The Issue Whether the Respondent's license as a mental health counselor should be revoked, suspended or otherwise disciplined based on the allegation contained in the Second Amended Administrative Complaint.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was licensed as a mental health counselor in the State of Florida, having been issued license number MH 0001282. The Respondent was awarded the degree Doctor of Philosophy with an area of specialization in Counseling Psychology from The Union Graduate School, The Union For Experimenting Colleges and Universities. Subsequently, the Respondent completed course work and training in, among others, the areas of psychological testing and neuropsychological examinations. The Respondent has never been licensed as a psychologist in the State of Florida under Chapter 490, Florida Statutes. However, the Respondent was allowed to practice what was commonly referred to as psychology without a license as long as the Respondent did not use the word "psychologist" or related terms in his advertising or professional activities. At all times material to this proceeding the Respondent was a member of the Florida Psychological Practitioners Association (FPPA), a private nonprofit association of psychologists, and the American Psychological Practitioners Association (APPA), a private nonprofit association of psychologists. In a promotional or advertisement letter dated October 8, 1990, the Respondent advises attorneys who specialize in personal injury cases of his services for a "regimen of rehabilitation, on an OUTPATIENT basis, for individuals with various cognitive deficits such as attention and concentration memory disorders". In the course of advising these attorneys of his services, the Respondent indicates that he has provided "neuropsychological examinations" for clients of certain attorneys and would provide "neuropsychological examinations" in performing this "regimen of rehabilitation" if one had not already been administered. On this letter appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" at the top of the letter; and (c) the words "Board Certified, Clinical Psychology, APPA" in the signature block of the letter below the signature of the Respondent. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter. In a letter dated November 19, 1990, to the Department's employee, Denise Love, Complaint Analyst, the Respondent responds to an earlier letter from Love concerning a complaint. On this letter appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" at the top of the letter; and (c) the words "Board Certified, Clinical Psychology, APPA" appear in the signature block below the Respondent's signature. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter. On a promotional or advertisement letter dated January 10, 1991, containing basically the same message as the October 8, 1990, letter referred to in Finding of Fact 5 above, appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" on the top of the letter; and (c) the words "Fl. Lic. #XA0001479; #MH0001282" and "Division of Workers Compensation Rehabilitation Services Provider" in the signature block below the Respondent's signature. There was no evidence as to what Florida License #XA0001479 refers to, but Florida License #MH001282 refers to Respondent's license as a mental health counselor. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter. There is sufficient evidence to show that at all times material to this proceeding, the Respondent was: (a) qualified to perform psychological services, including neuropsychological examinations and psychological testing; (b) not prohibited by statute or rule from offering or performing psychological services, including neuropsychological examinations and psychological testing; Board Certified in Clinical Psychology by the APPA; (d) a member of the FPPA or APPA; and (e) authorized by the FPPA or the APPA to display the seal of each of these respective organizations on his stationery. The letters "LMHC" or the words "licensed mental health counselor" do not appear on the Respondent's business card obtained by Michelle Hampton from Respondent's office while serving papers on the Respondent around February 8, 1991. However, the words "Florida License: #MH0001282" do appear on the card. The letters "LMHC" or the words "licensed mental health counselor" do not appear on either the Respondent's letter of April 8, 1991, to Denise Love, or on the Respondent's business card enclosed with the letter. However, the words "Florida License: #MH 0001282 do appear on both the Respondent's letter and business card. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on the Respondent's letter of October 21, 1991, to Michelle Hampton. However, the words "Psychotherapist & Examiner" and "Florida License: #MH0001282" do appear on the Respondent's letter in the signature block below the Respondent's signature. There was sufficient evidence to show that Respondent was qualified, by training and experience, to hold himself out as a psychotherapist. Section 491.0149(3), Florida Statutes, which requires a licensed mental health counselor to include the use of the words "licensed mental health counselor" or the letters "LMHC" on all promotional material, including cards, brochures, stationery, advertisements, and signs naming the licensee went into effect on October 1, 1990. Respondent did not become aware of Section 491.0149(3), Florida Statutes, until sometime around January, 1991, and, at that time, it was the Respondent's understanding that the requirement of that section would be met by placing his mental health counseling license's number on all promotional materials. Thereafter, Respondent placed his mental health counseling license's number on all promotional material. By letter addressed to the Respondent, referencing the Department's Case #9014778, dated October 10, 1991, Michelle Hampton advised the Respondent that the Department's attorney had requested that Hampton obtain additional information concerning Respondent's credentials, such as the continuing education courses and the college courses completed by Respondent, that would enable the Respondent to administer, and to score, psychological tests. The letter did not cite any statutory authority for requiring this information or the penalty for failure of the Respondent to furnish this information. There was insufficient evidence to show that the Department had made an earlier request of the Respondent on September 10, 1991, to furnish information concerning the Respondent's credentials, such as the continuing education courses and college courses completed, that would enable the Respondent to administer, and to score, psychological tests, notwithstanding the testimony of Michelle Hampton to the contrary which lacks credibility. By letter dated October 21, 1991, the Respondent responded within 30 days to Hampton's letter of October 10, 1991. As explained in the Respondent's letter, the Respondent considered the request in Hampton's October 10, 1991, letter as being: (a) not relevant to Case #9014778 which involved an allegation that Respondent had utilized a title reserved for those licensed under Chapter 490, Florida Statutes; (b) inappropriate; and (c) harassment. Although, the Respondent did not furnish the requested information at that time, the Respondent did not refuse to furnish the information in his reply to Hampton's letter. The Department's Case #9014778 was opened as result of a complaint filed by Susan B. Filskov, apparently involving an alleged violation of Chapter 490, Florida Statutes, and was subsequently closed along with several other cases involving complaints filed by other individuals against the Respondent. The Department made no further attempt to: (a) obtain this information from the Respondent; (b) explain to the Respondent how the information was relevant to the investigation; (c) explain the Department's need for obtaining the information; or (d) point out that the Respondent was statutorily required to furnish relevant information upon request of the Department. There is sufficient evidence to show that Respondent's conduct in regards to the Department's request for information concerning his credentials did not violate Section 491. 009(2)(o), Florida Statutes. Prior to October 1, 1992, no statutory limits on the practice of psychology or the allied fields (Chapter 491, Florida Statutes, specifically mental health counseling) existed in the State of Florida, apart from the limits on the use of the term "psychologist" and related terms described in Section 490.012, Florida Statutes, and Section 491.012, Florida Statutes, unless a person was a licensed psychologist or licensed in one of the allied fields under Chapter 491, Florida Statutes. The restriction on the use the terms referred to in Finding of Fact 20 by those persons not licensed under Chapters 490 and 491, Florida Statutes, was challenged in federal court. On January 3, 1992, in the case of Abramson v Gonzalez, 949 F.2d 1567 (11th Cir. 1992), the court issued an opinion finding that the Psychological Services Act [Chapter 490, Florida Statutes (1991)], and Chapter 491, Florida Statutes (1991), placed an unconstitutional burden on commercial speech and remanded for proceedings not inconsistent with the opinion. Included as plaintiffs/appellants in this case were several practicing psychologists, clinical social workers, therapists, and the FPPA, of which Respondent was a member. The defendant/appellees were The Florida Department of Professional Regulation, the members of the Florida Board of Psychological Examiners, and the members of the Florida Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling. On August 26, 1992, after remand on January 3, 1992, by the United States Circuit Court of Appeals, the United States District Court, Middle District of Florida, Orlando Division, in the Case styled as Abramson et al. and Florida Psychological Practitioners Association vs. Larry Gonzalez, et al., Case No. 81-735-Civ-Orl-19, entered a Stipulated Order of Permanent Injunction enjoining the defendants from enforcing against any plaintiff, or any member of plaintiff Florida Psychological Practitioners Association, the provisions of Section 490.012, Florida Statutes, and from otherwise attempting to require any plaintiff, or member of plaintiff Florida Psychological Practitioners Association, to refrain from holding themselves out by any title or description incorporating the words, or permutations of the words, "psychologist", "psychology", "psychological", psychodiagnostic", "school psychologist, or "psychotherapy", or from describing any test or report as "psychological" so long as that person was permitted under the laws of the State of Florida to practice as a psychologist. The injunction also enjoined the defendants from enforcing the provisions of Section 490.012(3), or the provisions of Section 