The Issue The issue in this case is whether the Department of Professional Regulation (Department) should grant the application of the Petitioner, Carolyn Raney McCarthy, n/k/a Carolyn Raney Stoia, for licensure as a clinical social worker by examination.
Findings Of Fact On or about October 31, 1989, the Petitioner applied to the Respondent, the Department of Professional Regulation, for licensure as a clinical social worker under the provisions of Chapter 88-392, Laws of Florida (1988), which allows a person to apply to the Department, instead of the Board of Clinical Social Work, for a determination whether the person met the requirements for licensure under Chapter 490, Florida Statutes (1985), that were in effect before Chapter 491, Florida Statutes, went into effect on October 1, 1987. The parties agree that the Petitioner meets all the requirements for licensure by examination except that the Department disagrees with the Petitioner's allegation that she has two years of experience as a provider of behavioral therapy "under the supervision of someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" The Department concedes only that the Petitioner has had seven and a half months of experience as a provider of behavioral therapy under the supervision of Anne Kremer, who "meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" In addition to her experience under the supervision of Anne Kremer, the Petitioner has had at least 16 and 1/2 months of experience as a provider of behavioral therapy at Tri-County Addictions Rehabilitation Services, Inc., in Winter Haven, Florida, under the supervision of J. William Herchig. Herchig received a Master of Social Work degree from the Florida State University in June, 1979, with a major emphasis in administration. Herchig's graduate field work during the last two quarters of his degree program was at the Lakeland Outpatient Clinic of Tri-County Alcoholism Rehabilition Services, Inc., (later to become Tri-County Addictions Rehabitation Services, Inc.), where he was hired as Clinic Director in approximately August, 1978. As clinic director, approximately half of Herchig's time was spent in the direct service of patient or client health care and about half was spent on supervisory and administrative duties. Herchig was not supervised by anyone as to his provision of direct client services. But, during his first 16 weeks on the job, Herchig was supervised by Patricia Furnival, his counterpart, as Clinic Director, at the Avon Park Outpatient Clinic of Tri-County. Furnival instructed him in supervision techniques, program management, organization pattern, and the like, in the way of on-the-job training for the job of clinic director. As a result of the nature of his job opportunity as Clinic Director of the Lakeland Outpatient Clinic, Herchig declared the major emphasis of his degree program to be in the area of administration, and he participated in the degree program's seminar on administration in conjunction with his graduate field work. Herchig's vague testimony about the course work taken by him and his fellow participants in the masters degree program did not prove that all participants took identical course work (not including the field work, with accompanying seminar.) Herchig's masters degree did not have a major emphasis or specialty in direct patient or client health care services. The Petitioner also did not prove that Patricia Furnival was "someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985)]," at the time she supervised Herchig's graduate field work. The Petitioner proved that both Herchig and Furnival have certificates from the Academy of Certified Social Workers (ACSW), but it was not proven that ACSW certification necessarily signifies that the certificate holder has two years of "experience as a provider of behavioral therapy . . . under the supervision of someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" ACSW certification requires two years of full-time, paid, supervised, post-master's or post-doctoral experience in social work practice, but "practice" is defined by the requirements to include "supervision, planning, administration, consultation, research, and teaching," and documentation of clinical supervised experience is not required for ACSW certification. For this reason, the Department and the Board of Clinical Social Work properly have not accepted, and do not accept, ACSW certification as conclusive proof of eligibility for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Clinical Social Work enter a final order denying the Petitioner's application for licensure by examination. RECOMMENDED this 26th day of October, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 26th day of October, 1990.
Findings Of Fact The Petitioner, Patricia Ann Dewees (hereinafter "Dewees"), seeks to take the examination for licensure as a marriage and family therapist. In an effort to comply with the experience requirements which are prerequisites to eligibility to take the examination, Dewees applied for, and was accepted into, the post graduate program at the Samaritan Center in Fort Lauderdale, Florida. The Samaritan Center is a nationally and locally recognized non-profit corporation dedicated to the delivery of affordable mental and emotional health care to persons in need. Originally begun as a center in which highly trained clergy would provide psychotherapy and marriage and family counseling, the center is now non-sectarian. It hires only licensed or license eligible professional therapists. The Samaritan Center is one of 67 affiliates nationwide of the Samaritan Institute in Denver, Colorado. The center is dedicated to a holistic approach to therapy, including the balancing of physical, emotional, and spiritual elements of treatment. Dewees participated in a three year post-master's program at the Samaritan Center in Fort Lauderdale. Her participation in that program is the basis upon which she claims to have the necessary experience to take the licensure examination for marriage and family therapist. 2/ Regarding her experience at the Samaritan Center, Dewees has documented slightly more than 1500 hours of supervised experience during each of the three years. Dewees spent at least fifty percent of that time, and perhaps as much as sixty-seven percent of that time, engaged in attending classes, attending training sessions, attending workshops, and participating in activities directly related to classes, training sessions, and workshops. These activities do not constitute practice of the profession of marriage and family therapy. At best, they constitute preparation for the practice of that profession. During her participation in the program at the Samaritan Center, Dewees engaged in a number of other activities that did constitute practice of the profession of marriage and family therapy. These activities included such things as providing counseling and therapy to clients, as well as supervision of such counseling and therapy, preparation directly related to such counseling and therapy, and paperwork and administrative duties directly related to such counseling and therapy. These types of activities comprised no more than half of the supervised experience Dewees received at the Samaritan Center. During her participation in the program at the Samaritan Center, Dewees documented 550 hours of direct individual, group, or family counseling, including at least two of the following categories of cases: unmarried dyads, married couples, separating and divorcing couples, family groups including children. During her participation in the program at the Samaritan Center, Dewees received at least 156 contact hours of supervision, spread out more or less evenly over the three year period. This supervision was supervision of all of her experiences at the Samaritan Center, including the experiences that did not constitute practice of the profession of marriage and family therapy.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case concluding that the Petitioner, Patricia Ann Dewees, has not met the necessary experience requirements and denying her application to take the licensure examination for Marriage and Family Therapist. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 1st day of October, 1990. