The Issue Whether Rule 33-5.006(8), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Darryl James McGlamry, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing inmate visitation and all other aspects of the operation of the prison system in Florida. Rule 33-5.006(8), Florida Administrative Code. Rule 33-5.006(8), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), provides: Inmates not married may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified and the spouse is removed from the list. [Emphasis added]. The Petitioner, a married male inmate, has made requests to have females, by whom he has had children and who have custody of those children, placed on his visiting list. The females by whom the Petitioner has children are his current wife, his former wife and a girlfriend. Those requests have been denied by the Respondent. The Petitioner has attempted to add his former girlfriend and his former mother-in-law to his visiting list. His former wife and all of his children are currently on his visiting list. His current wife was not on his visitor list because she was also incarcerated at the time of the final hearing. The Petitioner has suggested that he has been denied visitation with his children by his former wife and his current wife that he is unable to see because of his inability to have more than one female visitor. The Petitioner's former girl friend was offered a special visitor's pass which was limited to week days but, due to her employment, did not visit the Petitioner. Although the evidence proved that the application of the Challenged Rule to the Petitioner and the Petitioner's circumstances make it difficult for the Petitioner to have visitation with some of his children, the evidence failed to prove that the Challenged Rule itself bars married inmates from having visitation with minor children from other marriages or relationships. The Respondent promulgated the Challenged Rule to limit the number of female visitors a married inmate may have for the following reasons: Male inmates tend to request visitation from more females than males. Due to limited space for visitation, the increasing number of inmates at every institution and the burden placed on the staff of the correctional institutions to handle visitation, the number of visitors had to be limited. Each visitor has to have a local law enforcement background check and each visitor must be checked by staff before visitation. Visitation is generally allowed between 9 and 3 on visiting days but visitors may all show up at essentially the same time. There is limited staff to handle the checking of visitors and the supervision of the visitation area.
Findings Of Fact The Petitioner, Darryl James McGlamry, is an inmate under the supervision of the Respondent. The Petitioner is incarcerated at Dade Correctional Institution. The Respondent is the Department of Corrections, an agency of the State of Florida. The Petitioner has challenged Rule 33-5.006(8), Florida Administrative Code. The Challenged Rule governs the visitation privileges of unmarried inmates. The Petitioner has alleged that the Challenged Rule "impairs the Petitioner's substantial interest in that it restricts the Petitioner's First Amendment Right of Freedom of Association, as it substantially limits the number of female visitors that the Petitioner may have." The Petitioner has also alleged that the Challenged Rule is invalid because the restriction on visitation of the Challenged Rule is: . . . contrary to the Civil Rights Act of Florida, Chapter 760.01, Florida Statutes. 11. As such, it is an "invalid exercise of delegated legislative authority". The Respondent does not have the authority to pass rules that are contrary to other statutes. This amounts to vesting unbridled discretion to the agency in violation of Section 120.52(8)(d), Florida Statutes. The Amended Petition is devoid of any alleged facts which, if proven, would support a determination that the Challenged Rule is invalid under Section 120.56, Florida Statutes.
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 Whether the Petitioner has presented clear and convincing evidence that he is of good moral character so as to receive an exemption from disqualification from employment with children or adults who are developmentally disabled, under Section 397.451, Florida Statutes (1995).
Findings Of Fact Petitioner seeks an exemption for employment in a position of special trust for which a security background check is required under Florida law. In 1977, Petitioner pled nolo contendere to a misdemeanor sexual assault for fondling an adolescent. He was sentenced to probation. Petitioner was 22 years old at the time. In 1986, Petitioner pled guilty to a felony sexual assault of a 15 year old boy, in the state of New Hampshire. Petitioner was 31 years old at the time. After serving 2 years of a 3~ to 7 year sentence, Petitioner was released from prison in 1989. Petitioner successfully completed parole and was released in March, 1993. Petitioner has not been arrested for any crime since 1986. Petitioner stated he received therapy in prison in a sexual offender program. However, Petitioner presented no evidence of attending a sexual offender program while in prison or afterwards, nor did he submit records of his treatment while in prison. Petitioner explained the circumstances surrounding the 1986 conviction for sexual assault. While working as an athletic trainer, Petitioner took advantage of a situation while he was performing massage therapy on a fifteen year old boy, he fondled and performed oral sex on the boy. Petitioner stated the victim consented, as much as a 15 year old can consent. Petitioner did not explain the circumstances surrounding the 1977 incident. Petitioner did not express remorse for any sexual misconduct that he committed other than the 1986 offense. He addressed his 1977 charge only to say that had he received more than a slap on the wrist, the 1986 sexual assault might not have occurred. Petitioner stated he was sexually abused as a child. In 1993, Petitioner received a Masters Degree in social work from Salem State College in Massachusetts. Petitioner explained he studied for his masters in social work because he would no longer be eligible for licensure as an athletic trainer. Petitioner stated it would not be appropriate for him to put his hands on adults or children, which is necessary as an athletic trainer. He feels it wouldn't be appropriate for him to be in a position where he could possibly be aroused by an adult, an adolescent or a child. Although Petitioner states he has never been aroused or interested in anyone other than what would be considered a mature adolescent or an adult. Petitioner is licensed as an independent clinical social worker in the Commonwealth of Massachusetts. In 1994, Petitioner moved to Florida to work for the Indian River Memorial Hospital in Vero Beach in the psychiatric unit of the Center for Emotional and Behavioral Health. Petitioner has been denied a license as a clinical social worker in Florida based on his history of sexual misconduct. As a result of his denial of a license, Petitioner must perform his duties under the supervision of another licensed clinical social worker. Working under someone else's supervision means he may continue to work with clients in group or individual therapy. Kathy Palezuelos, a licensed clinical social worker, has known Petitioner for two and a half years. They worked together at the Center for Emotional and Behavioral Health. She was qualified as an expert in the area of clinical social work. Ms. Palezuelos performed a mental health status examination on Petitioner on May 2, 1996. She discussed his homosexuality and the sexual offense at the time she did the mental status exam. Ms. Palezuelos described herself as more a friend than a colleague. They only worked together about six months. She was sometimes present while he did therapy if they were doing group therapy. He trained her when she first came on the job. Petitioner did not inform her of his past criminal history while they worked together. At the Center for Emotional and Behavioral Health supervision was structured loosely where the therapists would give each other feedback after presenting cases. Sara Billings is a licensed clinical social worker. She was qualified as an expert in the area of clinical social work. Ms. Billings met Petitioner in January, 1994, at the Center for Emotional and Behavioral Health. She has supervised Petitioner since that