491.012(4) or (5), Florida Statutes, with regard to Section 491.012(3), Florida Statutes, and from attempting to require any plaintiff,or any member of plaintiff Florida Psychological Practitioners Association, to refrain from holding themselves out by any title or description incorporating the words, or permutations of the words, "mental health counselor", "psychotherapist", psychotherapy", "mental health therapist", or "mental health consultant", so long as that person was permitted under the laws of the State of Florida to practice as a mental health counselor. There are like provisions enjoining the defendants as to "clinical social workers" and "marriage and family therapist" which are not pertinent here. Likewise, any plaintiff or plaintiff member of the Florida Psychological Practitioners Association were enjoined from the use of any term or title which implies or connotes that such individual holds a license issued under the provisions of Chapter 490 or 491, Florida Statutes, unless that individual is the holder of a valid license issued pursuant to either Chapter 490 or 491, Florida Statutes. There is insufficient evidence to show that the Respondent's use of the words "Board Certified Psychological Services", "Board Certified, Clinical Psychology ", "neuropsychological examinations", "psychotherapist" or the use of the "FPPA" and "APPA" seals on stationery that Respondent used for promotional, advertisement or other business purposes: (a) was false, deceptive or misleading advertisement; or (b) that Respondent was making misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling, notwithstanding the testimony of Ellen Bolves to the contrary, which lacks credibility. There is insufficient evidence to show that Respondent's failure to include the letters "LMHC" or the words "licensed mental health counselor" on all promotional material was to create false, deceptive, or misleading advertising, or for the purpose of making misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling, notwithstanding the testimony of Ellen Bolves to the contrary, which lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Count I, Count II and Count IV. It is further recommended, after consideration of Rule 61F4-5.001, Florida Administrative Code, Disciplinary Guidelines, and the primary purpose of regulating any profession being to protect the health, safety and welfare of the public and not the generation of revenue, that the Board issue a letter of reprimand to the Respondent for the violation set forth in Count III of the Second Amended Administrative Complaint. DONE AND ENTERED this 10th day of June, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6917 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,3); 2(5); 3(6); 4(7); 5(9); 6(10); 7(11); 10(16); and 12(11,12). Proposed findings of fact 11, 13, 14 and 16 are unnecessary in that they present matters previously presented in other proposed findings of fact which have been adopted. However, should there be any matter that was not previously adopted then such matters are hereby adopted. Proposed findings of fact 8, 9, 15, 17, 18, 19, 20 and 21 are not supported by competent substantial evidence in the record. Additionally, proposed findings of fact 17 - 20 also present argument which should be presented in the Conclusions of Law. Respondent, Harris' Proposed Findings of Fact: 1. The Respondent's proposed findings of fact are so intermingled with argument and other matters not considered findings of fact that I do not intend to respond to each one. However, those matters that are clearly findings of fact are adopted in Findings of Fact 1 through 24. The balance are rejected as being argument, conclusions of law, matters that should be covered in the preliminary statement, or not material or relevant. COPIES FURNISHED: Charles Faircloth, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Ste. 60 Tallahassee, Florida 32399-0792 Robert Watrous, Esquire 27 S. Orange Avenue Sarasota, Florida 34236 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry Dover Executive Director Board of Clinical Social Work, Marriage & Family Therapy & Mental Health Counseling 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent failed to meet the minimum standards of performance required by Section 491.009(2)(s), Florida Statutes, on two occasions.
Findings Of Fact The Department is the state agency charged with regulating the profession of marriage and family therapy pursuant to Section 20.43(3)(g) 29, and Chapters 456 and 491, Florida Statutes. Respondent is, and has been at all times material, a marriage and family therapist holding Florida license number MT1416. The last address of record of Respondent was 1416C, West 16th Street, Panama City, Florida 32405. Events relating to Ms. P.D. Ms. P.D. is a registered X-ray technologist, a registered ultrasound technologist, and a registered specialist in mammography. Ms. P.D. and her husband sought Respondent's professional help because they were experiencing marital difficulties. Ms. P.D. did not know Respondent until her husband chose Respondent as counselor. This occurred in June or July of 1997. They continued in counseling until March of 1999 or 2000. The dates provided herein are nonspecific because Ms. P.D. could not recall the exact years. At the beginning of the counseling, Ms. P.D. and her husband received counseling at Respondent's office. Later they went to dinner together and received these services in a less formal setting. At least two of Ms. P.D.'s daughters received counseling also. Ms. P.D. and her husband owned property in Panama City, Florida, located at 703 Kristana, a house in St. Croix, a farm in Nova Scotia, and waterfront property in Nova Scotia. Mr. and Ms. P.D. also owned a building at 810 Grace Avenue in Panama City, Florida. This property was purchased probably in 1994, and was sold in May or June of 2001. Ms. P.D. and her spouse operated an ultrasound school on the premises from about 1994 until late 1997. The ultrasound school was eventually closed due to lack of business. Ms. P.D. was a client of Respondent during the latter part of the time in which the ultrasound school was in operation. In the latter part of 1997, or in the early part of 1998, Respondent found that she could no longer occupy the office in which she had been practicing. During a counseling session, Respondent mentioned that she needed an office for her practice and Ms. P.D. informed her that she could lease the premises at 810 Grace Avenue. Respondent paid rent to Ms. P.D. by check. Ms. P.D. deposited the checks to one of at least two accounts she maintains. At some point subsequently, Ms. P.D. volunteered to work with Respondent in her practice. This was motivated in part because Ms. P.D. was an adoptive mother of two children who were acquired through an international adoption process. Respondent has experience in adoptions including working with the Florida Department of Children and Family Services. Eventually, an organization was formed with the corporate name of Future Choices, Inc. (FCI). Initial participants in the organization included Mr. and Ms. P.D. and Respondent, among others. This organization involved the adoption process. It also involved "supervised visitations." The record does not fully explain what a "supervised visitation" actually is, but it is apparent from the record that someone or some entity is willing to pay for "supervised visitations" and therefore, "supervised visitations" provided income for FCI. The business plan called for the organization to become profitable before any participants received a salary. Ms. P.D. was a member of the board of directors and was vice- president. She assumed these positions in 1998. She worked as a volunteer. She was not a subordinate of Respondent. They were business associates. Ms. P.D. served on the board until around 2000 or 2001. Events relating to Ms. P.M. Ms. P.M. works for the Salvation Army Domestic Violence Program. She sought family counseling from Respondent in 1997. She thereafter received individual counseling from Respondent until 1998. Ms. P.M. became friends with Respondent almost immediately upon the initiation of counseling. Respondent visited her in Ms. P.M.'s home, and Ms. P.M. visited Respondent in her home while the counseling relationship was ongoing. They had lunch together and went shopping. Her friendship with Respondent ended in 1999 when Ms. P.M. was informed that Respondent had revealed matters Ms. P.M. had provided to her in confidence. Events relating to both Ms. P.D. and Ms. P.M. Ms. P.D. traveled with Respondent to Tallahassee, Florida, for supervised visitation training, and to Hollywood, Florida, for a batterers intervention program, and to Orlando, Florida, for a program dealing with sex offenders. Ms. P.M. also went on the Hollywood and Orlando, Florida trips. These trips required an overnight stay or stays. Ms. P.D. also traveled with Respondent to near-by cities such as Marianna, Florida. During these trips Ms. P.D. remained a counseling client of Respondent, and Ms. P.D. voluntarily paid the cost of these trips. Ms. P.D. was excited about the business prospects of FCI. As a member of the board of FCI, Ms. P.D. signed checks drawn on the corporation. Ms. P.D. also paid the utility bills, and paid for much of the office equipment, for the benefit of FCI out of her personal funds. Sandy Gorman was a business associate of Ms. P.D. Ms. Gorman was introduced to Respondent by Ms. P.D. Ms. Gorman eventually bought the building at 810 Grace Avenue for $57,000. Mr. and Mrs. P.D. had purchased it for about $30,000. The sale to Ms. Gorman was for less than market value because Mrs. P.D. wanted to help her. During the time that Mr. and Mrs. P.D. owned the building, improvements were made on it, including the completion of an extant second floor. Respondent contributed to these improvements by causing Ms. P.M.'s husband to contribute toward making the top floor of the building habitable. Sandy Gorman is now a direct competitor of Respondent in the visitations and adoptions business in Panama City, Florida. Ms. Gorman continues to be close friends with Ms. P.D. Eventually the relationship between Ms. P.D. and Respondent soured. Around March, 2000, Ms. P.D. ejected Respondent and her belongings from the premises at 810 Grace Avenue. However, the business was beginning to turn a profit about the time Respondent was ejected. Expert testimony Debra Frank is a licensed marriage and family therapist, a licensed psychiatric mental health nurse practitioner, and a professor at Florida State University. She received her Ph.D. from Florida State University in the Interdivisional Program in Marriage and Family. She is an expert on the practice of marriage and family therapy in the State of Florida. Dr. Frank related that a marriage and family therapist provides counseling with regard to marital concerns or relationship concerns. She noted that the relationship between counselor and patient is based on trust. She opined that the counselor, because of her position, would often be able to exert influence on the client. She noted that clients come to the counseling relationship with emotional vulnerability and that it is the counselor's responsibility to act in the client's best interest. Dr. Frank explained that a dual relationship is one where there are relationships other than the counselor-client relationship. These relationships would include relationships based on business interests as well as those based on friendship. Dual relationships are not per se prohibited by either the law or by ethical standards. However, they are prohibited where they may have the potential to harm a client. In order to obtain a permissible dual relationship the therapy must terminate and there should be a gap in time prior to moving to another relationship. Moreover, the client should be referred to another counselor so that the client can discuss with another counselor the dual relationship prior to entering into it. Respondent accomplished neither of these actions.