy and participated in the group. He developed a degree of insight into his condition. During this period, the group was led by Sam Cuningham, a psychologist, and met for one hour each week. From February, 1980, to August, 1980, Petitioner regularly attended group but did not actively participate. Dr. Berland became head of the group and its size increased from five to ten members. When Mr. Lugo participated, his discussions centered on other patients' problems rather than his own. Although there is a benefit in listening and discussing other patients problems such benefit is not substantial when coupled with a denial of a patient's own problem as was the case with Mr. Lugo. One of the reasons given by Mr. Lugo for not participating was a CERonic sore throat. After Dr. Berland had the Petitioner examined by a physician who could find no medical basis for the problem, it was concluded by Dr. Berland that the disorder was psychogenic. During this period the Petitioner joined another group started by psychology interns at Florida State University which offered individual counseling in addition to group therapy. This group lasted for approximately two months. On August 6, 1980, Mr. Lugo was presented for staffing by his treatment team. He was informed that his group participation was inadequate and given three areas where improvements was necessary: (1) analysis of and solution to sexual problems, (2) anti-social, manipulative and rule-violating behavior, and (3) hostility in interactions with others. During the period September, 1980, to October, 1980, the Petitioner's behavior did not significantly change. Although he did attempt to cooperate by complaining less about his physical problems and changing his manner of dress, Petitioner's participation during group therapy remained superficial. After being informed by staff that his group participation remained inadequate, Mr. Lugo began writing summaries of his group experiences. He continued to write summaries after being informed by the staff that he should discuss experiences with the group rather than write summaries. During September to October, 1980, Mr. Lugo's attendance at group therapy was erratic. On October 29, 1980, the treatment team met and after reviewing the Petitioner's case, concluded that Mr. Lugo continued to meet the criteria of a sex offender under Chapter 917, Florida Statutes, and that he was not amenable to further treatment in the behavior disorder unit. Having exhausted Florida State Hospital's treatment capabilities, the staff recommended that the patient be presented to an Intra-Departmental Screening Committee to determine if further treatment capabilities existed within any other sex offender treatment programs in the Department. On December 24, 1980, the Committee considered Mr. Lugo's case and recommended that he be returned to the appropriate Circuit Court as a treatment failure. Petitioner has progressed in areas outside of group therapy including ward activities and vocational training. However, his involvement in these areas is insufficient to cause a meaningful alteration of Petitioner's aberrant behavior. Although individual therapy is available for patients such as the Petitioner, it was not attempted in this case because Mr. Lugo never achieved a level of progress necessary to make such therapy feasible. The Petitioner desires to remain in the program at Florida State Hospital and be given individual therapy and assignment to a different treatment team.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Frank J. Lugo, Jr., and that the said Frank J. Lugo, Jr. be returned to the committing court for further disposition. DONE and ENTERED this 26th day of June, 1981, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1981. COPIES FURNISHED: Steven L. Seliger, Esquire Post Office Box 324 Quincy, Florida 32351 Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
Findings Of Fact At all times pertinent to this proceeding, Respondent held Class "D" Security Officer License Number D00-26960 and Class "DI" Security Officer Instructor License Number DI89-00304. Both licenses were duly issued by Petitioner pursuant to the provisions of Chapter 493, Florida Statutes. Respondent has held his Class "D" license since 1976 and has held his Class "DI" license since 1989. Respondent has no previous record of a felony or misdemeanor offense and was, at the time of the formal hearing, working at an adult community condominium complex as a security guard. Officer Charles Wharton is a detective with the Fort Pierce Police Department who was, at the times pertinent to this proceeding, assigned to the juvenile division. T.G. is a female who was eleven years of age as of July 1993. F.S. 1/ is a female who was fourteen years of age as of July 1993. Both F.S. and T.G. were described by Officer Wharton as appearing their stated ages. Both of these girls were from what Officer Wharton referred to as "Fort Pierce's ghetto" and both were described by Officer Wharton as being "street wise". On or about July 1, 1993, Respondent paid T.G. and F.S. to have sexual relations with him at his house in Fort Pierce. The sex with F.S. included the penetration of her vagina with his penis. The sex with T.G. included her having oral contact with his penis. Officer Wharton questioned Respondent and read to him his Miranda rights. Respondent waived his Miranda rights and admitted to Officer Wharton that he had paid these two girls to have sex with him as described above. Officer Wharton referred this matter to the State Attorney's Office, which subsequently dismissed all charges against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and the conclusions of law contained herein, imposes an administrative fine in the amount of $1,000, suspends Respondent's licensure for a period of three months, and thereafter places Respondent's licensure on probation for a period of one year. DONE AND ENTERED this 10th day of November, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1994.