time. Ms. Billings worked with Petitioner for two years before he disclosed his criminal history involving sexual assaults. During those two years Petitioner did therapy on children as well as adults. In January, 1995, she asked Petitioner to join her in her private practice in Melbourne, Florida. Ms. Billings is not present while Petitioner does therapy. She did not feel the children being treated and their parents should be told about Petitioner's criminal history. A child is anyone under the age of 18. The Diagnostic and Statistical Manual, Fourth Edition (DSM IV) is an accepted textbook for practicing psychologists. DSM IV states that guidelines for pedophilia are an age difference of 5 plus years between the offender and the victim. Ms. Billings admitted Petitioner meets the criteria for a pedophile as set forth in the DSM IV. However, she does not believe he is a pedophile because the child Respondent molested was as physically mature as an adult. She bases this opinion on what Petitioner has related to her about his case. Dr. Deborah Day is a licensed clinical psychologist, licensed mental health counselor and a certified family mediator. Her specialty is clinical and forensic psychology specializing in physical and sexual abuse. She was the consultant for the Child Protection Team and the Sexual Abuse Treatment Program. She is presently on the Board of the Sexual Abuse Treatment Program. She has dealt with approximately 1000 cases involving sexual abuse. She was qualified as an expert in the area of sex offenders and sexual abuse. Dr. Day reviewed a file provided by the Respondent that included the mental health status exam and copies of the Petitioner's criminal records. The issues presented in the file are issues she commonly deals with in her practice. Petitioner has not provided sufficient information to make an assessment on whether he is a risk to re-offend. The Mental Status Exam only addresses current levels of functioning. Full responsibility in the course of treatment for a sex offender means getting past the defense mechanisms offenders use initially in treatment in order to keep their ego safe. Full responsibility for a person's conduct is saying the child or adolescent had nothing to do the adult's conduct. The offenders' responsibility was solely to say "no". Most homosexuals are not pedophiles. Homosexuals generally either withhold their sexuality or they hide it from the general public. A sex offender with a history of being molested as a child is common. A convicted sexual offender who has applied to work with children in a therapeutic relationship is a risk to the offender and the child. It sets up a trusting relationship where boundaries have to be closely monitored. Petitioner's statement that he was confused about his homosexuality in 1986, when he sexually assaulted the 15-year old boy, is minimization, rationalization and demonstrates a superficial understanding of what really happened. It is denial for a convicted sexual offender to say he is not aroused by children. There has to be sexual attraction if you sexually abuse a child. Petitioner will be able to continue to work as a social worker and a therapist as long as his clients are adults. Whether or not he discloses his past to adult patients is an ethical matter and not one for the present case. Petitioner has not testified with candor as to his past conduct. Moreover, Petitioner made conflicting statements and rationalizations with respect to the circumstances surrounding the crimes. He has not produced treatment records to support his claim that he received treatment in a sexual offender program. Petitioner has not demonstrated by clear and convincing evidence that he is rehabilitated and will not present a danger to children or disabled adults.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request for an exemption be DENIED. DONE AND ENTERED this 11th day of March, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1997. COPIES FURNISHED: Philip S. Paul 537 Wilson Avenue Satellite Beach, Florida 32937 Carmen Muniz Sierra, Esquire District 7 Legal Office Department of Children and Families 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Gregory D. Venz Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether the Respondent, William Henry Thomas, committed the violations alleged in a two-count Administrative Complaint issued by the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, on July 26, 2005, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the "Department"), is the state agency charged with the duty to prosecute administrative complaints pursuant to Section 20.125, and Chapters 120, 455, and 475, Florida Statutes. Respondent William Henry Thomas is a licensed Florida real estate agent. Mr. Thomas's license number is 590454. At the time of the hearing, Mr. Thomas was listed as a sales associate affiliated with Brenner Realty, Inc. ("Brenner Realty"), license number CQ 1014108, a brokerage corporation located at 9400 Gladiolus Drive, Suite 290, Fort Myers, Florida 33908. Mr. Thomas has been actively licensed in Florida since August 17, 1992. No prior disciplinary action has been brought against Mr. Thomas. On December 20, 2002, Mr. Thomas entered a plea of nolo contendere to two counts of possession of child pornography pursuant to Subsection 827.071(5), Florida Statutes. Mr. Thomas was adjudicated guilty and sentenced to five years of sex offender probation for each count, the sentences to run consecutively. Mr. Thomas was also ordered to attend sex offender treatment and counseling, and not to attend "any nudist colonies" during the period of his probation.2 The official transcript of Mr. Thomas' plea proceeding was entered into the record of this case. During that proceeding, assistant state attorney John L. Burns described the facts that the state would have shown at trial as follows: Judge, what we show is that through the testimony of various agents from the Federal Bureau of Investigation . . . that [an] Internet computer investigation began nationwide that eventually through their investigation turned up several people, some in Texas, across the country, but eventually a portion of the investigation was linked to this defendant.[3] And that we would show on several occasions Mr. Thomas had in his possession—— what he would do is, he would take from news groups depictions that would be deemed child pornography, and while he would not download them to his computer, he would save the pictures on what's called [an] ISP server, such as Yahoo, or Hotmail, which would allow him to access those pictures via his computer at any time. He was able to receive, send, or distribute those photographs through the Internet by posting those photographs from one news group to another news group. At the court's behest, Mr. Burns made the standard plea inquiries of Mr. Thomas, who answered that he could read, write and understand the English language; that he was not currently under the influence of any drugs, alcohol or intoxicants; that he was not suffering from mental illness; that he had no physical disabilities that would prevent him from understanding his plea; that he in fact heard and understood the terms of his plea; that he desired to enter the plea; that he had the opportunity to ask his attorney questions about the plea; that his attorney satisfactorily answered those questions; that he was giving up the right to a jury trial and to appeal his adjudication; that he had not been threatened or coerced in any manner to enter the plea; that he had been given no promises in exchange for his plea, aside from the agreement stated in open court; and that he was fully satisfied with the services of his attorney. Despite his statements in open court, Mr. Thomas testified in the instant proceeding that his plea was in essence coerced by his then-attorney. Mr. Thomas testified that FBI agents arrived at his front door on February 26, 2002. They had no warrant and asked to come inside and talk. Mr. Thomas let them in and talked with them for an hour about message boards. The agents asked whether Mr. Thomas was familiar with the "Candyman" internet site. Mr. Thomas admitted using message boards, but told the agents he had never heard of the "Candyman" site. The agents asked if they could examine Mr. Thomas' computer. Believing he had no choice, Mr. Thomas allowed the agents to search his computer. His computer was never seized by law enforcement authorities, and no search warrant was ever issued against