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1990.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, as amended, and, if so, what penalties should be imposed.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since June 5, 1986, a Florida-licensed clinical social worker, holding license number SW1666. S. G. became a patient of Respondent's in the fall of 1992, when she was experiencing marital difficulties. Her then husband, from whom she was separated, was already a patient of Respondent's. Pursuant to Respondent's suggestion, S. G. saw Respondent as a patient once a week. S. G. and her husband met with Respondent both as a couple and separately. At first, during his sessions with S. G., when they were alone, Respondent's demeanor was "pretty professional"; however, as time passed, "boundaries were crossed." Respondent began to talk to S. G. about his personal life. For example, he told her about the extramarital affairs he had had, claiming that these instances of infidelity had occurred "when he was highly stressed." After making this claim, he added that he "had been very, very stressed lately." In or about late April of 1993, when S. G. was still a patient of his, Respondent telephoned S. G.'s residence and asked S. G.'s son, who had answered the telephone, if he could speak with S. G. S. G.'s son thereupon handed S. G. the telephone and S. G. began conversing with Respondent. During their conversation, Respondent told S. G. that he "wanted to engage in phone sex." When S. G. declined to participate in such activity, Respondent asked her to visit him that evening at his office, which she agreed to do. As promised, that evening, after dark, S. G. went to Respondent's office. When she arrived, at around 8:00 or 9:00 p.m., Respondent was in his office seeing another patient. S. G. remained in the waiting area outside Respondent's office until the other patient left and Respondent came out and invited her to return with him to his office. Upon entering the office, S. G. sat down in a chair. Respondent thereupon took off his tie and asked S. G. if she trusted him, to which S. G. replied, "Yes." Respondent then tied S. G.'s hands behind her back with his tie. The two wound up on the floor together, where they engaged in sexual intercourse. They were interrupted by the ringing of the telephone in the waiting area. Respondent left the office to answer the telephone. He joked that it was probably his wife "wondering where he was." When he returned to the office, Respondent tossed S. G. a few tissues to use to clean herself off. He then asked S. G. (whose car was parked in front of the building in which Respondent's office was located) to drive him to his car (that was parked behind the building), which she did. They both then went their separate ways. S. G. was "very upset" following this encounter. Respondent telephoned her the following morning and told her he needed to see her. He met her later that day at a delicatessen. When S. G. ordered only a cup of coffee, Respondent told her that she was a "cheap date." During their conversation in the delicatessen, Respondent told S. G. that what had happened the night before "had to remain between the two of [them] and no one else could know." On a subsequent occasion, approximately a month or so later, in or about early June of 1993, when she was still a patient of Respondent's, S. G. had another encounter with Respondent in which the two of them engaged in sexual activity. This meeting took place in the evening, at approximately 9:00 or 10:00 p.m., in S. G.'s vehicle, which was parked near a "video store" from which Respondent had rented "some videos" that he needed to return. After returning the "videos," Respondent joined S. G. in her vehicle. Upon entering the vehicle, he commented "about how [S. G.] looked." The two then engaged in oral sex, after which Respondent stated that "somebody's wife wasn't going to get any that night." Following this second instance of sexual activity between Respondent and S. G., S. G. began to feel that she was "being taken advantage of, manipulated, and betrayed" by Respondent. She therefore stopped seeing him. In addition, she filed a civil action against Respondent and gave a statement to the police concerning her relationship and activities with Respondent. At the time of the final hearing in this case, S. G.'s civil action against Respondent had been settled and S. G. had received from Respondent the money he had agreed (as part of the settlement) to pay her. S. G.'s statement to the police led to criminal charges being filed against Respondent in Broward County Circuit Court Case No. 94-17857CF. Respondent was initially charged with three counts of sexual conduct by a psychotherapist, in violation of Section 491.0112, Florida Statutes, 3/ to which he pled not guilty. Pursuant to a "plea bargain," the charges were reduced to three counts of simple (misdemeanor) battery, to which Respondent pled guilty "in [his] best interest." 4/ Respondent was adjudicated guilty and, as to each count, placed on consecutive one-year terms of probation. The following is an excerpt from the transcript of the proceeding at which Respondent entered his guilty plea to these reduced charges: THE COURT: Is there a stipulation to the factual basis of the plea? MR. DUTKO [Defense Counsel]: Yes[] sir[,] as to the offense of battery. THE COURT: Okay. What facts would the State bring forth if the case went to trial? MR. SHANE [Prosecutor): The State would allege that on or about the 27th day of April, 1993, on two separate occasions, at two separate times and locations, the defendant did unlawfully touch or strike [S. G.] without her permission. With respect to Count III, as amended in the information, on or about the 1st day of June, 1993, the defendant did touch or strike [S. G.] without [her] permission or consent. THE COURT: Court finds that the defendant received advice of competent counsel with whom he is satisfied[;] [t]hat he knowingly, voluntarily, and intelligently waived the constitutional rights contained in the plea form[;] and [that] he freely entered into this plea agreement. The Court finds the defendant competent. There's a factual basis and the Court hereby accepts [the change] of plea and makes the agreement to enter the plea and waiver of rights an exhibit for the purpose of the court file. Any reason why sentence should not be imposed? MR. DUTKO: No, sir. THE COURT: As to case 94-17857 as far as amended Court adjudicates the defendant guilty of Count I, II and III, which has been amended to Misdemeanor Battery. The defendant is placed on one year probation on each count. All counts are to run consecutive[ly], rather than concurrent[ly], with the following special conditions[:] $143.00 court cost[s], and that's to be paid at minimum equal monthly increments over the period of probation; [r]andom urinalysis to determine the presence of a controlled substance[;] [t]wo hundred hours of community service, and that may be performed at any nonprofit entity at a minimum and equal monthly increments over the period of his three years of probation[;] [n]o contact directly or indirectly with [S. G.], her family or her place of business[;] [t]hat the defendant may travel for business purposes within Dade, Broward and Palm Beach[;] [t]he defendant is permitted to go to Orlando, during the periods that have been set forth[;] [a]nd the Court has no objection to the defendant, at some future date, . . . com[ing] in and request[ing] further travel once the Department has been given an opportunity to be heard. Is that [the] sum and substance of the agreement? MR. DUTKO: It is Your Honor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order finding Respondent guilty of the violations of Section 491.009(2)(c), (k), (q), and (s), Florida Statutes, described above and disciplining him for having committed these violations by fining him $2,000.00, suspending his license for a period of six months, and placing him on probation for a period of one year commencing immediately following the conclusion of the period of his suspension. DONE AND ENTERED this 27th day of July, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 27th day of July, 2000.