The Issue The issue for consideration in this hearing is whether Respondent’s license as a psychologist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein the Board of Psychology was the state agency in Florida responsible for the licensing and professional discipline of psychologists in Florida. Respondent is and has been licensed as a psychologist in Florida and is subject to the jurisdiction of the Board of Psychology. During the period April 11, 1995, through August 7, 1995, Respondent was employed as a psychologist at the University of South Florida Counseling Center for Human Development. In that capacity, Respondent saw the Complainant, K.R., on several occasions and established a psychologist-client relationship with her. At the initial visit of K.R. to his office, Respondent conducted an initial intake evaluation of her and, in his client notes, defined the goal of his continued treatment of her as being to assist Ms. K.R. in stabilizing her depression; and to clarify her needs and patterns with regard to her career and relationships. Upon completing the intake evaluation of K.R., Respondent referred her to himself as treating therapist, and between the initial meeting and the end of August 1995, met with her approximately thirteen times. Review of Respondent’s notes regarding his sessions with K.R. reveals that they discussed her relationship with her parents; her relationships with men; her ability to deal with her emotions, her anxiety, and depression. K.R. relates that during many of their sessions, Respondent told her she had nice legs and was very sexy. He also told her of his personal life, including his dissatisfaction with his marriage, and it appears that he met with her outside his professional office on a purely social basis. K.R. claims Respondent told her not to tell anyone about their friendship outside the clinic. The relationship between Respondent and K.R. culminated in their engaging in sexual intercourse which resulted in her becoming pregnant. The pregnancy was subsequently aborted. As a result of their relationship, K.R. filed a complaint against Respondent with the Board of Psychology relating the sexual nature of their relationship. Subsequent to the filing of K.R.’s complaint against Respondent, and the Agency For Health Care Administration’s (Agency) filing of an Administrative Complaint against him, the Agency deposed Dr. George J. Rockwell, Jr., a retired psychologist with a specialty in school psychology. Dr. Rockwell did not meet with Respondent or speak with him in any capacity. He examined the file collected in this case regarding the allegations against Respondent, and from his review of all the material, concluded that Respondent had established a psychologist/patient relationship with K.R. This relationship involves trust and the generation in the patient of a basic belief that the psychologist has the skills and knowledge that would assist the patient in dealing with whatever problems he or she has. The patient develops the ability to talk to a non- critical, non-judgmental person in an effort to help him or her deal with their problems or concerns. The psychologist has the responsibility to create an emotionally safe environment for the patient. In this process the patient is often made vulnerable. The patient must be open with the psychologist and feel comfortable in sharing emotions and incidents which he or she would most likely not be able to share with others. It is without question a special relationship, and in Dr. Rockwell’s opinion, it is unlikely that a patient will work with a psychologist and not form that special relationship. This special relationship places upon the psychologist special responsibilities toward the patient. These include abiding by the laws and rules relating to the practice of psychology; having respect for the patient; and keeping all matters confided by the patient confidential. In addition, the psychologist has the responsibility to comport himself or herself in a manner so as to maintain a professional relationship and distance with the patient. Specifically, sexual relationships between a psychologist and his or her patient are normally prohibited as being beyond boundaries that should not be crossed. It is the psychologist’s responsibility to set the limits on behavior so as to prevent an inappropriate relationship from developing. This applies even if the patient initiates sexual advances. These advances would not excuse the psychologist from professional responsibility toward the patient. In the event the psychologist detects what appear to be inappropriate sexual advances from the patient, the psychologist had a duty to discuss this with the patient; talk about the nature of the psychologist/patient relationship; and explain that such a relationship would not be appropriate. The constrictors on the professional are even more specific in the event the psychologist finds himself or herself sexually attracted to the patient. Under