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered which finds that Respondent violated Section 491.009(2)(s), Florida Statutes, on two occasions, and which places Respondent on probation for a period of three months with remedial action as the Board may find appropriate, so long as such action is not inconsistent with the provisions of Section 491.009(1)(g), Florida Statutes. DONE AND ENTERED this 8th day of May, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 8th day of May, 2002. COPIES FURNISHED: Deborah B. Loucks, Esquire Agency for Health Care Administration 2727 Mahan Drive Post Office Box 14229 Tallahassee, Florida 32317-4229 Russell K. Ramey, Esquire 1042 Jenks Avenue Panama City, Florida 32401 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The Petitioner made application to Respondent to obtain a license as a psychologist by exception pursuant to the provisions of Section 1 of Chapter 81- 235, Laws of Florida, as amended by Section 37 of Chapter 82-179, Laws of Florida, and Rule 21U-11.05, Florida Administrative Code. Respondent denied Petitioner's application on the grounds that his doctoral degree did not meet the educational requirements of Subsection (2) of Rule 21U-11.05, Florida Administrative Code. It was stipulated by and between the Petitioner and the Respondent that Petitioner's doctoral degree did not meet the specific course requirements of Rule 21U-11.05, Florida Administrative Code. Petitioner received his B.A. degree from Rutger's University, a master's degree in counselor education from Florida State University, and a Ph.D. in marriage and family counseling from Florida State University. Petitioner's doctoral dissertation concerned itself with one of the key aspects of Adlerian psychology called "social interest." This dissertation was of such professional significance as to result in an appearance of Petitioner for the purpose of presenting the paper to the American Society of Adlerian Psychologists. Petitioner's course of study for his doctoral degree focused primarily on Adlerian psychology. The total course work completed by the Petitioner exceeded the minimum requirements for his Ph.D. In addition to his educational training, the Petitioner has done individual counseling and psychotherapy for approximately eleven years. Within the general field of psychology there are a host of different subdivisions. One of these subdivisions is counseling psychology. Within counseling psychology there are different theories or methods relative to dealing with individuals, and one of these methods is the Adlerian method. It was this method which was the focus of the Petitioner's dissertation for his doctoral degree. Petitioner sought his licensure by exception by contending that he obtained a doctoral degree from an approved university in a program that is primarily psychological in nature. The Petitioner's application for licensure was denied on the basis that his course of study was not primarily psychological in nature because the program did not include at least one course in biological bases of behavior or cognitive-affective bases of behavior as required by subparagraphs (a) and (b) of Subsection (2) of Rule 21U-11.05, Florida Administrative Code. Three other individuals, Dr. Kerr, Dr. Simpson, and Dr. Shreenan, applied for and were granted licensure as psychologists during the same period of time in which Petitioner applied and was denied licensure. Petitioner's educational qualifications were equal to or exceeded those of Drs. Kerr, Simpson, and Shreenan. Dr. Kerr, Dr. Simpson, and Dr. Shreenan were certified by the Florida Association of Practicing Psychologists and gained licensure as psychologists pursuant to Chapter 81-235 as amended by Section 37 of Chapter 82- 179, Laws of Florida, which mandated licensure of persons so certified. Petitioner did not apply for certification by the Florida Association of Practicing Psychologists. The evidence did not establish that Petitioner's failure to apply for such certification was in any part due to actions or inactions on the part of the Respondent. The specific course requirements of Rule 21U-11.05, Florida Administrative Code, were not applicable to those individuals gaining licensure through certification by the Florida Association of Practicing Psychologists. Rule 21U-11.05 was promulgated by the Board of Psychological Examiners in order to establish an objective method for evaluating the educational programs of those applying for licensure. The rule establishes the minimum qualifications for a program of study to be considered primarily psychological in nature.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner's application for licensure as a psychologist be DENIED. DONE AND ENTERED this 29th day of September, 1983, at Tallahassee, Florida. MARVIN E. CHAVIS, 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 29th day of September, 1983. COPIES FURNISHED: Mallory E. Horne, Esquire Randall A. Holland, Esquire BORNE, RHODES, JAFFRY & Assistant Attorney General HORNE Administrative Law Suite 800, Barnett Bank Bldg. 1601-The Capitol Tallahassee, Florida 32301 Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Psychology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this matter is whether the Department of Health should discipline Respondent’s clinical social worker’s license.
Findings Of Fact The Department is the state agency charged with regulating the practice of clinical social work in Florida. See § 20.43 and chs. 456 and 491, Fla. Stat. Respondent is a licensed clinical social worker in the State of Florida, having been issued license number SW 14255 on February 14, 2017. Respondent received his Licensed Master Social Work degree in New York in May 2006. Between August 2013 and August 2017, Respondent worked as a clinical social worker/psychotherapist at Compass Counseling Services, LLC (“Compass Counseling”), in Orlando, Florida. The Department seeks to discipline Respondent based on an incident that occurred on July 19, 2017. The Department accuses Respondent of committing “sexual misconduct” with a patient. The Administrative Complaint specifically alleges that, during a counseling session in his office, Respondent: told Patient L.P.[7/] that she was attractive, followed Patient L.P. to the door and grabbed her buttocks with his hand, and, grabbed Patient L.P.’s arm, pulled her towards him, and attempted to kiss her. “Sexual misconduct” in the practice of clinical social work, mental health counseling, or psychotherapy is prohibited under section 491.0111. “Sexual misconduct” is defined by rule 64B4-10.002, which provides: (1) It is sexual misconduct for a psychotherapist to engage, attempt to engage, or offer to engage a client in sexual behavior . . . whether verbal or physical, which is intended to be sexually arousing, including kissing; . . . or the touching by either the psychotherapist or the client of the other’s breasts, genital areas, buttocks, or thighs, whether clothed or unclothed. Section 491.009(1)(k) authorizes the Department to discipline Respondent for “sexual misconduct” up to and including permanent revocation of his clinical social worker’s license. In July 2017, L.P. was 27 years old. She was (and is currently) living with a transgender man, Kode Hulett. L.P. refers to Mr. Hulett as her husband, although they are not legally married as of yet. At the final hearing, L.P. testified that she suffers from a number of mental health conditions including Attention- Deficit/Hyperactivity Disorder (“ADHD”), auditory processing disorder, and bipolar disorder, as well as anxiety, anger issues, depression, insomnia, and mood disorder. In addition, L.P. experiences post-traumatic stress disorder (“PTSD”) stemming from past sexual abuse. During her testimony, L.P. also disclosed that she has a very bad memory and gets confused very easily. She urged, however, that her ailments do not affect her mental awareness. Conversely, L.P. is considered fully “disabled” in that she cannot work due to her mental health illnesses. L.P. explained that she has received mental health counseling since she was young. In June and July 2017, L.P. received psychotherapy services from Respondent at Compass Counseling. L.P. relayed that she was searching for a new therapist and (to the best of her memory) her insurance company recommended Compass Counseling. L.P. and Respondent met on three occasions, June 23, 2017, July 6, 2017, and July 19, 2017. Each appointment started at 1:00 p.m. and lasted approximately an hour. During all sessions, L.P. met with Respondent alone in his office, with the door closed. At L.P.’s first visit, Respondent initially informed L.P. that he was leaving Compass Counseling shortly for another job. Therefore, he offered to refer her to another mental health therapist (Ashlyn Douglass-Barnes, L.C.S.W.) if she so desired. Until he left, however, he was willing to meet with her. (In August 2017, Respondent departed Compass Counseling for a job with Magellan Behavioral Health. There, he manages a customer- provider call center and does not treat patients.) During their first session on June 23, 2017, Respondent colloquially introduced himself as “Dr. G.” Respondent then conducted an initial evaluation of L.P. and prepared a Complete Evaluation/Biopsychosocial Assessment. In his assessment, Respondent recorded that L.P. chiefly complained of “mood swings, anxiety, insomnia, attentional issues, auditory processing issues, and post traumatic stress.” He added that L.P. had experienced panic attacks two to three times a month for years, as well as depressive disorder. Respondent also wrote that L.P. experienced anxiety symptoms “a few times a week.” Finally, Respondent noted that L.P.’s PTSD resulted from several instances