Mr. Thomas. Mr. Thomas testified that he was never a member of the Candyman group and never knowingly received images from its members. He stated that the Yahoo e-mail address and internet service provider ("ISP") that the FBI attributed to him were incorrect, and that his own Yahoo account was set up to automatically block e-mail and spam. Mr. Thomas testified that his lawyer never obtained adequate discovery from the FBI and that he was never allowed to see the two photographs that he was alleged to have had in his possession.4 Mr. Thomas testified that his lawyer convinced him that pleading to the charges in state court and accepting probation was the only way to avoid federal prosecution and a possible prison sentence. Mr. Thomas was convinced that the FBI would not hesitate to provide false testimony in order to obtain his conviction in a federal trial. Further, during the time the prosecution was pending, Mr. Thomas' wife was diagnosed with diabetes and hospitalized. She suffered pronounced weight loss and was emotionally distraught at the thought of Mr. Thomas going to prison. In light of all these circumstances, Mr. Thomas decided to accept the plea offer. Mr. Thomas testified that, while it seemed expedient at the time, accepting the plea offer only caused him more distress. He had a long talk with his wife, during which he told her he could not live with the fact that he had admitted guilt to a crime he did not commit. In January 2003, Mr. Thomas retained his current counsel and set about attempting to set the plea aside and vacate his conviction, via various motions filed during January and February 2003. The motions were ultimately denied by court order dated February 21, 2003. Mr. Thomas received a final order of probation on March 10, 2003. In a letter dated March 14, 2003, Mr. Thomas informed the Florida Real Estate Commission of his nolo contendere plea to the charge of possession of child pornography, a third degree felony. The letter was received by the Department on March 21, 2003. Mr. Thomas conceded that the letter was sent more than 30 days after he entered his plea. Mr. Thomas testified that for a time after he entered his plea, he was unaware of the 30-day reporting requirement. After he learned about the requirement, he still hesitated because he believed that his plea was not final while his motions to set the plea aside and vacate his conviction were pending before the court. Mr. Thomas did notify the Florida Real Estate Commission within 30 days of the court order denying his motions. The evidence indicates that Mr. Thomas did not attempt to conceal his conviction from the local real estate community in Port Charlotte. He immediately informed his broker at Century 21 of his conviction. Mr. Thomas left Century 21 in March 2003 after it became uncomfortable to work there, due to his employer's misguided concern that Century 21 would be listed on Mr. Thomas' entry on the Florida Department of Law Enforcement's sex offender web page. Mr. Thomas began interviewing with other brokerages, and informed them of his conviction. These facts lend added credibility to Mr. Thomas' contention that he would have reported his conviction to the Florida Real Estate Commission within 30 days had he been fully cognizant of the requirement to do so. Under the terms of his probation, Mr. Thomas had to allow his probation officer to conduct periodic "walk-throughs" of his home and to perform annually a complete search of the home. During the annual search performed on April 27, 2004, the probation officer found a box containing more than 200 "naturist" publications that included photographs of adults and children in the nude. The box was stored in a closet, out of plain sight. The probation officer, Douglas Skelly, testified that it was obvious the box had not been recently looked through. Though the photographs did not depict sexual activity, Mr. Skelly stated that the materials constituted a violation of Mr. Thomas' sex offender probation and reported the alleged violation to the court. Mr. Thomas testified that the box of naturist publications had been stored in the closet since before his arrest and that he had simply forgotten they were there. On September 23, 2004, the court accepted Mr. Thomas' plea of guilty to two counts of probation violation. However, rather than revoking or extending Mr. Thomas' probation, the court actually reduced it from ten to seven years. Mr. Skelly verified that, aside from the incident with the naturist publications, Mr. Thomas has complied with every requirement of his sex offender probation. Frank Vargo is the pastor of Freedom Bible Church, a 300 member church that Mr. Thomas has attended for six years. Pastor Vargo testified that Mr. Thomas told him about his history, and that Pastor Vargo kept an eye on Mr. Thomas while getting to know him. Pastor Vargo is convinced that Mr. Thomas is a good person and noted that Mr. Thomas "faithfully" attends church and is a frequent volunteer. Pastor Vargo has heard nothing negative about Mr. Thomas. He has recommended Mr. Thomas to persons needing a real estate agent, and would not hesitate to do so in the future. Scott Brenner is a Florida licensed real estate broker and the owner of Brenner Realty, with which Mr. Thomas has been licensed for about three and one-half years. Mr. Brenner has been aware of Mr. Thomas' legal situation since hiring him. He described Mr. Thomas as possessing a high degree of professionalism, integrity, and an earnest desire to represent his clients. Mr. Brenner has no qualms about Mr. Thomas' having access to the lockbox that allows a real estate agent to enter a house for sale. He has received no complaints about Mr. Thomas. Fellow realtors Susan Pintz and Robert Hackett testified on behalf of Mr. Thomas. They both spoke highly of his professional capabilities and personal qualities. Ms. Pintz stated that Mr. Thomas has always acted with honesty and integrity. Mr. Hackett, who has known Mr. Thomas and his family for 15 years, was grateful to Mr. Thomas for helping him pass the real estate licensing exam and became good friends with him. Mr. Hackett testified that he has never seen Mr. Thomas do anything dishonest, unethical, or inappropriate in his business or personal dealings. Margaret Thomas has been married to Mr. Thomas for 30 years. They have a 26-year-old son. She described Mr. Thomas as a good husband and father, and a fine person who is always the first to help others in times of distress. Ms. Thomas is the general manager of a hearing aid service, and testified that the family income would be cut by half if Mr. Thomas lost his real estate license. She has diabetes for which she takes insulin, and she takes other medications for a mini-stroke she has suffered. Mr. Thomas has recently had several surgeries for diverticulosis and a ruptured bowel. Ms. Thomas testified that her husband's income is critical to meeting the family's medical and other expenses. The Department offered no actual evidence to establish that Mr. Thomas presents a risk to persons dealing with him in a professional capacity. The hypothetical situation of Mr. Thomas' using his lockbox privileges to enter a house in which only children were present was mooted at the hearing. Mr. Thomas persuasively testified that such an incident has never occurred in his experience. His clientele in Port Charlotte consists mainly of retirees; he has not had a client with children in five or six years. In any event, Mr. Thomas has practiced pursuant to his license almost continuously since 1992 without incident or complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that A final order be entered finding that William Henry Thomas violated Subsections 475.25(1)(f) and (p), Florida Statutes, and placing his license on probation for a period of five years. DONE AND ENTERED this 21st day of March, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 21st day of March, 2008.
The Issue Does the Department of Corrections' Sexual Harassment Policy, as contained in the Pamphlet "Sexual Harassment, Your Rights and Responsibilities", in a one-page document entitled "Department of Corrections Sexual Harassment Policy", and Chapter 7 of the Department's Personnel Procedures Manual, constitute umpromulgated rules, pursuant to Section 120.535 F.S.? Are existing Department of Corrections Rules 33-4.001(4)(a), 33-4.002(4), and 33-4.003(22) and (24), F.A.C. invalid exercises of delegated legislative authority due to vagueness, pursuant to Section 120.56 F.S.?