The Issue The issue is whether Respondent, Scott Rhodes, should be terminated from employment with Petitioner, City of Clearwater (City), for violating City policies as alleged in the City's Termination and Dismissal Notice dated February 16, 2018.
Findings Of Fact Parties and Jurisdiction The City is a government employer governed by a City Council. A City Manager oversees the City’s operations. Pursuant to the Code of Ordinances of the City of Clearwater (City Code), the Clearwater Civil Service Board has adopted policies and rules regulating all aspects of the civil service employee positions within the City.1/ Mr. Rhodes began his employment with the City as a Solid Waste worker on September 6, 2004. He worked in the same position until his termination effective February 20, 2018. Approximately 85 percent of the current Solid Waste staff is African-American. Mr. Rhodes describes himself as “white” and “not black.” At all times relevant, Mr. Rhodes’ supervisor was Joseph Farrar, who is Caucasian. Mr. Farrar’s ultimate supervisor is Earl Gloster, an African-American. Mr. Gloster is the department head of Solid Waste and reports directly to the City Manager. Mr. Rhodes’ Disciplinary History Prior to his termination, Mr. Rhodes had been involved in a number of incidents with co-workers requiring counseling or discipline. In late November 2011 and early 2012, Mr. Rhodes reported he was being harassed by a co-worker in Solid Waste, Feth Benbelgacem. His complaint was investigated by the City’s HR Department and a report was issued. Although the City found Mr. Benbelgacem had violated the City’s Workplace Violence Policy, the report concluded: No one was able to corroborate the specific claim that Mr. Rhodes made that Mr. Benbelgacem [threatened him]. A number of those interviewed feel that Mr. Rhodes has animosity because Mr. Benbelgacem is permitted to operate the equipment which causes Mr. Rhodes to “nitpick” Mr. Benbelgacem’s work performance, thereby instigating their interaction. This behavior on the part of Mr. Rhodes has been reported to the supervisors and although Mr. Rhodes has been directed to cease the behavior and worry about himself, the behavior allegedly continues. * * * Although Mr. Rhodes has been instructed by his supervisors to stop delegating and criticizing tasks relating to Mr. Benbelgacem, the behavior seems to continue and should it not stop, the supervisor should address it through the Performance and Behavior Process. In November 2016, Mr. Farrar issued Respondent a coaching and counseling form for “violence in the workplace” based on a verbal altercation Mr. Rhodes had with an African-American co-worker. The form signed by Mr. Rhodes states: Outcome of Meeting: Mr. Rhodes understands that verbal misconduct is as serious as physical conduct. Verbal attacks can lead to physical confrontations just as this situation did. In the future, verbal attacks on a co-worker’s family or loved ones will not be tolerated. At some point after the November 2016 counseling, when someone did something he did not like, Mr. Rhodes would either tell that person that he was going to give that person a specific number of lashes or he would direct a co-worker to distribute a specific number of lashes to that person. Mr. Rhodes also told his co-workers to “kiss the ring,” implying they were subservient to him. Mr. Rhodes would talk about certain co-workers being on his “hit list.” When asked who was on his “hit list,” Mr. Rhodes named the same African-American co-worker involved in the November 2016 incident. In early 2017, Mr. Farrar overheard Mr. Rhodes saying he would give certain co-workers lashes. Mr. Farrar believed these comments were inappropriate and could have been interpreted as racially offensive. He also overheard Mr. Rhodes talking about his “list.” As a result, Mr. Farrar met with Mr. Rhodes and instructed him to stop making such remarks. Although Mr. Farrar did not specifically tell Mr. Rhodes these comments violated any specific policy, he did tell Mr. Rhodes “that he needed to watch what he was saying around newer people because they might not know how to take it the way people that had been around him do.” At the final hearing, Mr. Rhodes admitted he told other employees he would give them lashes, they were on his hit list, and they should kiss the ring, but claimed he was joking. In April 2017, Mr. Farrar placed Mr. Rhodes on a “Development Plan” after repeatedly being warned by Mr. Farrar about failing to properly clock in and out, and accruing unauthorized overtime. The Development Plan was to remain in effect from April 28 to October 28, 2017, and required Mr. Rhodes to meet personally with Mr. Farrar on “Payday” Fridays and comply with the City’s timeclock regulations. Mr. Rhodes defied orders to meet with Mr. Farrar and otherwise failed to adhere to the Development Plan. As a result, Mr. Rhodes received a one-day suspension (referred to as a “decision-making leave day”) and was referred to the Employee Assistance Program. The Development Plan was also revised and extended to remain in effect until March 2018. Meanwhile, Mr. Rhodes continued to make the same type of inappropriate remarks referring to “lashes” and the “hit list.” In October or November 2017, Mr. Farrar had a second meeting with Mr. Rhodes and again instructed him to stop making these types of remarks. The Terminating Incident On January 17, 2018, Mr. Farrar received a complaint from Allan Craig, an African-American Solid Waste worker, that Mr. Rhodes claimed he was the “emperor of all black people.” According to Mr. Farrar, Mr. Craig reported the incident just after it was made and was visibly shocked. Mr. Farrar referred the incident to the City’s Office of Diversity and Equity Services (“ODES”), a division within the HR department tasked with handling and investigating complaints of the City’s anti-discrimination policies, as well as potential employee violations of state and federal employment laws. Mr. Craig testified that on the day in question, Mr. Rhodes did not like something an African-American co-worker said. In