of physical and sexual abuse she suffered as a youth and a young adult. Despite her issues, Respondent wrote that L.P. appeared: [C]alm, friendly, happy, attentive, communicative, well groomed, overweight, and relaxed. . . . [L.P.’s] behavior in the session was cooperative and attentive with no gross behavioral abnormalities. Respondent recorded the following diagnoses: bipolar II disorder, panic disorder [episodic paroxysmal anxiety], and (chronic) PTSD. Regarding L.P.’s PTSD, Respondent remarked that L.P. suffered from flashbacks to the traumatic event, which resulted in feelings of detachment or estrangement from others. Respondent also documented that L.P. was prescribed several psychotropic medications including Effexor and Lamictal. (Other medical records from 2017 indicate that L.P. was also prescribed and/or taking Alprazolam, BuSpar, Concerta, Doxepin, Geodon, Hydrocodone/Acetaminophen, Lamotrigine, Meclizine, Omeprazole, Oxycodone, Quetiapine Fumarate, Promethazine, Robaxin, Rozerem, Seroquel, Sucralfate, Venlafaxine, Xanax, and Zyprexa.) As part of his assessment, Respondent formulated a six- month treatment plan for L.P., which included ongoing individual psychotherapy sessions. During their second psychotherapy session on July 6, 2017, Respondent again wrote that L.P. appeared: [C]alm, friendly, happy, attentive, communicative, casually groomed, over weight, and relaxed. . . . Mood presents as normal with no signs of either depression or mood elevation . . . thinking is logical, and thought content appears appropriate. . . . Judgment appears fair. Respondent recorded that L.P. mainly discussed her issues coping with depression and impulsivity. Respondent responded by providing “unconditional positive regard, as well as support and encouragement in [L.P.’s] therapeutic endeavors.” Respondent identified “Anxiety” and “Depressed Mood” as L.P.’s active problems in need of treatment. L.P. and Respondent met for their third (and final) appointment on July 19, 2017. During this session, Respondent recorded in L.P.’s Progress Notes that she appeared stable and made no psychiatric complaints. Respondent described L.P. as: [C]oherent and spontaneous. Mood presents as normal with no signs of either depression or mood elevation. Affect is appropriate, full range, and congruent with mood. Associations are intact and logical. There are no apparent signs of hallucinations, delusions, bizarre behaviors, or other indicators of psychotic process. Associations are intact, thinking is logical, and thought content appears appropriate. . . . Judgment appears fair. There are no signs of hyperactive or attentional difficulties. Respondent, once again, identified “anxiety” as L.P.’s active problem, which manifested in PTSD. Respondent wrote that “Clinician provides unconditional positive regard, as well as support and encouragement in [L.P.’s] therapeutic endeavors. . . . A Client-Centered and Empowerment therapeutic approach was used in session to assist [L.P.] in recognizing personal strengths, as well as how to use them to manage presenting problems.” The incident in question occurred just after L.P. and Respondent finished their final session. As was typical, L.P. and Respondent were alone in his office, and the door was closed. Initially, although Respondent was leaving Compass Counseling soon, he asked if L.P. would schedule one last appointment with him. L.P. agreed. She stood by his desk as they selected another date on his computer calendar. At that point, L.P. turned and walked to the door to leave the room. Just as she reached the door, L.P. testified that she felt Respondent’s hand grab her right buttock in a “very sexual” manner. L.P. spun around, swatted his hand away, and exclaimed, “What the f***? I’m married.” She then pivoted back to the door. L.P. asserted that when she reached for the door knob, however, Respondent grabbed her wrist. L.P. stated that she then heard Respondent say, “You’re just really attractive.” L.P. expressed that she turned toward Respondent, he leaned in close to her. She sensed (by her “intuition”) that he wanted to kiss her, but he did not. L.P. testified that she pushed him away and again said, “What the f***? I’m married.” L.P. was then able to open the door and leave Respondent’s office. When L.P. exited Respondent’s office, he accompanied her down the hallway. They walked together through the office lobby and out of the building. In the parking lot, they separated. L.P. walked to her car, where Mr. Hulett was waiting in the driver’s seat. Respondent went to his car and retrieved a business card for an auto shop. Respondent then walked over to L.P.’s car. He approached Mr. Hulett in the driver’s seat and offered him the business card. Mr. Hulett cracked down the window and accepted the card. At that point, Mr. Hulett and L.P. drove away from Compass Counseling for a trip they had previously planned for St. Augustine. Mr. Hulett testified at the final hearing in support of L.P.’s story. Mr. Hulett and L.P. have lived together for over nine years. He “believed” he accompanied L.P. on her visit to Compass Counseling on July 19, 2017. During L.P.’s counseling session, Mr. Hulett waited in his car in the parking lot. While he did not witness L.P.’s encounter with Respondent, Mr. Hulett described L.P.’s behavior and demeanor immediately following her appointment. Mr. Hulett saw L.P. and Respondent exit the Compass Counseling building together after her appointment. He then observed Respondent motion for L.P. to come to his car. He watched as L.P., instead of following Respondent, headed to their car and climbed into the passenger seat. He stated that Respondent then approached their car and offered him a business card for a car mechanic through his driver’s side window. (Mr. Hulett confirmed that his car was having engine troubles.) During this interaction, Mr. Hulett testified that he immediately noticed that L.P. was not acting “regular.” She seemed nervous, and he sensed something was wrong. L.P., however, stayed silent. He then drove away from Compass Counseling. Mr. Hulett explained that they had planned to leave for St. Augustine immediately after L.P.’s appointment. After they started driving, however, Mr. Hulett noticed that L.P. appeared “physically upset.” Therefore, he repeatedly asked her what was wrong. Around 20 minutes later, after they reached the highway (I-4), L.P. opened up to him. Mr. Hulett testified that L.P. told him what had happened in Respondent’s office. Mr. Hulett specifically recalled that L.P., who had started crying, said that Respondent touched her inappropriately; she told him to stop, but he was persistent. At that point, Mr. Hulett and L.P. discussed what to do next. They decided to press on with their vacation. They would deal with the matter when they returned to Orlando. Mr. Hulett disclosed that they did not report the incident until after their trip ended, five days later. At the final hearing, L.P. testified that she waited to tell Mr. Hulett what had transpired in Respondent’s office because she feared his reaction. She was afraid Mr. Hulett would angrily and rashly confront Respondent. Instead, after she recounted Respondent’s conduct, L.P. and Mr. Hewlett continued on their vacation to St. Augustine. On the other hand, L.P. asserted that she called Compass Counseling 20 to 30 minutes after they drove away to cancel her next appointment with Respondent. L.P.’s cell phone records document three calls to Compass Counseling on July 19, 2017. Two were placed prior to her 1:00 p.m. appointment (12:18 p.m. and 12:23 p.m.). A third call was made at 2:04 p.m., approximately nine minutes after Respondent’s Progress Notes record that he finished L.P.’s counseling session (1:55 p.m.). The final call lasted one minute and 29 seconds. No evidence was presented documenting the subject matter of the 2:04 p.m. call. During her testimony, L.P. hesitantly agreed that the 2:04 p.m. call was the one during which she cancelled her appointment. (L.P. was under the impression that she met with Respondent from 12:00 p.m. to 1:00 p.m. on July 19, 2017. However, she conceded that she would not have phoned Compass Counseling at 12:18 p.m. or 12:23 p.m. if she was actually in her therapy session with Respondent at that time.) Other than the phone call to Compass Counseling at 2:04 p.m., L.P. did not contact any person or entity to report the incident until five days later on July 24, 2017. After leaving Respondent’s care, L.P. received psychotherapeutic counseling from Ashlyn Douglass-Barnes, a licensed clinical social worker who currently works at Jewish Family Services in Winter Park, Florida. Before Jewish Family Services, Ms. Douglass-Barnes worked at Compass Counseling from March 2014 through February 2017, where she met Respondent. Respondent referred L.P. to Ms. Douglass-Barnes during their first meeting on June 23, 2017. He contacted Ms. Douglass- Barnes through Facebook messenger. Respondent wrote: I have an intake today that would like to work with a female clinician. I have advised her that I am not going to be here much longer, and that I’d happily connect her with someone who is empathic, caring, and warm. I think this would be a perfect fit. . . . She’s 27 y.o. as well and is very sweet. Before Ms. Douglass-Barnes met L.P. for their first appointment, however, L.P. called her on July 24, 2017. Ms. Douglass-Barnes testified that L.P. expressed that “I need to tell you something, but it has to stay between us.” With Ms. Douglass-Barnes’s encouragement, L.P. confided that “last Wednesday [June 19, 2017], Dr. G. [Respondent] grabbed my butt and tried to kiss me.” Ms. Douglass-Barnes also recalled L.P. telling her that when Respondent grabbed her, she “turned around and yelled at him.” Ms. Douglass-Barnes invited L.P. to come to her office that day. When L.P. arrived at Ms. Douglass-Barnes’s office, L.P. repeated that Respondent made a sexual advancement towards her. Ms. Douglass-Barnes specifically recalled L.P. telling her the following: Respondent touched her butt as their therapy session ended. L.P. then slapped his hand away, and screamed, “What the hell, I’m married.” Respondent also tried to kiss her. Respondent subsequently told L.P., “I’m so sorry. I’m just so attracted to you.” Ms. Douglass-Barnes reviewed with L.P. all available options to report the incident (law enforcement, complaint to the Department, and Compass Counseling’s insurance carrier). L.P. wanted to exercise all options. Therefore, with L.P.’s acquiescence, Ms. Douglass-Barnes called 911 to report a sexual assault. A deputy sheriff from the Orange County Sheriff’s Office arrived at Ms. Douglass-Barnes’s office approximately 90 minutes later. L.P. provided a written statement to the deputy stating: On Wednesday July 19, 2017 I had an appt. w/ [Respondent]. When I arrived to the appt he brought me into his office and we began our session. When we were done with the session he told me he wanted one more appt with me. I said OK let’s make the appt. We made the appt and when I walked out of his office he grabed [sic] my butt. I slaped [sic] his hand away and said what the f[***] I am married. [Respondent] said he was sorry. You are just really attractive. Then he tried to kiss me and I pushed him away and said what the f[***] dude I am married again. He said he [was] sorry your [sic] just really attractive. I walked out of his office and he walked me out to my car. When I told him I was fine he tried to get me to go with him to his car. I said no I will meet you in my car. . . . He walked up to my car and gave my husband a card for [a] car fixing place. I DID NOT GIVE HIM ANY PERMISSION TO TOUCH ME AT ALL!! I want to prosecute and am willing to go to court for this.