no circumstances should the professional act on those feelings, but should evaluate the situation to ensure that those feelings are in no way interfering with the therapeutic relationship. There is absolutely no situation which Dr. Rockwell can think of in which it would be appropriate for a therapist to engage in sexual relations with a patient, either during or after termination of a therapy session. Inappropriate sexual contact between a therapist and a patient can have severe and deleterious effects on a patient. These might include feelings of guilt and depression, based on the patient’s belief that the inappropriate behavior was his or her fault. The patient might also feel embarrassment and be reluctant to undergo further treatment. Further, the patient would most likely lose trust in the involved therapist and potential other therapists. Dr. Rockwell concluded that notwithstanding Respondent’s contention that he saw K.R. solely for the purpose of career counseling, and at no time entered a psychologist/patient relationship with her, Respondent’s clinical notes regarding K.R. clearly indicate a professional psychologist/patient relationship was formed. An independent review of the records supports that conclusion, and it is so found. Even were the counseling limited solely to career counseling, it would still constitute counseling, the conduct of which is covered by the standards of the profession. Here, however, Dr. Rockwell is convinced that Respondent’s conduct toward K.R., as alleged, constituted sexual misconduct in the practice of psychological counseling which fell below the minimum standards of performance and professional activities when measured against generally prevailing peer performance. It is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Psychology enter a final order in this matter finding Respondent guilty of all Counts in the Administrative Complaint, and revoking his license to practice psychology in the State of Florida. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 3rd day of March, 2000. COPIES FURNISHED: Maureen L. Holz, Esquire Williams & Holz, P.A. 211 East Virginia Street Tallahassee, Florida 32301 O. C. Allen, Qualified Representative 314 West Jefferson Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Kaye Howerton, Executive Director Board of Psychology 1940 North Monroe Street Tallahassee, Florida 32399-0750 Amy M. Jones, Acting General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
The Issue The issue is whether Respondent engaged in an unlawful employment practice in violation of Section 760.10, Florida Statutes (2009),1 by discriminating against Petitioner based on her gender and by allowing her to be sexually harassed.
Findings Of Fact Respondent is a for-profit Florida corporation owned by Robert J. Morrisseau, Sr. Even though he was Respondent's president, Mr. Morrisseau, Sr., was not usually involved in the company's day-to-day operations. Robert J. Morrisseau, Jr., is Respondent's vice- president. Mr. Morrisseau, Jr., was primarily responsible for the company's operation. He also served as crew supervisor. Most of Respondent's work, which involved installing carpeting and tile in commercial facilities, was performed in locations that required the work crew to travel. Respondent's crew often had to stay in motels. Respondent contracted with an employee leasing company to handle Respondent's payroll and workers' compensation administration. All employees filled out an application provided by the employee leasing company, but Respondent made all hiring and firing decisions. Respondent did not give its employees information regarding Respondent's human resource policies and procedures. Employees were not told what to do when they believed someone in the company was discriminating against them. Petitioner is a female who dated Mr. Morrisseau, Jr., in the fall of 2008. While they were dating, Mr. Morrisseau, Jr., told Petitioner he would give her a job and teach her to lay tile. Petitioner and Mr. Morrisseau, Jr., stopped dating in December 2008. However, Mr. Morrisseau, Jr., made good on his promise to Petitioner, hiring her as a laborer on January 26, 2009. In January 2009, Mr. Morrisseau, Jr., wanted to reestablish a personal relationship with Petitioner. Mr. Morrisseau, Jr., hoped giving Petitioner a job would facilitate that goal. Petitioner was thankful for the job, but she did not want to date Mr. Morrisseau, Jr., again. At all times material here, Mr. Morrisseau, Jr., was Petitioner's supervisor. He also employed and supervised Petitioner's sister and her boyfriend and Petitioner's daughter and her boyfriend. Off and on in January 2009 through March 2009, Mr. Morrisseau, Jr., supervised a crew laying carpet and tile in Spanish Fort, Alabama. Petitioner and Petitioner's daughter and sister and their boyfriends were also part of the crew on at least two trips to Alabama. Mr. Morrisseau, Jr., rented three motel rooms for the Alabama job. He