Findings Of Fact At all times material, Petitioner has been a career-service employee working as a Parole Officer I for DOC. He has earned a master's degree in criminology. At all times material, DOC has had in effect a one-page document entitled "Department of Corrections Sexual Harassment Policy" (P-5), a Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities" (P-3), and a Personnel Procedures Manual. Chapter 7 of the Personnel Procedures Manual is entitled "Sexual Harassment Complaints" (P-6). DOC has not adopted these documents as rules, and Petitioner here challenges them as unpromulgated rules. On February 22, 1996, Petitioner received written notice that he would be suspended without pay for ten days as a result of his violation of DOC Rules 33-4.001(4)(a), 33-4.002(4) and 33- 4.003(23)(25), F.A.C., (since renumbered) and the DOC's Policy on Sexual Harassment. The letter did not rely on Chapter 7 of the agency's Personnel Procedures Manual or its Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities". Petitioner appealed this action to PERC, which subsequently entered a recommended order upholding DOC's disciplinary action. Language from PERC's recommended order, which is pertinent to this instant rule challenge is: Florida Administrative Code Rule 33-4.001(4)(a) states, in pertinent part, that 'No . . . employee shall knowingly . . . commit any act or engage in any conduct which would violate any state statute, rule, directive or policy statement.' Florida Administrative Code Rule 33-4.002(4) states, in pertinent part, that 'Each employee . . . shall perform his duties fairly and impartially and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole, probation or otherwise under his supervision, inmates and the general public.' Florida Administrative Code Rule 33-4,.003(23) states that a first offense of conduct unbecoming a public employee is punishable by a written reprimand, up to a thirty day suspension or dismissal. Florida Administrative Code Rule 33-4.003(25) states that a first offense of willful violation of rules, regulations, directives or policy statements is punishable by a written reprimand, up to a thirty day suspension or dismissal. The DOC pamphlet entitled 'Florida Department of Corrections Sexual Harassment: Your Rights and Responsibilities,' provides, in pertinent part, as follows: Sexual Harassment requires two elements: The alleged conduct must be of a sexual nature, must be unwelcome and unwanted. Sexual harassment may be any of, but not limited to, the following: * * * continued suggestions regarding invi- tations to social events outside the work place, after being told such suggestions are unwelcome; * * * prolonged staring or leering to [sic] a person; * * * 32. State of Florida, Department of Corrections, Personnel Procedures Manual, Chapter 7, Sexual Harassment, provides, in pertinent part, as follows: * * * O. Sexual Harassment - Sexual Harassment is defined as unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature from or involving an employee's supervisors, peers, subordinates or any other persons in contact with an employee or applicant during the course of the conduct of the employee's or applicant's business when: Submission to such conduct is either explicitly or implicitly a term or condition of employment; or Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or Such conduct has the purpose or effect of interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. 33. The DOC Sexual Harassment Policy provides, in pertinent part, as follows: Sexual harassment may result from unwelcome sexual advances or a hostile environment created by conduct offensive to the victim such as suggestive or lewd comments, dirty jokes, offensive pictures or physical touching. Accordingly, all employees are being placed on notice that any employee found guilty of having engaged in sexual harassment will be severely disciplined, up to and including dismissal. * * * The charge of conduct unbecoming a public employee is a general charge that is subsumed if the Agency has a more specific charge that fully describes the alleged misconduct. Ford v. Department of Health and Rehabilitative Services, 9 FCSR Para. 148 (1993); Mathis v. Department of Corrections, 6 FCSR Para. 122 (1991). In this case, I conclude that the charge of unbecoming conduct is subsumed within the charge of sexual harassment and should be dismissed. PERC's recommended order also applied the foregoing provisions. At the date of formal hearing in the instant rule challenge, PERC had issued no final order. Before this instant Division of Administrative Hearings final order could be entered, PERC had extended the time for the parties to file exceptions to its hearing officer's recommended order, and ultimately, on August 13, 1996, PERC adopted its hearing officer's recommended order, thereby rendering Petitioner subject to future disciplinary action at the second occurrence level under Rule 33-4.003, F.A.C. The final order of PERC is now under appeal by Petitioner. These facts are officially recognized, sua sponte. Petitioner received copies of the Pamphlet, the Sexual Harassment Policy, and a copy of Chapter 33-4, F.A.C., on July 16, 1993, when he began employment with the agency. He did not receive a copy of Chapter 7 of the Personnel Manual and was unaware of it until his PERC proceeding. DOC imposes disciplinary action against its employees for conduct which constitutes sexual harassment. Petitioner received periodic training in agency seminars on the agency's Sexual Harassment Policy, including annual film presentations. He did not receive similar training regarding "conduct unbecoming a public employee", which is a term utilized in Section 110.227(1), F.S., and for which an employee may be disciplined. Section 110.227(1), F.S., also permits discipline of employees for "willful violation of the provisions of law or agency rules". Rule 33-4.001(4)(a), F.A.C., provides, in pertinent part: Responsibility for Conduct of Employees, Inmates and Others. No Administrator, Superintendent, Officer-In-Charge, Supervisor, or other employee shall knowingly permit any subordinate, inmate or other person to, nor shall he, commit any act or engage in any conduct which would violate any statute, rule, directive or policy statement . . . . Petitioner claims that Rule 33-4.001(4)(a), F.A.C., is vague as applied to him because he is not an administrator, superintendent, officer-in-charge, or a supervisor. According to Petitioner, this rule in only applicable to those who supervise subordinates. Rule 33-4.002(4), F.A.C., provides in pertinent part: (4) Each employee shall keep himself physically fit, mentally alert, personally neat and clean and shall perform his duties fairly and impartially, and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole, probation or otherwise under his supervision, inmates and the general public . . . . Rule 33-4.003, F.A.C., is entitled "Range of Disciplinary Actions" and lists a number of violations. Item (22) is "Conduct Unbecoming a Public Employee"; Item (24) is "Willful Violation of Rules, Regulations, Directives, or Policy Statements". The range of disciplinary penalties is increased at the second occurrence level under the rule. The agency Policy Statement, Pamphlet and Chapter 7 of the agency Personnel Manual state that sexual harassment is conduct unbecoming a public employee and contain definitions of sexual harassment, including hostile work place sexual harassment. The first sentence of the Pamphlet states that sexual harassment is a form of sex discrimination under Title VII of the 1964 Civil Rights Act and is conduct unbecoming a public employee, as provided in Sections 110.105, 110.227 and 110.233, F.S., and Chapter 33-4, F.A.C. (Rules of the Department). The first page of the Pamphlet states EEOC guidelines defining sexual harassment, as recognized by the agency: Unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature when: Submission to such conduct is made either explicitly or implicitly a term or condition of a person's employment, or Submission to, or rejection of, such conduct by [sic] decisions affecting an individual, or Such conduct has the purpose or effect of substantially interfering with a person's work [sic] hostile or offensive working environment. The Pamphlet goes on to advise that sexual harassment requires two elements: conduct of a sexual nature/that is unwelcome and unwanted. It lists examples of harassing behavior, advises of the need to report such behavior, and explains the agency's internal complaint procedure and the procedure's protections against retaliation. It gives references for legal remedies outside the agency. Chapter 7 of the Personnel Procedures Manual states basically the same information as the Pamphlet, lists the same legal authorities and details the internal complaint procedure. It specifically provides, If there is a determination that there is cause to believe sexual harassment occurred, disciplinary action shall be taken in accordance with Chapter 33-4 Department of Corrections Rules. Chapter 7 was first effective on January 25, 1989 and last amended on March 5, 1993. It derives its authority from Title VII of the 1964 Civil Rights Act, Sections 110.105, 110.227, and 110.233, F.S., and Chapter 33-4, F.A.C. Both the agency Pamphlet and Chapter 7 of the Manual state that sexual harassment is conduct unbecoming an employee. Petitioner's position with regard to whether or not the Pamphlet and Chapter 7 of the Manual constitute unpromulgated rules appears to center on his belief that without them, employees are not on notice as to exactly what behavior constitutes sexual harassment, that they contain a subtext of what types of sexual harassment, i.e. hostile work environment, will be disciplined, or that they alone reveal that sexual harassment constitutes "conduct unbecoming". Petitioner testified that he understood blatant sexual harassment, such as unconsented physical contact, to be conduct unbecoming a public employee, but he did not have a clear understanding about the "gray areas", such as complimenting co- workers, socializing outside work, or what acts constituted hostile work place sexual harassment. However, Petitioner testified that he was on notice that the agency had an Anti-Sexual Harassment Policy and that at all times material, he knew that if he committed sexual harassment, he would be subject to discipline, up to and including termination. Petitioner admitted that if any employee engaged in actual sexual harassment against another employee, the offending employee would not command the respect of fellow employees, as described in Rule 33-4.002(4), F.A.C. He also was on notice through Rule 33-4.003, F.A.C., that he could be disciplined for "conduct unbecoming" or "willful violations of law or policy statements". He is charged at law with knowledge of Section 110.227(1) requiring discipline for "conduct unbecoming" or "willful violation" and Chapter 760 F.S., which implements Title VII of the 1964 Civil Rights Act. The agency routinely disciplines its employees for sexual harassment and has a long history of application of its Anti-Sexual Harassment Policy. Petitioner did not submit any evidence as to how Chapter 7 of the agency's Personnel Procedures Manual, the Pamphlet, or the one- page Policy Statement had any affect on him, beyond the discipline described, supra. Furthermore, there was no evidence presented to show that the agency's Sexual Harassment Policy, the Pamphlet, or Chapter 7 of the Personnel Procedures Manual have any affect on any person not employed by Respondent. There was no evidence that any of the provisions in these documents were self-executing.