[8/] L.P. also told the police that Respondent had never attempted to touch her before the July 19, 2017, incident. Also on July 24, 2017, Ms. Douglass-Barnes, again with L.P.’s consent, prepared a formal complaint with the Department. On the Complaint Form, Ms. Douglass-Barnes indicated “abuse” and “sexual contact” were the reasons for L.P.’s complaint. L.P. signed the form. Ms. Douglass-Barnes faxed the Complaint Form to the Department that day and attached L.P.’s statement to the Sheriff’s Office. In addition, in August 2017, L.P. contacted a personal injury law firm. On March 19, 2018, the law firm wrote Compass Counseling on L.P.’s behalf complaining about the July 19, 2017, incident. The letter demanded $275,000 to settle L.P.’s case. Over the next few days, Respondent reached out to Ms. Douglass-Barnes expressing an urgent need to talk to her. Respondent did not explain his reasoning, although she suspected he was simply seeking support and unaware of her involvement. Ms. Douglass-Barnes avoided directly speaking with Respondent. At Compass Counseling, Ms. Douglass-Barnes considered Respondent a friend and colleague with whom she consulted and talked two to three times a week. Based on their time together, Ms. Douglass-Barnes described Respondent as a very effective therapist and passionate about his practice. She commented that he went over and above to help his clients. However, in light of L.P.’s accusations, on July 26, 2017, she informed Respondent that it was in their best interest not to communicate any further. Ms. Douglass-Barnes has had no contact with Respondent since that date. After meeting on July 24, 2017, L.P. continued to see Ms. Douglass-Barnes for cognitive behavior therapy. They met approximately every month from August 1, 2017, through June 5, 2018. L.P. first discussed her encounter with Respondent on October 4, 2017, during their third session. They also talked about the incident on April 9, 2018, May 8, 2018, and June 5, 2018. As part of her testimony, Ms. Douglass-Barnes also provided her insight into how L.P.’s mental health conditions affected her ability to perceive and understand what was happening around her in July 2017. Ms. Douglass-Barnes conveyed that L.P. has been diagnosed with auditory processing disorder. With this condition, L.P. has difficulty processing information or instructions when she is under emotional pressure or stressed. Auditory processing disorder can also cause L.P. to become confused. Consequently, L.P.’s ability to interact with others is affected. Ms. Douglass-Barnes also commented that L.P. is not manic, but does exhibit some traits of mania. This ailment is evident in L.P.’s impulsiveness. But, it does not affect her perception. Similarly, L.P. presents some traits of borderline personality disorder, but has not been diagnosed with this mental illness. (At the final hearing, Ms. Douglass-Barnes explained that borderline personality disorder is a mental condition characterized by pervasive abnormalities of perception, behavior, thinking, and relationships. Borderline personality disorder causes a person to operate in their own world, i.e., not in reality.) Finally, L.P. does not suffer from psychosis, which would substantially affect her ability to comprehend what is happening around her. Despite these mental health disorders, Ms. Douglass- Barnes testified that she never doubted L.P.’s ability to accurately recognize and understand what happened to her in Respondent’s office on July 19, 2017. Neither does she believe that L.P.’s mental health conditions impair her ability to tell the truth. Ms. Douglass-Barnes testified that, based on her interactions with L.P. and the consistency with which L.P. described the facts and circumstances of the encounter, she believes that L.P. accurately reported that Respondent “sexually touched/assaulted her inappropriately.” After L.P. reported the incident to Ms. Douglas-Barnes, on July 25, 2017, Compass Counseling received a phone call from a caller who did not identify herself. Luz Rosa was working the receptionist desk and took the call. Although the caller did not provide her name, Ms. Rosa was able to match the phone number to L.P. based on the information in her office records. Therefore, Ms. Rosa typed up a report of the call to include in L.P.’s file. (L.P.’s cell phone records from that date document a call that was placed to Compass Counseling at 2:46 p.m., which lasted approximately 10 minutes.) According to Ms. Rosa’s typed report, as well as her testimony at the final hearing, the caller (L.P.) asked about the cost of a first time visit, as well as the amount of the co-pay for follow-up appointments. Ms. Rosa relayed that the first appointment, without a medical plan, was priced at $75.00. The cost of follow-up visits differed depending on the plan. At that point, Ms. Rosa expressed that the caller became very upset. The caller threatened to sue Compass Counseling for charging too much to her medical plan. The report did not include, nor did Ms. Rosa remember, any complaint from the caller regarding Respondent’s services or an incident on July 19, 2017. On August 8, 2017, L.P. called Compass Counseling again. She left a voice mail canceling an appointment. On her message, L.P. relayed that “something else came up.” On August 16, 2017, Compass Counseling received another call from someone who did not identify herself. Dalys Melendez was the front desk coordinator that day and answered the call. Although the caller did not provide her name, Ms. Melendez was able to match L.P. to the phone number through caller ID. Ms. Melendez typed a record of the call and added it to L.P.’s file. (L.P.’s cell phone records also document a call placed to Compass Counseling at 10:40 a.m. that day, which lasted one minute and 34 seconds.) During the call, the caller (L.P.) asked if Respondent was working at Compass Counseling. After Ms. Melendez responded that he was not there, the caller became angry, screamed a profanity, then hung up the phone. At the conclusion of her testimony, L.P. stated that, in response to the July 19, 2017, incident, she wants Respondent’s license taken away. She would also like to see him go to jail. L.P. called Respondent’s actions “disgusting” and “sick.” She voiced that she should have been able to fully trust Respondent and feel safe with him during her therapy sessions, but Respondent violated that trust. L.P. expressed that what Respondent did to her should never happen to anyone else. Respondent elected not to testify at the final hearing.9/ Instead, Respondent contested the Department’s allegations by attacking the veracity of L.P.’s story. Respondent challenged L.P.’s testimony on two fronts. First, Respondent argues that the facts and circumstances surrounding the event do not support L.P.’s narrative. Second, Respondent asserts that L.P. has credibility issues which prevent the Department from meeting its burden of proof based on her testimony. To present a more comprehensive picture of the Compass Counseling office at the time of L.P.’s appointment, Respondent offered the testimony of two individuals who were working in Compass Counseling on the afternoon of July 19, 2017. Karina Flores is a psychotherapist who has provided counseling services at Compass Counseling since 2016. Ms. Flores initially described the Compass Counseling office layout. Compass Counseling operates in a two-story building. Respondent’s office is located on the first floor. The first floor includes a lobby with a receptionist desk. Through a door behind the receptionist desk is a hallway that connects three offices. Office 1 is located at the end of the hall with a door that faces the lobby. Office 2 is the middle office. Office 3 is adjacent to Office 2 and is closest to the lobby. Respondent used the second/middle office. It shared walls on both sides with Offices 1 and 3. On July 19, 2017, as Respondent was finishing his session with L.P., Ms. Flores was sitting in Office 3 waiting to confer with him about one of her clients. Her door was ajar, and she had a clear view of the hallway leading from Respondent’s office to the lobby. Ms. Flores described the hallway as a small, tight location. She also relayed that the office walls were very thin. Consequently, she could “absolutely” hear conversations coming from other offices, as well as the hallway. Ms. Flores has used all three offices for appointments, and her experience is the same: she can “hear anything” that was said in the adjoining offices. Ms. Flores expounded that, although she might not be able to make out individual words, she has clearly heard people crying, laughing, talking, or yelling through the doors and walls. Ms. Flores testified that, while waiting to speak with Respondent, she heard two voices talking back and forth in his office. The conversation was conducted in normal tones. Occasionally, she heard “giggling.” Ms. Flores further recalled that she did not hear either person raise their voice or yell or scream. Neither did she hear any cries of distress. Ms. Flores confidently asserted that if someone had shouted “what the f***? I’m married” twice while standing at the door of Office 2, she would have heard it. Ms. Flores declared that she did not hear any such outburst. What Ms. Flores did hear was the door to Respondent’s office open at the end of his appointment. Then, in her peripheral vision, she saw Respondent walk with a woman wearing a blonde ponytail to the lobby. Ms. Flores recalled that the two were talking “in a friendly manner” as they passed her door. Shortly, thereafter, Respondent returned, and she met him in his office. Ms. Flores “particularly” recalled that Respondent commented that he had just offered his patient information about an auto mechanic. Respondent also mentioned that he met his patient’s spouse and dog. (L.P.’s dog was in the back seat of Mr. Hulett’s car.) Finally, Ms. Flores offered her observations of Respondent’s psychotherapy practice. She found him friendly and professional. He was well-liked and considered a good therapist. Ms. Flores also recalled