turn, Mr. Rhodes told Mr. Craig to give this co-worker “50 lashes,” which Mr. Craig understood to be a whipping. Mr. Craig, said, “no, we [have] to stick together.” It is unclear to whom Mr. Craig is referring when he said “we”--“Solid Waste workers” or “African-Americans.” Regardless, in response, Mr. Rhodes made the statement, “I’m the emperor of black people.” Mr. Craig did not respond, but instead immediately left the worksite to report the comment to Mr. Farrar. Although Mr. Rhodes corroborates Mr. Craig’s version of events, he disputes saying “I’m the emperor of black people.” Instead he claims he told Mr. Craig “I am the emperor of Solid Waste”; and after Mr. Craig said, “no, we [have] to stick together,” Mr. Rhodes replied, “Allan, even black people have to answer to somebody.” Mr. Rhodes saying, “I’m the emperor of black people” is more believable than him saying “Allan, even black people have to answer to somebody.” The undersigned rejects Mr. Rhodes’ version of events for a number of reasons.2/ First, Mr. Rhodes statements do not seem to flow naturally. Second, Mr. Craig’s demeanor was more credible, and his version of the facts leading up to the “emperor” statement was consistent with the testimony of the other witnesses. Moreover, Mr. Deris, the ODES investigator, testified that Mr. Rhodes admitted to making the statement, “I am the emperor of black people” when questioned during the investigation. Mr. Gloster testified that during the pre-termination meeting he had with Mr. Rhodes, “I asked him specifically as to the comment that was made . . . that he was the emperor over all black people, and he said, yes, that he said it.” Even assuming Mr. Rhodes’ version is correct, it is equally offensive; it still implies African-Americans at Solid Waste need to answer to him. Based on the competent and credible evidence, the undersigned finds that Mr. Rhodes made the statement, “I am the emperor of black people,” and this statement was reasonably offensive to Mr. Craig. Grounds for Dismissal Based on the ODES investigation and after meeting with Mr. Rhodes, Mr. Gloster made the decision to terminate Petitioner. Thereafter, the City issued the Dismissal Notice citing numerous violations of City policy and regulations: City Policy 3201.2, Equal Employment Opportunity Policies (EEO); City Policy 3704.1, Workplace Violence Prevention Policy; and Relevant portions of the City’s Performance and Behavior Management Program Manual (PBMP), which set standards for City workers in the areas of personal responsibility, excellence, and integrity. Chapter 13, section 3, of the Civil Service Board Rules and Regulations outlines the grounds for discipline, including terminations. That section provides in pertinent part: Reasons for Suspension, Demotion, and Dismissal--Whenever practical, employees will be given reasonable opportunity to bring their performance and/or behavior up to acceptable standards pursuant to the procedures and rules of the City’s performance and behavior management programs. However, employees may be subject to disciplinary action up to and including immediate dismissal for the following acts, including but not limited to specifically cited examples: * * * (e) Commitment of a flagrant offense, including harassment or discrimination or abusive conduct or language toward coworkers, City officers, or the public. * * * (l) Failure to conform to the dictates of corrective action, including but not limited to failure or inability to comply with an agreed-upon “development plan,” or when the City believes that an employee is willful in refusing to adhere to establish rules, regulations, or guidelines. (emphasis added). Violation of EEO Policy The City’s EEO policy states in relevant part: It is the policy of the City of Clearwater that no person shall be unlawfully discriminated against with regard to recruitment, selection, appointment, training, promotion, retention, discipline or other aspects of employment because of any consideration of race, color, religion, national origin, age, disability, marital status, or gender (including conditions of pregnancy and sexual harassment), or genetic or family medical history information as defined by the Genetic Information Nondiscrimination Act. Mr. Rhodes’ “lashes” comments could reasonably be interpreted as a reference to slavery, and be racially offensive to African-American (and other) employees. As such, Mr. Rhodes continued references to “lashes,” even after being warned, violated the City’s EEO policy. Mr. Rhodes statement that he, a white person, was the “emperor of black people” clearly violates the City’s EEO policy. Violation of the City’s Workplace Violence Prevention Policy The City’s Workplace Violence Prevention Policy states in relevant part: Policy: The City of Clearwater will not tolerate violence, threats, harassment, intimidation, and other disruptive behavior in our workplace [.] All reports of incidents will be taken seriously and will be dealt with appropriately. Individuals who commit such acts may be removed from the premises and may be subject to disciplinary action, criminal penalties, or both. Definitions: Workplace violence is any physical assault, threatening behavior, or verbal abuse occurring in the workplace. Such behavior can include oral or written statements, gestures, or expressions that communicate a direct or indirect threat of physical harm. Although there was no evidence anyone believed Mr. Rhodes’ “lashes” or “hit-list” statements were real threats of violence, these statements could be considered a form of intimidation, disruptive behavior, and verbal abuse under the policy. These comments, however, when taken in the context of Respondent’s history of verbal altercations with co-workers, and coupled with the fact he was told that these statements may be misinterpreted, constitute violations of the City’s Workplace Violence Prevention Policy. Violation of the City’s Employee Standards The PBMP contains the following relevant standards and instructions: INTEGRITY STANDARDS The following standards represent Integrity issues of such