The Issue The central issue in these cases is whether Respondent is guilty of the violations alleged in the Administrative Complaints; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Department of Professional Regulation, Board of Medicine, is the state agency charged with regulating the practice of medicine in Florida. Respondent, Beltran Pages, M.D., was, at all times material hereto, a physician licensed to practice medicine in the State of Florida having been issued license number ME0036079. Respondent is a board certified psychiatrist who has practiced in the Palm Beach County area since July, 1981. Respondent left private practice in September, 1985, and is currently employed at the South Florida Evaluation and Treatment Center, an HRS facility for the criminally insane. During the period February, 1982 through September, 1982, Respondent treated Lynn Harrington (now Lynn DeGrado) at his Boca Raton office which was located in the Weir Plaza Building. This office space was shared with a Dr. Cohn. The Boca Raton office consisted of a waiting area, a hallway with bathroom, and two physician offices. The walls in this facility were not sound proof and noises could be heard, if not distinguished, between the rooms. Mrs. Harrington had a regular Tuesday appointment at 10:00 a.m. During these weekly visits Mrs. Harrington discussed her marital difficulties with Respondent. One of the problems was an affair Mrs. Harrington was having which she did not want to abandon. Mrs. Harrington did not find her husband sexually attractive and, while she hoped the sessions with Respondent would enable her to rehabilitate her marriage, the Harringtons eventually divorced. During the latter months of the marriage, Pat Harrington became aware of his wife's infidelity. Mr. Harrington felt that Respondent had misrepresented progress being made to save the Harrington marriage. Mr. Harrington amended his petition for dissolution of marriage to claim Mrs. Harrington was an unfit mother. In a sworn statement taken October 27, 1982, Mrs. Harrington claimed she and Respondent had had sexual relations during the course of her treatment. This sworn statement was given in connection with a settlement of the dissolution issues. The statement was not to be used in court since the parties had resolved all their differences regarding the children. Later, Mr. Harrington sued Respondent in a civil suit for damages in connection with the claimed sexual conduct. This suit was later dismissed by the court. During the course of treatment with Mrs. Harrington, Respondent had many frank, open conversations of a sexual nature with her. These conversations included discussions of Mrs. Harrington's affair and her fantasies. During this time the Respondent did not engage in sexual intercourse with Lynn Harrington. Mrs. Harrington's testimony that she and Respondent had engaged in sexual intercourse was not credible. Mrs. Harrington was unable to describe with any detail any incident or time during which such conduct occurred. During the period June, 1983 through November, 1984, Respondent treated Lorry Thomas at his Delray Beach office on Linton Boulevard. The walls in Respondent's Delray Beach office were sound proof. Lorry Thomas came to Respondent with a history of depression. In addition to prescribing medications for her, Respondent saw Mrs. Thomas on a weekly basis. During these sessions Respondent and Mrs. Thomas engaged in frank, open discussions of a sexual nature. These discussions led to further activities which ultimately resulted in Respondent and Mrs. Thomas engaging in sexual intercourse. The Respondent engaged in sexual intercourse with Lorry Thomas during the time she was being treated as his patient. Following the sessions with Respondent, Lorry Thomas would often emerge to the outer office in a rumpled, upset condition. This condition was observed by Respondent's receptionist/secretary, Jolene Stratton. When Mrs. Thomas determined she could not continue as both a patient and a lover, she elected to cancel appointments in an effort to continue seeing Respondent. During the course of her treatment with Respondent, Mrs. Thomas was married and living with her husband, Mike. When Mike was transferred to California, Mrs. Thomas moved there also but continued written or telephone communications with Respondent. In December, 1984, Lorry Thomas went to see a clinical psychologist in Santa Clara, California, named Jean Bayard. Mrs. Thomas complained of a despair in her life and an uneasy feeling regarding her marriage. During the course of her discussions with Dr. Bayard, Mrs. Thomas disclosed her past sexual relationship with Respondent. On one occasion Respondent "made a pass" at and kissed Ms. Stratton. This incident occurred when they were viewing pictures in a magazine featuring nude females. Respondent's denial of the sexual relationship with Lorry Thomas was not credible. It is improper for a physician to engage in sexual intercourse with a patient during that patient's treatment. Such conduct is contrary to acceptable standards for psychiatrists.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulations, Board of Medicine enter a Final Order dismissing Administrative Complaint (#30291), Case No. 87-4157. It is further recommended that a final order be entered finding Respondent guilty of the violations alleged in the Administrative Complaint (#70999) , Case No. 87-1882, imposing an administrative fine in the amount of $5000, suspending Respondent's license for six months, and placing Respondent on probation for a period of two years with appropriate supervision and restriction, and requiring such continuing education programs as the Board may deem appropriate. DONE and RECOMMENDED this 31st day of May, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 31st day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-1182, 87-4157 Rulings on Petitioner's Proposed Findings of Fact: Paragraphs 1, 2 and 3 are accepted. Paragraph 4(a) is rejected as argumentative. Paragraph 4(b) is rejected as argumentative. To the extent paragraph 5 finds Respondent and Lorry Thomas engaged In sexual Intercourse during the time she was in treatment such paragraph is accepted. Otherwise, the paragraph is rejected as unsupported by the record ("wide variety of sexual activity") or argumentative. Paragraph 6 is rejected as contrary to the weight of the evidence. Paragraph 7 is rejected as contrary to the weight of the evidence. With regard to paragraph 8, only to the extent that Respondent and Lorry Thomas engaged in sexual intercourse during the time she underwent treatment is the paragraph accepted. As a matter of law, there would be a presumption she was not consenting. Otherwise, paragraph 8 is rejected as contrary to the evidence. COPIES FURNISHED: William O'Neil, Esquire Jon King, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harry D. Dennis, Jr., Esquire 1401 East Atlantic Boulevard Pompano Beach, Florida 33060 Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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, Donald Alvin Jones, 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 15, 1980. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until February 4, 1901, so that Petitioner might secure representation. In the course of the final hearing the Petitioner testified in his own behalf and called as witness Michael Denny, Staff Psychologist in the forensic service at the Florida State Hospital. The Respondent called Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital as its witness. Respondent's Exhibit No. 1 was admitted into evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Duval County, Florida, and the authority of Chapter 917, Florida Statutes, (1977). Petitioner presently resides 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, theRespondent has exhausted treatment in the affiliated programs. Indeed, the Petitioner participated in the program at the North Florida Evaluation and Treatment Center, a sex offender program. This treatment commenced in October, 1977, and lasted for a period of approximately six months, after which time he was returned to the committing court and later placed in the Florida State Hospital forensic unit. The primary program for mentally disordered sex offenders in the Florida State Hospital is group therapy. The Petitioner has participated in group therapy sessions and beginning in January, 1980, was assigned to intensive assertion training. In this connection, his group therapy sessions now involve a group which is more confrontation oriented. In the course of the group