that Respondent called her about a week after the incident and divulged that he had been accused of sexual misconduct. Ms. Flores testified that Respondent appeared shocked and surprised by the allegations. Dr. Roberta Wildblood was also present at Compass Counseling on July 19, 2017, when L.P. met with Respondent. Dr. Wildblood is a clinical psychologist who has provided services at Compass Counseling since 2015. On July 19, 2017, Dr. Wildblood was scheduled to meet a patient at 2:00 p.m. in Office 1 (her office). However, she did not recall whether she was actually present when L.P. walked out of Office 2 with Respondent. She did not see or hear L.P. in the building that afternoon. However, similar to Ms. Flores, Dr. Wildblood testified that voices can be heard through the office walls. Dr. Wildblood echoed Ms. Flores in that she is not able to discern exact words while sitting in Office 1. Nevertheless, she has heard exclamations from counselors and clients. She has also heard a ball bouncing in another office. Dr. Wildblood also offered her experience working with Respondent. She described him as professional and highly regarded by his peers. She stated that he is gentle, kind, and an effective counselor. For her part, Ms. Douglass-Barnes agreed that voices can be heard through the office walls at Compass Counseling. To try and maintain privacy, Ms. Douglass-Barnes recalled that counselors routinely used noise machines in their rooms, and a radio played in the reception area. To counterbalance Ms. Douglass-Barnes’ testimony regarding the effect of L.P.’s mental health conditions, Respondent called Earl P. Taitt, Jr., M.D., to testify. Dr. Taitt is a psychiatrist who currently runs a private practice in Orlando, Florida. He is board-certified in psychiatry and neurology, as well as forensic medicine. Dr. Taitt testified as an expert in psychiatry. At the final hearing, Dr. Taitt described in detail the effect of the various mental health conditions from which L.P. suffers. He also offered his opinion on how L.P.’s mental illnesses affected her interpersonal functions with Respondent. Dr. Taitt stated that he formed his impressions based on a review of L.P.’s extensive medical and psychotherapy records, as well as his observations of her deposition and live testimony. Conversely, Dr. Taitt was careful to explain that he was not opining on L.P.’s truthfulness during her testimony at the final hearing. Further, he readily acknowledged that he has never personally examined or interviewed L.P. Neither does he possess any personal information regarding L.P.’s interaction with Respondent on July 19, 2017. Dr. Taitt’s diagnostic impression, based on his limited observations, is that L.P. suffers from borderline personality disorder. Dr. Taitt identified signs of borderline personality disorder in L.P.’s history of impulsivity, intense mood changes including anger (her most significant mood symptom), and unstable interpersonal relationships. Dr. Taitt explained that someone with borderline personality disorder exhibits abnormalities of perception relating to interpersonal relationships. Borderline personality disorder creates an impediment to social interactions and a person’s ability to accurately perceive the social interaction. Dr. Taitt opined that L.P.’s borderline personality disorder directly affected her ability to accurately relate to Respondent in his office on July 19, 2017. Consequently, when Respondent informed L.P. that their counseling sessions would be coming to an end, Dr. Taitt suggested that L.P. might have felt “a real or imagined abandonment.” Borderline personality disorder would have caused L.P. to experience a greater vulnerability to the fact that Respondent was leaving her treatment to another therapist. Therefore, L.P.’s report of sexual abuse may have been her vindictive reaction to the imagined abandonment. L.P. was lashing out at Respondent. Dr. Taitt further remarked that borderline personality disorder may have caused L.P. to misrepresent the facts of her narrative based on how she (incorrectly) perceived her interaction with Respondent in his office. Dr. Taitt also commented on the wide range of psychotropic medications L.P. was taking before and after July 19, 2017. He expressed that these medications could have impacted L.P.’s psychological conditions. Dr. Taitt further noted that the medication dosages L.P. was prescribed indicate that she was suffering from severe symptoms. Finally, Dr. Taitt discussed L.P.’s decision to proceed with her five-day trip to St. Augustine instead of immediately reporting the incident. He believed that going on a vacation following a sexual assault is atypical of someone who has actually experienced such misconduct. If L.P. truly encountered the inappropriate touching, Dr. Taitt thought that she would have disclosed it earlier. Lastly, Respondent presented the testimony of several former clients or parents of minor clients (Jessica Rosado, Erika Ana Camacho, and Marta Lopez). These witnesses described Respondent’s counseling methods and personal interactions during his therapy sessions. All were highly complimentary of his professionalism, and stated that Respondent never acted inappropriately with them. None of these witnesses, however, had personal knowledge of the allegations in this matter or knew L.P. Respondent presented them primarily for mitigation purposes. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record does not establish that Respondent engaged in behavior “which [was] intended to be sexually arousing” or that he touched L.P.’s buttocks on July 19, 2017. Accordingly, the Department failed to meet its burden of proving that Respondent committed “sexual misconduct,” which would support discipline under section 491.0111 and rule 64B-10.002(1).
Conclusions For Petitioner: Andrew James Pietrylo, Esquire Kristen M. Summers, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 For Respondent: Carol C. Schriefer, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a final order dismissing the Amended Administrative Complaint against Respondent, Gerard Kruse. DONE AND ENTERED this 16th day of August, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 August, 2019.
The Issue The issue in the case is whether the allegations of the Administrative Complaint (as limited by the Notice of Limitation of Issues dated June 15, 2004) are correct, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed mental health counselor, holding Florida license number ME 5853. In approximately July 2001, the Respondent began to counsel a five-year-old female, allegedly the victim of sexual abuse by an uncle, the brother of the child's mother. The Respondent believed, based on information provided by the father, that the uncle resided with the child's mother. The child's father had custody of the child, and the mother had some type of visitation rights. In approximately November of 2001, the Respondent began counseling the child's father and his girlfriend for various family-related issues. Towards the end of 2001 or early 2002, the father and his girlfriend married. Although the Respondent testified at the hearing that the couple "seemed to have plenty of money to do certain things," including personal care and entertainment expenses, she apparently believed, based on what she was told by the couple, that they had financial difficulties. The couple resided in a home owned by the child's father. Apparently based solely on the couple's representations, the Respondent believed that the father was in arrears on house payments. One of the issues addressed in counseling was the father's concern that, were he to lose his house, the child would be returned to the mother's custody, where the uncle resided. Also apparently based solely on the couple's representations, the Respondent believed that the couple wanted to purchase a new house and that they needed $7,000 to buy the house. In March of 2002, the Respondent loaned the couple $7,000. The couple repaid within a few weeks a total of $9,000 to the Respondent. At the time of the $7,000 loan, the clients owed to the Respondent a balance of approximately $3,200 in unpaid professional fees related to therapeutic services provided to them by the Respondent. The Petitioner asserts that the $9,000 repaid to the Respondent included interest charges of $2,000. Petitioner's Exhibit number one is a copy of a document dated March 20, 2002, and apparently notarized on March 21, 2002. The document appears to require that the couple repay to the Respondent by not later than May 16, 2002, a principal amount of $7,000 plus $2,000 in "interest" for a total of $9,000. The genesis of the document is unclear. At the hearing, the wife testified that the document memorialized the agreement between the Respondent and the couple. The Respondent testified that she did not require preparation or execution of any loan documentation. The Respondent testified that the funds received from the couple included repayment of the loan plus payment of $2,000 towards the unpaid professional fees. Based on the candor and demeanor of the witnesses at the hearing, the Respondent's testimony as to the basis for the payment of the $2,000 is credited. Subsequent to the loan and repayment transactions, the therapeutic situation deteriorated between the Respondent and the couple, particularly as to the wife, who began to believe that the Respondent was romantically involved with the husband. The therapeutic relationship between the couple and the Respondent dissolved acrimoniously within a few months after the loan. At the hearing, the Petitioner presented the expert testimony of Dr. Owen Wunderman, a Florida-licensed mental health counselor, and Dr. Andrew Wenger, a Florida-licensed psychologist. Both testified as to the Florida Statutes and as to ethical standards adopted by the American Counseling Association (ACA) applicable to the fact situation at issue in this proceeding. The Respondent presented the expert testimony Dr. Barbara Herlihy, a professor at the University of New Orleans and a licensed professional counselor in Louisiana and Texas. Dr. Herlihy has been involved with the adoption of the existing ACA standards and has written texts related to the issue of dual relationships in counseling situations. As identified during the hearing, the ACA standards address the issue of dual relationships as follows: Avoid when possible. Counselors are aware of their influential positions with respect to clients and they avoid exploiting the trust and dependency of clients. Counselors make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. (Examples of such relationships include, but are not limited to, familial, social, financial, business, or other close personal relationships with clients.) When a dual relationship cannot be avoided, counselors take appropriate professional precautions