took one room with one bed. The other two rooms had two beds. On one occasion, Mr. Morrisseau, Jr., told Petitioner she could sleep in the room with him or with her sister and the sister's boyfriend or the other male employees. On another occasion, Mr. Morrisseau, Jr., told Petitioner she could sleep with her daughter and her daughter's boyfriend or the other male employees. On both occasions, Petitioner chose to sleep on the extra bed in a room with one of the couples. Mr. Morrisseau, Jr., never threatened Petitioner, directly or indirectly, with consequences if she did not choose to stay in his room. There is no evidence that Petitioner felt Mr. Morrisseau, Jr., was giving her a quid pro quo choice. Petitioner's job responsibilities included driving company vehicles, preparing floors for tile, and learning to lay tile. She was not expected to carry 40-foot rolls of carpet or to carry heavy loads of tile up three flights of stairs. However, Petitioner was willing to help any way she could. One time in Alabama, Petitioner and her daughter were on their knees, preparing a floor for tile. Mr. Morrisseau, Jr., took pictures of the women from the back and made a comment about the daughter's backside, stating it was as big as a man's. Respondent also had a job in Daytona Beach, Florida. Petitioner was part of the crew that worked in Daytona Beach, along with Mr. Morrisseau, Jr., and several male employees during the weeks of February 27, 2009, and March 2, 2009. Once again, Mr. Morrisseau, Jr., rented three motel rooms. He gave Petitioner the option of staying in the room with him or with the other men. Mr. Morrisseau, Jr., did not think anything of asking Petitioner if she wanted to stay in the room with him because he and Petitioner had stayed in the same hotel room previously on other occasions. During the weeks of February 27, 2009, and March 2, 2009, Petitioner elected to stay in the room with her co-workers rather than in the room with Mr. Morrisseau, Jr. There is no evidence that Petitioner believed Mr. Morrisseau, Jr., was giving her a quid pro quo choice. On one trip to Daytona Beach, Florida, Mr. Morrisseau, Jr., and another male employee bought cocaine and brought it back to the motel. Petitioner does not deny that she used some of the cocaine that night. The next morning, the crew, including Petitioner, went back to work at 7:30 a.m. On March 11, 2009, Respondent fired Petitioner. During the hearing, Mr. Morrisseau, Jr., testified that he did not fire Petitioner because she used drugs in Daytona Beach. This testimony is contrary to a statement made by Mr. Morrisseau, Sr., in an e-mail dated December 7, 2009. During the hearing, Mr. Morrisseau, Jr., testified that Petitioner was not fired because she was a woman and inadequate to perform the work. However, Petitioner and other employees heard Mr. Morrisseau, Sr., and Mr. Morrisseau, Jr., state that Petitioner and her daughter, as females, were inadequate for the job and/or that women did not need to work out of town. According to Mr. Morrisseau, Jr., he fired Petitioner because, after returning from Daytona Beach, Petitioner's work was not satisfactory. He claims that she failed to report for work because she was using illegal drugs with her boyfriend. He also claims that Petitioner was fighting with other employees, referring to an alleged altercation between Petitioner and her daughter. Mr. Morrisseau, Jr., admitted during the hearing that he had no first-hand knowledge that Petitioner continued to use drugs after returning from Daytona Beach. He did not see Petitioner fighting with other employees. Mr. Morrisseau, Sr., testified at hearing that he had no issue with Petitioner's work the one weekend he went to the Alabama job. According to Mr. Morrisseau, Sr., Petitioner "worked her little tail off" that weekend. The reason Mr. Morrisseau, Jr., gave for terminating Petitioner's employment is not credible. The most persuasive evidence indicates that Mr. Morrisseau, Jr., terminated Petitioner's employment because she was a woman and, in his opinion, inadequate to do the job. Respondent also fired Petitioner's daughter on March 11, 2009. However, Respondent rehired the daughter on March 20, 2009. The daughter worked for Respondent until the company went out of business in June 2009. The jobs in Alabama and Florida were not done properly. Mr. Morrisseau, Sr., had to bring in another company to redo and complete at least five jobs. Mr. Morrisseau, Sr., closed down the business and let all employees go in June 2009. Petitioner was unemployed from March 11, 2009, through January 1, 2010. She is entitled to lost wages for that period of time. However, Petitioner failed to present any evidence regarding the amount of lost wages during the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order, directing Respondent to cease violating Section 760.10, Florida Statutes. DONE AND ENTERED this 16th day of June, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2010.