therapy sessions he has only personally discussed himself one time in his most recent group and that participation discussion occurred on February 3, 1981. The discussion related to the Petitioner's interest in a talent show at the hospital. The Petitioner has learned about his childhood experience while in the program but he will not relate his sexual history or discuss his daily activities. The patient carries a diagnosis of inadequate personality and sexual deviation, namely pedophilia and has subnormal intelligence. His behavior is guarded and evasive and on balance his cooperation and participation is superficial. In the last six or eight months of his treatment, the Petitioner has not made satisfactory progress. The progress that has been achieved in the program relates to the patient's willingness to deal with others more readily, thereby getting along with others and creating a better feeling about himself. The patient has not broken the rules of the Forensic Unit lately but when pushed by others will become angry. The Petitioner has been involved in wood and musictherapy, is a member of the Jaycees and attends dances and dance classes. In January, 1980, the Petitioner was presented to a staff disposition conference consisting of members of the treatment team in the program for mentally disordered sex offenders and it was determined that the patient should be retained for a period of time. Again, in September, 1980, the patient was presented to the conference and it was determined that the hospital had exhausted the treatment possibilities for the Petitioner. Through a staff conference of the heads of the various sex offender programs in the Department's overall system held in October, 1980, it was the unanimous opinion of those members that treatment possibilities for the patient had been exhausted. Although the Petitioner continues to express some motivation about participation in the sex offender program and feels that he needs more assistance, needs a structured environment, further participation in a sex offender program offered by the Respondent would not be sufficiently beneficial to cause the Petitioner to remain in the program.
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 Donald Alvin Jones and that said Donald Alvin Jones be returned to the committing court for further proceedings. DONE and ENTERED this 27th day of February, 1981, 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 27th day of February, 1981. COPIES FURNISHED: Claude Arrington, Esquire Assistant Public Defender Second Judicial Circuit 211 East Jefferson Street Quincy, Florida 32351 Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue The issues in this case are, one, whether Respondent corruptly used his official positions to sexually harass female subordinates in violation of Section 112.313(6), Florida Statutes; and, two, whether Respondent solicited or accepted sexual favors from female subordinates based upon any understanding that his vote, official action, or judgment would be influenced thereby, in violation of Section 112.313(2), Florida Statutes.
Findings Of Fact Respondent Rudy Maloy (“Maloy”) worked at the Florida Department of Transportation (“DOT”) from 1980 until October 21, 2001. The last seven years of his career in state government were spent in DOT’s Turnpike District Planning Office, where Maloy served as the “Public Involvement Manager.” In that capacity, Maloy conducted workshops and public hearings around the state concerning Turnpike projects. In 1992, Maloy was elected to the Leon County Commission as a Commissioner-at-Large. He was reelected twice, in 1996 and 2000. At the time of the final hearing, Maloy was a sitting Commissioner. Laurie Bradley When Maloy began working in the Turnpike District Planning Office on October 7, 1994, Laurie Bradley (“Bradley”) was already employed there in a career service position, namely, administrative assistant to the director of planning. Though she reported to the director, who was her immediate supervisor, Bradley performed secretarial functions for others in the office, including Maloy after his arrival. Maloy did not have the authority to promote Bradley, increase her salary, or let her go, but he was one of Bradley’s “bosses” in the sense that he could assign her tasks. Maloy and Bradley enjoyed a cordial relationship at work, at least by outward appearances. For example, Maloy frequently gave Bradley (and other co-workers) the complimentary tickets to events such as hockey games and concerts that he, as a County Commissioner, routinely received but could not always use himself. Bradley genuinely appreciated this token of Maloy’s generosity. She thought Maloy was a very friendly person, and she was friendly toward him. The two, in Bradley’s words, “got along fine.” At the final hearing, however, Bradley testified about other acts and practices of Maloy’s that she considered decidedly unfriendly. According to Bradley, Maloy touched her inappropriately on a number of occasions, as follows: Hugs. Bradley alleged that Maloy hugged her——from the side, around the waist——many times, and that after awhile this began to bother her. Shoulder rubs. Bradley alleged that “fairly often” Maloy stood behind her and rubbed her shoulders without ever being invited or encouraged to do so. Kisses. Bradley alleged that in or around February 1996, Maloy kissed her on the cheek. Bradley also claimed that a few weeks later, Maloy kissed her on the mouth, while the two were alone together in an elevator going down at the end of a workday. Caresses. Bradley asserted that on one occasion in May 1996, within hours, ironically, after they had received sexual harassment training, Maloy taunted her by stroking her arm and asking if such behavior constituted sexual harassment. Bradley further averred that Maloy expressed his opinion that if one person is bothered by another’s conduct in the workplace, then the two should resolve the problem privately, rather than reporting it to management. Finally, Bradley alleged that, as part of this episode of teasing, as she perceived it, Maloy stated that he might be able to get her a job with the county having a higher salary than her present position.1 Maloy testified that he never touched Bradley inappropriately, and he specifically denied her allegations to the contrary. Thus, the evidence is irreconcilably in conflict as to whether Maloy sexually harassed Bradley. It is significant, therefore, that not a single witness who testified at the final hearing had actually seen Maloy touch Bradley improperly or in an unwelcome manner. In contrast, one disinterested witness testified credibly that she observed Bradley hug Maloy once or twice as a friendly gesture of thanks for receiving tickets to a hockey game; this testimony is accepted as true. Several witnesses who lacked personal knowledge of any misconduct on Maloy’s part were called to establish that Bradley told others in confidence——at or near the time of the events in question——that Maloy was allegedly harassing her. There is no doubt that Bradley did share such information with others. In fact, her contemporaneous accusations were soon reported to persons in DOT’s management, who understandably insisted that an investigation be conducted. Consequently, Bradley submitted a formal written complaint about Maloy to her employer, and DOT investigated the matter.2 That Bradley complained to others about Maloy in 1996 is circumstantial evidence from which one might infer that the alleged sexual harassment occurred.3 It is relatively weak circumstantial evidence, however, because it ultimately rests largely, if not entirely, on the credibility of the very same person——Bradley——whose testimony it was offered to corroborate. Indeed, drawing the inference largely would beg the question of Bradley’s veracity, for doing so would require that her veracity (which Maloy disputes) be assumed.4 Having carefully weighed and evaluated all of the relevant, persuasive evidence, the undersigned is unable to find, without hesitancy, that Maloy engaged in the conduct of which Bradley has accused him. This determination, it should be stressed, reflects the fact-finder’s judgment concerning the weight of the evidence and nothing more; it is purposefully not a finding regarding what occurred or did not occur between Bradley and Maloy.5 The undersigned affirmatively finds that whatever transpired between them, Maloy did not intentionally use or attempt to use his official positions to secure a benefit for himself through the alleged harassment of Bradley.6 Likewise, it is found, by a preponderance of