such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs. Both Dr. Wunderman and Dr. Wenger testified that by making the $7,000 loan to her clients, the Respondent entered into a dual relationship (counselor and creditor) with the couple, and that in doing so, the Respondent failed to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance, as well as violated the ACA standards. Dr. Wunderman testified that there was a meaningful risk of non-repayment of the $7,000 loan, given that the clients were several thousand dollars in arrears in paying professional fees, thereby increasing the likelihood that the therapist/creditor would have to take legal action against the clients for repayment, an action likely to impair professional judgment or increase the potential risk of harm to the clients, whether or not legal action was actually initiated. Dr. Herlihy testified that she did not regard the fact situation at issue in this case as a dual relationship because she viewed it as a "one-time" short-term loan and that there was no evidence that the counseling relationship between the parties was harmed. Dr. Herlihy testified that she viewed the situation as a "boundary crossing." Dr. Herlihy acknowledged that short of loaning a client a small sum for cab fare, she was unaware of any mental health counselor making a loan to a client such as occurred in this case. She also acknowledged that she was not familiar with professional performance standards as specifically applied to Florida practitioners. The weight of the evidence establishes that Drs. Wunderman and Wenger are more familiar with the minimum standards of professional performance as measured against generally prevailing peer performance within the State of Florida. The testimony of Dr. Wunderman and Dr. Wenger is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding the Respondent has violated Subsection 491.009(1)(r), Florida Statutes (2002), and imposing a fine of $1,000, a reprimand, and a one-year period of probation. DONE AND ENTERED this 13th day of January, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2005. COPIES FURNISHED: Ellen M. Simon, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 William N. Swift, Esquire William N. Swift, Attorney at Law 901 Southwest Martin Downs Boulevard Suite 208 Palm City, Florida 34990 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy & Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C-08 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Raymond A. Baker, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a supervisor in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on September 2, 1997, a DCFS committee denied the request. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on September 19, 1993. On that date, Petitioner was arrested for the offense of committing a "battery upon his live-in girlfriend," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1993). Since the victim in that case was a person with whom Petitioner was then residing, the offense constituted domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes. Petitioner entered a plea of No Contest to the charge of "[b]attery-domestic" on October 12, 1993. Adjudication of guilt was withheld, he was fined $150.00, and he was placed on twelve months probation. In addition, he was required to complete "New Hope & Alcohol Counseling," and he was ordered to have no contact with the victim. Petitioner successfully completed all terms of his probation, including counseling courses in both spousal abuse and substance abuse. In October 1993, Petitioner began working at FSH in an Other Personnel Services position. Eventually, he attained the position of unit treatment rehabilitation senior supervisor I in Unit 4, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1993 offense, and on July 18, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner then accepted a position of fiscal assistant in the financial services section of FSH, a position having no contact with residents. He has continued working in that position pending the outcome of this case. Because of his desire to return to his former position, he has applied for an exemption from disqualification. Petitioner is a graduate of Florida State University with a degree in government and criminology. He also holds a Doctor of Jurisprudence from Howard University School of Law. He eventually plans to take the Florida Bar examination, and if he passes the examination, the Florida Bar will accept him for membership, notwithstanding his 1993 misdemeanor conviction. This assertion was not contradicted. In interpreting the statutory criteria which govern the granting of exemptions, the DCFS considers the following factors, among others, to be important. First, the applicant should not minimize the seriousness of the offense; he must express some remorse; and he must have insight into the seriousness of the incident and the risks involved. A three-person committee preliminarily denied the request in early September 1997 because at that time it believed that Petitioner minimized the incident, that he expressed little or no remorse, and that he had no insight into the seriousness of his offense. More than four years have elapsed since the criminal incident, a sufficient time for rehabilitation. Since that time, there have been no other blemishes on Petitioner's record. Except for a "bleeding toe," which was caused when the victim either cut it on broken glass or accidentally jammed it against the door, there was no injury to the victim. Petitioner has worked continuously at FSH since the incident, and he was described by former colleagues in Unit 4 as having a good rapport with patients and staff. According to co-workers, he also handled crises in the unit "in the right way." During the years 1995, 1996, and 1997, he received satisfactory evaluations from his supervisor. There is no evidence that Petitioner would present a danger to the residents if the exemption is granted. Petitioner's description of the circumstances surrounding the incident was not altogether accurate. This finding is made after considering the testimony of the victim who reluctantly testified on behalf of DCFS. For example, Petitioner recalled that the altercation ensued after the two had an argument over finances. However, it was established that it was caused when the victim attempted to break off the relationship and to leave the premises. In an effort to keep her from leaving, Petitioner tried to disrobe her. Also, he was extremely argumentative when speaking with the investigating law enforcement officer, and he refused to leave the premises when requested. According to the victim, Petitioner's verbally abusive behavior and his refusal to leave, rather than the altercation itself, ultimately led to his arrest that evening. While Petitioner was somewhat evasive and had no recollection about some of the facts surrounding the incident, this is probably attributable, at least in part, to his being highly intoxicated when the incident occurred. Petitioner expressed regret for his actions on the evening of September 19, 1993. His assertion that he has had no problems with alcohol since that night was not contradicted. Given the lapse of time since the incident, a record of continuous employment with the FSH with good evaluations, the completion of two counseling courses, and an expression of regret, the request for an exemption should be granted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 11th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
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, Charles Peavy, 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. This Petition was received by the Division of Administrative Hearings on July 15, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. That Department has requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The matter was originally set for hearing on August 14, 1981, and upon motion of the Petitioner, was reestablished for hearing on September 1, 1981. The hearing was conducted on the aforementioned date. In the course of the final hearing, the Petitioner offered no testimony or presentation in his own behalf. Respondent called as witnesses Robert Alcorn, Clinical Director for the mentally Disordered Sex Offender Program at Florida State Hospital Mike Pomeroy, Petitioner's attending clinical psychologist at Florida State Hospital Connie Smith, Petitioner's social worker at Florida State Hospital and Dr. M. M. Estes, Forensic Unit Psychiatrist at Florida State Hospital. Respondent's Exhibits 1 and 2 were admitted into evidence. At all times pertinent to this proceeding, Petitioner has been in the custody of the Respondent in keeping with orders of court and the authority of Chapter 917, Florida Statutes (1977). During that time the Petitioner has resided in the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in a hospital program for the benefit 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. Although the Petitioner has been subjected to a full range of treatment opportunities he has made no significant progress in the course of his stay, due to a persistent lack of motivation on his part. In the face of this circumstance, the Respondent has made a preliminary determination that it has exhausted all pertinent treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. Thus, the petitioner has requested the formal hearing which is the subject of this Recommended Order. The history of this case reveals that the Petitioner was originally admitted into the program from a commitment order of the court after being charged with the offense of involuntary sexual battery, that commitment coming in January, 1979. The Petitioner having failed to demonstrate reasonable progress, a decision was made in March, 1980, through a staffing conference to the effect that the hospital had exhausted treatment in the facility Florida State Hospital. Likewise, in a departmental screening conducted by the various clinical directors of the several sex offender programs in the State of Florida, held in May, 1980, it was concluded that the Petitioner should be returned to court for reason of exhaustion of treatment. On June 4, 1980, the Petitioner was recommitted to the sex offender program by order of court and the Florida State Hospital reinstituted its treatment of the Petitioner. In January, 1981, a staffing was held on the Petitioner and a decision was reached that the hospital had exhausted treatment for the benefit of the patient. This decision was followed by a decision in February, 1981, by the interdepartmental screening committee of several sex offender programs within the State, to the effect that the overall system had exhausted treatment. Following the February decision, counsel for the Petitioner requested a formal hearing; however, before that hearing could be convened, the Petitioner determined that he did not wish the hearing