a serious nature that immediate formal discipline, up to and including termination, may be recommended. Violation of the City Workplace Violence Policy. Violation of the City Equal Employment Opportunity (EEO) Policy. * * * EXCELLENCE STANDARDS We will present a professional image through actions, dress, speech and behavior. We will strive for excellence and continuously learn and make improvements. We will learn from mistakes, modify behavior and recommend procedural changes to improve operations and processes. Again, Mr. Rhodes’ statements described above when considered cumulatively and in context clearly violate the standards for employee integrity. Mr. Rhodes’ continued use of these comments, even after being repeatedly counseled, violates the standards for professional image through actions and speech; continuously learning and improving; and modifying behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Dismissal Notice are sustained, and that Respondent be terminated as a City employee. DONE AND ENTERED this 6th day of September, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 6th day of September, 2018.
Findings Of Fact Jules Montouri is a retarded adult. Rahya Montouri is his mother. Prior to March, 1980, Jules Montouri resided at a facility maintained by the Department of Health and Rehabilitative Services in Gainesville, Florida. Jules Montouri's mental capacity is retarded to an extent that he will never be able to completely care for himself and meet his own needs. He can, however, with proper training become capable of living a somewhat normal life with minimal supervision. Since March, 1980, Jules Montouri has resided at "Hillcrest House." Hillcrest House is an adult group residential facility maintained by the Provider, Sheltered Community Residence, Inc. The Provider is under contract with the Department of Health and Rehabilitative Services to provide a residential educational setting for retarded adult males. The concept of the program offered by the Provider is to move clients out of heavily restricted institutional environments into less restrictive ones. The program is designed to train clients to meet as many of their own needs as they can, and to gradually move them into less and less restrictive living situations. The Provider has sought to teach Jules Montouri to live in harmony in a minimally supervised environment, and to do his own cleaning and cooking. The Provider's goal with respect to Jules Montouri would be to move him into an apartment-type living facility with several other retarded adult males with a minimal degree of supervision. The Provider's program is an appropriate one for Jules Montouri. Except for problems that have developed between the Provider and Rahya Montouri, the program offered by the Provider would have a reasonable prospect of successfully training Jules Montouri to live in a substantially independent manner. Rahya Montouri disagrees with the goal of the Provider's program to steer Jules Montouri toward a level of substantial independence. She has objected to programs designed to train Jules Montouri for marginal employment, and to programs designed to teach him how to cook for himself. While Rahya Montouri maintains that she wants her son to remain as a resident in the Hillcrest House facility, she has found very little but fault with the program. Since Jules Montouri has been a client of the Provider, Rahya Montouri has complained on a constant basis about virtually every aspect of the Provider's program. She visits her son often at the facility, and has complained verbally to staff members on virtually every visit. She has made many complaints through telephone conversations with members of the staff. She has written numerous letters to complain about the facility, the program, other clients, and the staff. For example, she has expressed suspicion that her son has engaged in homosexual conduct and has implied that members of the staff may have been involved. These suspicions and accusations appear to have been based upon no evidence whatever. Mrs. Montouri's antagonistic attitude toward the Provider's program has become disruptive to the program. The Provider's staff at the Hillcrest facility has spent from five to ten hours per week since Jules Montouri has been a client dealing with complaints from Mrs. Montouri. On at least two occasions, Mrs. Montouri has violated the rights of other clients at the facility by going through their belongings looking for items that she asserted had been taken from her son. Mrs. Montouri's antagonism toward the program has affected the ability of Jules Montouri to participate in it. Jules is caught in the unfortunate cross fire between the program and his mother. As can be expected, it has confused him considerably. Recently, he has told several of the Provider's staff members and social workers from the Department of Health and Rehabilitative Services that he wishes to leave the program. Mrs. Montouri has complained to the Human Rights Advocacy Committee for Retardation. This committee is a group of volunteers who serve to investigate potential emotional, psychological, or sexual abuse of clients. Mrs. Montouri's complaints have resulted in investigations by the Human Rights Advocacy Committee of the Provider's program. The investigations have not revealed any instances of actual abuse. The investigations have, however, had a demoralizing effect upon the staff of the Provider's program, and could seriously damage the program's reputation. Mrs. Montouri's antagonistic attitude toward the Provider's program has become abusive. The time that the Provider's staff has had to devote to her complaints is unjustified. Her antagonistic attitude has rendered it difficult for her son to progress in the program. Her complaints have demoralized the program's staff and could eventually injure the program's reputation. While the program offered by the Provider is an appropriate one for Jules Montouri and could serve to prepare him to live the most normal life possible for him, it is not practical that he continue in the program.