the evidence, that there was no understanding between Maloy and Bradley that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from Bradley——assuming he requested or received any such thing, which was not clearly and convincingly proved. Ophelia Morris In December 1996, Ophelia Morris (“Morris”) replaced Bradley as the director’s administrative assistant in the Turnpike District Planning Office. As had Bradley, Morris served as a secretary to a number of managerial employees, including Maloy. She was a career service employee. Maloy could assign work to Morris, but he lacked the power to promote or fire her. Maloy and Morris became friends, and their friendship deepened over time. By 1999, the two were sufficiently close that Morris routinely confided in Maloy, sharing private information with him concerning the personal problems she was having with her then-fiancé, whom she planned to (and did) marry in May of that year. In June 1999, soon after Morris got married, Morris and Maloy began a mutually consensual sexual affair. While there are some conflicts in the evidence regarding certain immaterial details of their relationship,7 the fact-finder is convinced that neither party entered into this adulterous affair as the result of coercion, bribery, intimidation, harassment, or any type of untoward pressure, either express or implied; rather, each wanted to have an extramarital sexual relationship with the other. Some time in the autumn of 1999, Maloy offered Morris a job as his aide at the County Commission.8 The undersigned is not convinced that Morris had attempted, in any serious way, to break away from the ongoing affair with Maloy before he made this offer of employment. To the contrary, it is found that, more likely than not, Morris remained satisfied with——and had no present intention to end——the affair at the time Maloy proposed to hire her as his aide.9 Morris testified that, after initially demurring, she finally agreed to accept the at-will position as Maloy’s aide, wherein she would serve at his pleasure, but only on the condition that she and Maloy must cease having sex once she was on the county’s payroll. Morris claimed that Maloy reluctantly assented to this condition. Morris started working for Leon County as Maloy’s aide on Monday, December 20, 1999. At a Christmas luncheon that week, Morris met Denise Williams, a one-time aide to County Commissioner Cliff Thaell who was then employed in the county’s Public Works office. The two women quickly became friends and—— within a matter of days——lovers, commencing their own affair shortly after the start of the new year. In January 2000, some secrets were revealed. Denise Williams divulged to Morris that she, Denise, had slept with Maloy and asked whether Morris had done the same. Morris lied to Denise Williams and denied that she had slept with Maloy. Shortly thereafter Morris confronted Maloy with Denise Williams’s disclosure, and he admitted that the two had indeed had sex with one another. That same month, Denise Williams separately told Maloy about the affair she and Morris were having. Maloy was upset, angry, and hurt that Morris had been seeing Denise Williams. He urged her to end the affair with Denise Williams, but Morris did not immediately follow Maloy’s counsel. By February 2000, Maloy’s ongoing interest in Morris’s sexual relationship with Denise Williams was starting to cause Morris to become concerned that she would be fired because of that affair. Consequently, Morris stopped talking to Denise Williams, effectively suspending their relationship, and informed Maloy about the apparent breakup. In the meantime, Morris and Maloy continued their liaison, contrary to the supposed understanding that the sex would stop. At hearing, Morris claimed that she continued to participate in the affair with Maloy only because she feared he would fire her if she refused. However, while Maloy clearly had the power summarily to dismiss Morris, there is no convincing evidence that he ever expressly or impliedly threatened——or even intended——to take such action if she declined to have sex with him. In June 2000, unbeknownst to Maloy, Morris resumed her relationship with Denise Williams. Then, in July or August 2000, Denise Williams left a sexually explicit message for Morris on the county’s voice mail system, in a voice mailbox that Maloy checked on a routine basis. Maloy happened to hear this message before Morris did, and he was not pleased. The voice message incident was the beginning of the end of Morris’s employment as Maloy’s aide. Before long——and for a variety of reasons that are not relevant to this case—— Morris resigned, effective September 8, 2000. Two findings about Morris’s separation are made based on a preponderance of the evidence. First, Maloy did not fire Morris or force her to resign. Second, Morris did not leave because of her sexual relationship with Maloy.10 The purported understanding, mentioned above, that the affair between Maloy and Morris would terminate upon Morris’s becoming Maloy’s aide is the factual linchpin of the Commission’s case as it relates to Morris. The reason for this is that Morris clearly and candidly testified (and the undersigned has found) that her relationship with Maloy was mutually consensual and not the product of sexual harassment during the entire period she was employed with DOT. Thus, to establish that Maloy either intentionally misused his public positions to sexually harass Morris or, by sleeping with her, improperly accepted sexual favors as consideration for some official action, the Commission needed convincingly to distinguish and separate the mutually consensual “DOT phase” of the affair (which did not violate the ethics laws11) from the allegedly coercive “County Commission phase.” The undersigned is not convinced, however, that the subject affair comprised two such distinct phases. The evidence is too much in conflict regarding whether Maloy and Morris had an understanding about——or even discussed——ending their affair effective the date Morris started working as Maloy’s aide for the undersigned to find without hesitancy that such occurred.12 As a result, and in any event, it is not clear to the undersigned fact-finder that the affair between Maloy and Morris was coercive during the time she worked as his aide. The evidence in this regard, as the undersigned has evaluated and weighed it, is much too ambiguous to produce in the mind of the trier of fact a firm belief or conviction that, beginning in January 2000, Maloy was explicitly or implicitly forcing Morris to have sex with him——especially given the undisputed fact that Morris freely and voluntarily had been sleeping with Maloy for the previous six months because she wanted to.13 Additionally, the undersigned affirmatively finds, based on the greater weight of the evidence, that whatever transpired between them, Maloy did not intentionally use or attempt to use his official positions to secure a benefit for himself through the alleged harassment of Morris. Finally, it is found, also by a preponderance of the evidence, that there was no understanding between Maloy and Morris that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from Morris. Denise Williams Denise Williams, introduced above, was an aide to Commissioner Thaell from October 1997 through November 1999. At hearing, Denise Williams testified that, in June 1998, Maloy——whom she had known since the mid-1980’s——began to “prey” on her after learning that she was separated from her husband. She alleged that Maloy frequently came into her office, uninvited, to look at her legs, rub her shoulders, or give her a hug. She asserted that this attention was unwanted but admitted that she never told Maloy to stop. To discourage Maloy, she claimed, she tried to dress in a less feminine way. At the same time, she acknowledged, she sometimes hugged Maloy back.14 The picture of Maloy that Denise Williams’s testimony ultimately paints——for which, it must be said, there is no independent, eyewitness corroboration——is that of a man pursuing her with dogged persistence, ignoring her constant attempts to turn him off.15 Maloy, in contrast, suggested that Denise Williams had taken the initiative, signaling her availability by often making mildly suggestive comments to him such as, “You could have been my husband.” It is not surprising, then, that while there is no dispute that the two had casual sex at Denise Williams’s apartment in February 1999, the evidence regarding how this came about is very much in conflict. Denise Williams testified that, despite having no desire whatsoever for