and was returned to court in April, 1981. The Petitioner was then returned to the Florida State Hospital by order of court on May 22, 1981, and has remained in the hospital since that time. At present, the Petitioner's underlying condition is diagnosed as that of a person with an antisocial personality disorder, severe, with a diagnostic profile which places him in the category of sex offender within the meaning of Chapter 917, Florida Statutes (1979). Contributing to this diagnostic impression is a severe case of substance abuse related to alcohol and substitutes for that chemical, together with a dependence on the psychotrogic medication Mellaril. While the patient has been involved in the program at Florida State Hospital, and has been exposed to the primary therapy of that hospital, namely group therapy, with certain adjunctive therapy and has been treated by numerous therapists, there has been no discernible success. The principal reason for the failure of the patient Peavy has been his lack of motivation, which is an essential prerequisite to success in the program. In this respect, in the course of his stay in the program, the Petitioner has not demonstrated an interest in making progress in the sex offender program. Mike Pomeroy, his primary therapist from May, 1980, until early 1981, through his testimony identified some of the features of the Petitioner's condition. As established by Pomeroy, the main problem with the Petitioner is that difficulty with substance abuse related herein, with the sex offense problem being an underlying feature of that difficulty. In this area, the Petitioner has been willing to discuss sex offenses to include the one for which he had been placed in the program and the others, but only in a superficial way. Pomeroy discovered that the substance abuse of Mellaril dates from approximately the 17th birthday of the patient, who was born on October 19, 1952. During the time of Pomeroy's involvement as therapist it has been necessary isolate the patient from any substance which might give him a "high." The patient has been known on five or six occasions to drink floor wax, 409 cleaner, etc., and at other times the staff has been suspicious that the patient has consumed this type material, in view of the patient's demeanor. While Pomeroy was the primary therapist, the Petitioner used the psychotropic medication Mellaril to maintain a mood, as opposed to a treatment for traditional thought disorders. Attempts to cut back on the amount of the Mellaril dosage have led to hostile episodes in which the patient made threats to hurt other persons. On one occasion, in an attempt to possibly have the patient relocated in a sex offender program in the South Florida State Hospital, the State tried to decrease the Mellaril from the dosage of 600 mgs. per day out of a possible 800 mgs., with 200 mgs. being an average dose. After one or two days, it was determined that the Petitioner was not making an effort to reduce his dependence on the medication Mellaril and it was necessary to isolate the Petitioner due to his behavior. (The Florida State Hospital was unable to effectuate a transfer to the South Florida State Hospital because that latter institution was unwilling to accept a person who had drug dependence, such as that of the Petitioner.) The reason for the isolation in this attempt to wean the Petitioner from the use of Mellaril, was due to confrontations with staff members. Pomeroy has spent more time with this patient than with any other patient in the history of Pomeroy's involvement as a therapist. He finds the Petitioner to be manipulative in playing members of the staff against each other, in the sense of reporting that one staff member has allowed him certain liberties, when in fact that has not proven to be true. The Petitioner, during his stay has agitated other patients in the sex offender program by his hyperactivity and constant attempts to borrow cigarettes from those patients and to do so in an intimidating way, and the Petitioner has even on one occasion thrown a chair at a patient. The Petitioner's attendance in the group therapy sessions which are the most vital phase of the treatment process has been irregular. When he has attended, his discussion in the course of the session has been of matters unrelated to the treatment program. Petitioner has also failed to attend adjunctive therapy sessions, notwithstanding the fact that he was allowed his choice of sessions to attend. In particular, he was allowed to attend the alcoholic rehabilitation program within the hospital and his attendance in those sessions was poor. This performance on the part of the patient has led therapist Pomeroy to comment that the Petitioner has done less to participate in the programs than any patient Pomeroy has known. This participation is essential especially for those persons who are suffering from substance abuse. The Petitioner has been made aware of the consequences of not participating in the sense of his possible return to court and court actions which might lead to further incarceration and more importantly of long term problems which the Petitioner would have in life should he fail to come to grips with his problems. Nonetheless, progress is not forthcoming, and the sexual problem which the Petitioner has is still in evidence, together with the substance abuse. The Florida State Hospital staff has also consulted professionals outside the sex offender program who might be able to deal with the problem with substance abuse however, the attempts have met with no success, in that the outside professionals have indicated that no progress will be made without proper motivation. In particular, the use of Antabuse as a deterrent to alcohol consumption would not be appropriate in view of the fact that this substance is dangerous if the patient is not well motivated. Other observations which are accepted, as made by therapist Pomeroy, establish that the Petitioner has only spoken about himself in one group session that the Petitioner continues to find it difficult to talk about things of a personal nature and that the Petitioner has no ability to get close to people as a means of breaking down the barriers necessary to come to some understanding of the myriad problems confronting him. In summary, from the point of view of Pomeroy and as accepted, the sex offender program has been exhausted in dealing with the Petitioner s circumstance and although the Petitioner continues to meet the definition of disordered sex offender, the placement of Petitioner in the programs administered by Respondent is not only inappropriate but is counterproductive. On the question of alternative placement, Pomeroy is of the persuasion that an institutional setting such as the prison system would allow the Petitioner to "get along about the same as here," meaning the Florida State Hospital. Connie Smith, a social worker who dealt with the Petitioner between January, 1981, and April, 1981, found his participation in group therapy, out of twenty (20) sessions, to be one of seven (7) appearances, within which he only stayed fifteen (15) minutes on two (2) occasions. Then he attended, he sat away from the group and offered no active participation. (At the time that he was attending the sessions, the Petitioner knew that a decision had been made on exhaustion of treatment and he expressed the desire to leave the hospital setting.) Staff psychiatrist, Dr. M. M. Estes, in the course of his testimony, concurred with the diagnostic impression of antisocial personality disorder, severe. He finds that the Petitioner gets along well with other persons as long as he is having his way. He finds that the Petitioner is intolerant of any regimented style of life, such as the hospital setting. In speaking to the issue of the use of Mellaril, the amount of 600 mgs. is a high amount and through the process of the De utilization of that substance, over the years, the patient now suffers from a side effect known as tardive dyskinesia. This condition and its appearance is close to that of Huntingtons-Cohrea. In this patient, the condition has manifested itself as an involuntary movement of the tongue and other muscles. Peavy has been advised not to use this medication as a mild palliative, this advice coming from Dr. Estes. As stated before, attempts have been made to have Peavy withdraw from the use of this medication, but when this has been attempted, Peavy has threatened violance in the sense of indicating his willingness to "tear up the place." Nonetheless, Dr. Estes is of the persuasion that the Petitioner's neurological condition as described will continue to get worse if he persists in the use of the psychotropic medication. Dr. Estes' observations established that the patient has the mental capacity to recognize what he is doing and he is found to be in touch with reality and in touch with time and knowledgeable of right and wrong, in the theoretical sense. Nevertheless, the Petitioner has never had to suffer the consequences of his criminal acts and remains unconvinced of those consequences. According to Dr. Estes and as established through his testimony, the patient is not benefiting from the sex offender program of the Department of Health and Rehabilitative Services and there is no real likelihood of improving in his condition through involvement in that program. Moreover, continued participation will only hinder the patient. Dr. Estes identified the fact that drug dependence does not impair the ability to make progress in the program, but the nature of the underlying diagnosis of antisocial personality is one which calls for external control and the need to learn conformity and the fact that the conformity is not threatening. The patient has not achieved those improvements in that he becomes frustrated and exasperated easily, as established by Dr. Estes. At this time, there is no sign of organic degeneration in the patient as a result of substance abuse, but that potential exists, per Dr. Estes. The report of Dr. Paul Deitchman, dated December 1980, was also admitted. Dr. Deitchman is a clinical psychologist, who examined the Petitioner upon request of Petitioner's counsel. In his report, Dr. Deitchman is supportive of the position of the Respondent on the question of returning the Petitioner to court for reason of exhaustion of treatment.
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 Charles Peavy, and that said Charles Peavy be returned to the committing court for further disposition. DONE and ENTERED this 28th day of September, 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 28th day of September, 1981. COPIES FURNISHED: Ken Driggs, Esquire Assistant Public Defender Post Office Box 671 Tallahassee, Florida 32302 Ted Mack, Esquire Florida State Hospital Chattahoochee, Florida 32324 William Ploss, Esquire Assistant Public Defender 1351 Northwest 12th Street Miami, Florida 33125