The Issue Whether Petitioner, Drew Breznitsky (“Petitioner” or “Mr. Breznitsky”), should be issued a license as a mental health counselor intern; Whether Petitioner is unable to practice with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of materials or as a result of any mental or physical condition pursuant to section 456.072(1)(z), Florida Statutes; and Whether Petitioner is unable to practice as a mental health counselor intern with reasonable skill or competence as a result of any mental or physical condition or by reason of illness; drunkenness; or excessive use of drugs, narcotics, chemicals, or any other substance, in violation of section 491.009(1)(p), Florida Statutes.
Findings Of Fact Background 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. The Board is the state agency that implements and enforces regulations regarding the registration of mental health interns in the State of Florida. Mr. Breznitsky is an applicant for licensure as a mental health counselor intern. Mr. Breznitsky has a bachelor’s degree in human services, and a minor in psychology. In March 2020, he earned a degree in counseling, with an emphasis in clinical mental health counseling, from Webster University. Petitioner’s cumulative GPA upon graduation was 3.550. He also holds a master’s degree in clinical mental health counseling and marriage and family therapy. Mr. Breznitsky is the owner of Beachside Recovery Interventions and Consulting (“BRIC”), for which he has received positive online reviews for his work. BRIC provides interventions, peer support groups, educational seminars, human trafficking investigation, and expert witness services. As part of his position at BRIC, Mr. Breznitsky has testified as an expert witness in substance use, mental health assessment, and treatment services in six different counties in Florida. Mr. Breznitsky also provides services to the Brevard County Sheriff’s Office Gang Unit, Drug Unit, and Sex Crimes Unit. He sits on several task forces including the Brevard County Opioid Task Force, the Brevard County Human Trafficking Task Force, and the Brevard County Prevention Coalition. Application Process On May 18, 2020, Mr. Breznitsky submitted his application for registration as a mental health counselor intern to the Board. On May 21, 2020, the Board informed Petitioner that his application was not complete and that additional documentation and information was needed related to prior disciplinary action and criminal history. Mr. Breznitsky timely submitted the requested documentation and his application was completed on July 6, 2020, when the Board received official transcripts from Webster University. The Board obtains criminal history background screening for applicants in addition to any crimes disclosed by the applicant. On August 6, 2020, pursuant to notice, Mr. Breznitsky appeared before the Board at a scheduled Board meeting. Members of the Board questioned Mr. Breznitsky regarding his criminal and educational discipline history at the August 6, 2020, Board meeting. The Board, acting within their authority, passed a vote that required Mr. Breznitsky to appear at one of the next two board meetings, and to provide an evaluation from the Professional Resources Network (“PRN”) indicating that he is able to practice as a registered mental counselor intern with reasonable skill and safety. On November 5, 2020, Mr. Breznitsky appeared before the Board at a Board meeting as instructed. At the November 5, 2020, Board meeting, the Board voted to deny Mr. Breznitsky’s application for registration as a mental health counselor intern. On November 19, 2020, the Board filed its Notice in this matter. It is undisputed that Mr. Breznitsky has met all requirements for licensure as a mental health counselor intern. However, there was a question about whether he could practice with reasonable skill and safety to patients. Fact Witness Testimony Petitioner presented multiple witnesses to attest to his ability to practice with reasonable skill and safety based upon personal observations and experience with Petitioner. The witnesses presented were familiar with working with him in various environments. Jack Platt, a personal injury and criminal defense attorney, has been practicing law for more than 27 years. Mr. Platt represented Mr. Breznitsky in a criminal matter. Due to this representation, Mr. Platt has knowledge of Mr. Breznitsky’s prior criminal issues. Mr. Platt currently refers his criminal defense clients with substance abuse issues to Mr. Breznitsky to help them with seeking treatment and recovery. Mr. Breznitsky testifies in court on behalf of these clients to help redirect their sentences from incarceration to treatment. While Mr. Platt does not socialize with Mr. Breznitsky, of most importance in this matter, he sees him in professional settings, including court. Mr. Platt credibly testified that he has never seen Mr. Breznitsky impaired by use of drugs or alcohol. When asked if he believed that Mr. Breznitsky would pose a danger to the public health or safety and if he should be granted the ability to practice as a mental health counselor intern, Mr. Platt unequivocally testified that he didn’t believe he would be a danger and that the profession would benefit from him being a part of it. Specifically, Mr. Platt testified that “Mr. Breznitsky gives these people these tools to deal with, not only the clients but the family. And he helps them move forward and become contributing members of society.” Mr. Platt’s testimony is credited. Dr. Beth Mahoney, another witness familiar with Mr. Breznitsky in a professional setting, is a licensed medical doctor and has been practicing as a psychiatrist for over 25 years. Dr. Mahoney’s practice focuses on patients with addiction issues, trauma, and post-traumatic stress disorder (“PTSD”). Dr. Mahoney practices in the same building, and in collaboration, with Mr. Breznitsky. Mr. Breznitsky’s business refers approximately four to five patients to Dr. Mahoney each month. Dr. Mahoney sees Mr. Breznitsky at the office daily. They also interact and discuss patients. She has never seen Mr. Breznitsky impaired by use of drugs or alcohol, nor has she seen him do anything that would make her doubt his ability to be a mental health counselor intern. Moreover, Dr. Mahoney believes that he would be very good at practicing as a mental health counselor intern as he is able to evaluate patients quickly and get