Maloy, she finally gave in to his repeated requests for sex in order to “let him satisfy his curiosity” in the hope that he then would quit “bugging” her.16 For his part, Maloy depicted Denise Williams as the initiator who, one Tuesday or Wednesday, unexpectedly told him that her kids would be gone the next weekend and asked him to come over for a “visit” on Saturday, which invitation he accepted. It is undisputed that Maloy and Denise Williams had casual sex a second time, in July 1999, again at her place.17 Given the conflicts and ambiguities in the evidence, the fact-finder is not convinced, without hesitancy, that the events unfolded precisely as Denise Williams has described them. Yet, he is not able to find, by the greater weight of the evidence, that Maloy’s testimony is entirely accurate, either. Thus, there can be no affirmative findings, one way or the other, on the broad question whether Maloy sexually harassed Denise Williams. Concerning the particular charges, the fact-finder is not convinced that Maloy intentionally used or attempted to use his official position to secure a benefit for himself through the alleged harassment or “pursuit” of Denise Williams. Nor is he convinced that there was an understanding between Maloy and Denise Williams that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from her. These determinations, it should be clear, reflect the fact-finder’s assessment of the quality and weight of the evidence; although properly made by the undersigned in his role as the trier of fact, they are not affirmative findings concerning what occurred or did not occur during the relevant timeframe.18 Tina Williams Tina Williams (no relation to Denise) was Maloy’s aide at the County Commission for about six months, from July 15, 1999, through the end of that year. Before coming to work for Maloy, she had worked as an accountant at the Florida Commission on Human Relations (“FCHR”), the state agency where persons who believe they have been discriminated against can file charges as a first step towards redress. Tina Williams had been introduced to Maloy in late 1998 by a mutual acquaintance, Edward Dixon, who at the time was not only a Gadsden County Commissioner but also was associated with the FCHR in some way. A few months later, Tina Williams had bumped into Maloy again at a local function, and he had asked her to apply for the position as his aide, which she later did. After having received favorable recommendations from Commissioner Dixon and from Ron McElrath, a fraternity brother of Maloy’s who was then the Executive Director of the FCHR, Maloy had hired Tina Williams. Tina Williams claims that Maloy sexually harassed her on numerous occasions, in various ways, starting before she was hired and continuing into September 1999. She testified, for example, that he frequently put his hand on her lap or attempted to do so, hugged and attempted to kiss her, talked dirty on the telephone, and made suggestive comments, including, once when they were on an out-of-town business trip together, “this is so soft” in reference to the bed in her hotel room. Tina Williams testified that the harassment stopped in September 1999, at which point, she asserted, Maloy became increasingly critical of her work and avoided her. Their relationship, she testified, seemed to improve in November 1999, but then in December Maloy asked for her resignation, which she tendered.19 Maloy testified that he hired Tina Williams to be his aide with high expectations concerning her abilities but soon became disappointed in her failure, as he saw it, to measure up. At hearing, Maloy asserted that Tina Williams had simply not worked out in the position for a number of reasons that need not be recounted here. Suffice it to say that Maloy testified he asked Tina Williams to leave in December 1999 because he was generally dissatisfied with her performance on the job. Maloy flatly denies that he ever said or did anything to Tina Williams that could be considered improper or untoward, including touching, kissing, hugging, shoulder-rubbing, suggestive comments, or like conduct. The conflicts in the evidence concerning Tina Williams’s allegations of harassment clearly cannot be attributed to individuals’ unique perspectives or differences of opinion. This is not a situation where two people have described the same historical event in different but reconcilable terms; instead, the testimony has produced two mutually exclusive versions of history. Determining which of the protagonists is telling the purest truth is a difficult task made tougher by several factors. First, there is no independent corroboration of either his testimony or her testimony by a witness having personal, firsthand knowledge of the facts. This is a greater problem for the Commission, of course, because Maloy did not have the burden to prove his innocence. Absent independent corroboration, the conflicting testimony presents a classic “he said-she said” dilemma whose resolution, if one must choose between the competing narratives,20 depends on whether “he” or “she” is deemed to be the more credible witness. In this particular case, because the Commission bears the burden of proving its case by clear and convincing evidence, Tina Williams must be judged not just credible, but considerably more credible than Maloy to sustain a finding of guilt.21 Herein, then, lies the second factor (or interrelated pair of factors) that complicates the fact-finding function: Neither participant’s testimony is inherently incredible;22 and conversely, neither one’s testimony is inherently more credible than the other’s. Tina Williams’s saga of sexual harassment cannot be rejected out of hand as a fabrication; it is obviously not fantastic. Upon hearing her story, one does not think, “That could not possibly have happened.” To the contrary, Tina Williams’s testimony is very believable. And yet, Maloy’s testimony, too, is eminently believable. He has not presented some half-baked alibi that tests credulity but rather has said exactly what one would expect an innocent man, falsely accused of sexual harassment, to say: “I did not do it.” What more, indeed, could he say, if in fact he were innocent? There was, really, no way for Maloy affirmatively to disprove the particular allegations that Tina Williams made. Third, having closely observed both Tina Williams and Maloy on the witness stand, the undersigned is unable to state with assurance, based on their respective demeanors, which of the two was probably telling the truth——or who was not. Both appeared to be sincere in recounting what had happened (or not happened) as they recalled the events in question. Neither appeared to the fact-finder to be lying. After carefully weighing all of the evidence with the foregoing factors in mind, the undersigned is not so convinced by either side’s proof as to conclude with confidence that any particular version of history advanced at hearing is highly verisimilar relative to the competing alternative. To the point, the evidence at bottom does not produce in the mind of this fact-finder a firm belief or conviction, without hesitancy, as to the truth of Tina Williams’s allegations.23 Thus, the fact-finder is not convinced that Maloy intentionally used or attempted to use his official position to secure a benefit for himself through the alleged harassment of Tina Williams. Based on a preponderance of the evidence, however, the undersigned finds that there was no understanding between Maloy and Tina Williams that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from her——assuming he requested or received any such thing, which was not clearly and convincingly proved. Ultimate Factual Determinations24 The undersigned determines as a matter of ultimate fact that the Commission has failed to prove, by clear and convincing evidence, that Maloy violated either Section 112.313(2) or Section 112.313(6), Florida Statutes, as charged, in relation to his respective associations with Laurie Bradley, Ophelia Morris, Denise Williams, and Tina Williams. It is therefore determined, as a matter of ultimate fact, that Maloy is not guilty of the ethics violations with which he has been charged.
Recommendation The fact-finder having determined that the evidence fails clearly and convincingly to establish a factual basis for culpability on any ground charged, it is RECOMMENDED that the Commission enter a final order declaring Maloy not guilty of violating Sections 112.313(2) and 112.313(6), Florida Statutes. DONE AND ENTERED this 25th day of April, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 April, 2003.