them the help they need. Dr. Mahoney’s testimony is found to be credible. Respondent has asserted that Dr. Mahoney has a financial interest in the success of Dr. Breznitsky being granted a license. However, the undersigned finds that the business relationship has no bearing on the issue of whether he is able to practice with competency or reasonable skill and safety. She credibly testified that she has never observed him impaired and she does not believe that he would pose a danger to others. In addition, she believes he would be an asset to the profession as a mental health counselor intern. Moreover, the referral relationship is currently with Mr. Breznitsky’s company and it would not be impacted whether he is granted a license as he is not required to hold a license to continue the relationship. Gregory Richter, who has served in law enforcement for approximately 20 years, created the “Coming Clean” documentary after the death of his brother from a drug overdose. Mr. Richter had interactions with Mr. Breznitsky both during the filming of the documentary and for showings, both locally and out of state, of the documentary after its completion. In addition to interactions related to the documentary, Mr. Richter has had social interactions with Mr. Breznitsky as well. Due to the creation of the documentary, individuals with substance abuse issues request Mr. Richter’s help. Mr. Richter recommends Mr. Breznitsky to these individuals. Mr. Richter testified that he has never seen Mr. Breznitsky in a professional or personal setting impaired on drugs or alcohol, and does not believe he would be a danger to public health or safety should he be granted his registered mental health counselor intern license. Mr. Richter’s testimony is found to be credible. Susan Deane, licensed mental health counselor, a licensed marriage and family therapist, and a licensed qualified supervisor, also provides her services to BRIC. Mr. Breznitsky interned with Ms. Deane during his graduate program, and she has been his mentor since that time. As part of her work with BRIC, Ms. Deane reviews and approves Mr. Breznitsky’s substance abuse and mental health evaluations. Prior to signing any evaluation, Ms. Deane also discusses the patient and the evaluation with Mr. Breznitsky. The evaluation discussions routinely occur four to five times per week. Thus, Ms. Deane has many opportunities to assess his competency in the professional setting. She credibly testified that “he’s extremely thorough.” Ms. Deane would serve as Mr. Breznitsky’s qualified supervisor if he is granted a license. Christopher Kiesel is a private investigator who has focused primarily on criminal defense and due process investigations for approximately 10 years. Mr. Kiesel was instrumental in helping Mr. Breznitsky start the operation of BRIC and in helping him establish relationships with people he would need to perform his job effectively. Mr. Kiesel works with Mr. Breznitsky on criminal defense cases when they share a common client. Mr. Kiesel has never seen Mr. Breznitsky impaired by use of drugs or alcohol. Mr. Keisel has never seen Mr. Breznitsky do anything that would make him doubt Mr. Breznitsky’s ability to be a mental health counselor intern nor does he believe that if Mr. Breznitsky’s license was granted that he would be a danger to public health or safety. Mr. Kiesel’s testimony is also credited. Based on the testimony of five fact witnesses, there was no testimony of client care or attendance issues. There was no evidence of any incidents that would raise any concern that Petitioner was impaired in any way while working or in a personal setting. The Board offered no witnesses or evidence to rebut the testimony of Petitioner’s lay witnesses regarding any incidents that demonstrate Petitioner is unable to practice with reasonable skill and safety or whether he is competent to practice as a mental health counselor intern. PRN Review The Board directed Petitioner to undergo an evaluation with PRN to determine whether he is safe to practice with reasonable skill. Mr. Breznitsky contacted PRN as directed by Board. Petitioner first submitted to an intake interview with the PRN Intake Case Manager, Kim Simon. In addition to the intake interview, PRN obtained available information from the Board. After the intake interview, the intake team met to review and discuss Mr. Breznitsky’s file. The members of the intake team included: Dr. Polles; William Jacobs, M.D (associate medical director); Delana Torrance (case manager supervisor); Ms. Simon (intake case manager); and Miranda Ivy (administrative support). Dr. Polles was the only member from the intake team who testified at the final hearing. Based on the review, the intake team was concerned that Mr. Breznitsky could be impaired and an independent evaluation was necessary. PRN then notified Mr. Breznitsky about the intake team’s determination and he was given the names and contact information for three evaluators approved by PRN whom he could choose for the evaluation. Petitioner selected Dr. Lawrence Wilson to perform the independent evaluation. A proper evaluation to diagnose an alcohol or substance use disorder requires obtaining a past history, current use information, and validating information with objective testing. The intake interview and information provided to PRN from the Board was forwarded to Dr. Wilson, along with a letter which requested what was needed for PRN to make their determination regarding Petitioner’s ability to practice safely. The Board presented Dr. Wilson as an addiction medicine expert who evaluated Respondent. He is board-certified in addiction medicine. Dr. Wilson was a urologist until substance abuse impaired his ability to practice medicine, and he entered the PRN program. After successful completion of the PRN program, he pursued addiction medicine. He completed a two-year fellowship in addiction medicine at the Drug Abuse Comprehensive Coordinating Office (DACCO) in Tampa from 2010 to 2012. He worked at DACCO and eventually became its associate medical director. He currently serves as the CEO and medical director at Seven Summit Pathways, a private treatment facility in Tampa, which is a residential and outpatient medication-assisted substance abuse treatment facility. As the medical director of Seven Summit Pathways, he is responsible for patient’s medical care. Dr. Wilson also routinely conducts evaluations for PRN. Dr. Wilson has held teaching positions in addiction medicine at the University of Florida in the Department of Psychiatry, and in the Department of Psychiatry and Neurobiology at the University of South Florida. He is a certified medical review officer and is qualified to interpret laboratory test results for substances detected in laboratory test samples. Mr. Breznitsky submitted to an in-office urine test, which detects the presence or absence of certain drugs and substances. The urine tests detect the presence of alcohol for 24 hours prior to testing and alcohol metabolites for two to three days after drinking. Mr. Breznitsky’s test returned negative. On September 18, 2020, Dr. Lawrence Wilson conducted an independent medical evaluation of Mr. Breznitsky. The evaluation included a personal interview and examination of Mr. Breznitsky, and collection of hair and blood samples for forensic drug and alcohol analysis. On October 2, 2020, Dr. Wilson’s office collected another hair sample to perform a second drug test. The first hair sample, while being presumptively positive for cocaine, did not have sufficient hair in the sample for a definitive determination. The second hair test was positive for cocaine and cocaethylene. Dr. Wilson’s evaluation was based on his examination and interview; the reports on the three drug tests he performed on Respondent; the PRN intake information; interviews of witnesses identified by the Petitioner; a psychological report prepared by Petitioner’s psychologist Dr. Eyring; and Petitioner’s prescription for alprazolam,2 a benzodiazepine. Dr. Wilson diagnosed Mr. Breznitsky with alcohol use disorder of moderate to possibly severe based on his evaluation. He testified that Mr. Breznitsky consumed alcohol in larger amounts over a longer period of time than intended; his inability to control his alcohol use issues resulting in a failure to fulfill a major obligation at work; and his recurrent alcohol use in situations in which it was hazardous, i.e., driving while under the influence of alcohol. To support his opinion, he identified incidents from Mr. Breznitsky’s past history but could not point to any incidents that 2 The brand name for Alprazolam is Zanax. demonstrated Mr. Breznitsky is unable to practice with reasonable skill and safety.3 Dr. Wilson’s evaluation was provided to PRN upon completion and reviewed by the intake team to determine the best decision for public safety and Petitioner. Dr. Polles testified that Dr. Wilson addressed the intake team’s concerns in his evaluation and his documented findings gave support to his final diagnoses and recommendations. PRN accepted Dr. Wilson’s findings. PRN provided a copy of Dr. Wilson’s evaluation to Mr. Breznitsky. Petitioner disagreed with Dr. Wilson’s findings and recommendations. Due to his dissatisfaction with Dr. Wilson’s findings, Mr. Breznitsky was offered a second evaluation by another evaluator approved by PRN. However, Petitioner declined a second evaluation. Mr. Breznitsky was then offered alternative treatment solutions, which Mr. Breznitsky also declined. Based in part on Dr. Wilson’s opinion and the intake team’s review of Mr. Breznitsky’s history, PRN determined Petitioner is not able to practice and is a serious danger to the safety and welfare of the public. 3 Dr. Wilson testified that he based his decisions regarding his diagnosis on several factors that are based on incidents that occurred more than 10 years prior to his evaluation of Mr. Breznitsky. His testimony was as follows: Q: … You say that he uses in larger amounts or over a longer period than intended, what did you base that on? A: Well, he’s drinking large shots of 151 rum. He’s drinking excessive amounts of alcohol. Q: Can you tell me the last time he drank 151 rum? A: No. And like I told you before it’s moot. Q: … What major role obligations has he failed to fulfill? A: He had issues in school, well, I don’t know if he lost his employment. He certainly lost his job. He lost his occupation because he was arrested. … Q: In the last ten years, what major role obligations has he failed to fulfill? A: Don’t know. Q… In the last ten years, when has he used in physically hazardous conditions? A: Don’t know. By letter dated October 27, 2020, Dr. Polles communicated to the Board that Dr. Wilson diagnosed Mr. Breznitsky with alcohol use disorder, moderate to severe; stimulant (Cocaine Type) use disorder, mild to moderate; sedative hypnotic anxiolytic use, evaluate for use disorder; history of generalized anxiety disorder; and stressors including professional licensure, employment, and substance use. She further communicated that Dr. Wilson recommended a residential, partial hospitalization program with housing. Petitioner requested an agreement to intensive outpatient treatment. PRN denied the request. Dr. Bowen’s Testimony Petitioner presented expert testimony of Dr. Duncan Bowen to refute Dr. Wilson’s opinions. Dr. Bowen, a psychotherapist, is a licensed mental health counselor, the same professional license that Mr. Breznitsky would ultimately pursue. Dr. Bowen has been practicing for more than 40 years with experience in mental health and substance abuse issues. Dr. Bowen is not board-certified in addiction medicine or addiction psychiatry, and he does not hold the kinds of certifications Dr. Wilson holds. However, he has performed evaluations of licensed healthcare providers. In addition, Dr. Bowen has testified as an expert witness hundreds of times with the majority of those cases being for drugs, alcohol, and mental health issues. Dr. Bowen disagreed with Dr. Wilson’s findings, including his conclusion that Mr. Breznitsky has a lifetime alcohol use disorder. Dr. Bowen conducted an evaluation of Mr. Breznitsky. Dr. Bowen met with Mr. Breznitsky on three separate occasions for interviews, he considered documents that he received; conducted independent interviews with Mr. Breznitsky's colleagues; obtained past history; performed an in-office urine alcohol and substance screening test (Precision Plus Urinalysis - 13 Panel Screen); and conducted a Minnesota Multiphasic Personality Inventory-2 (“MMPI-2”) personality test of Petitioner. Dr. Bowen testified that the MMPI-2 test is one of the most researched inventories in the United States to determine an individual’s personality traits and one of the most recognized tests within the legal system. Dr. Bowen completed training on administering the MMPI-2 test and interpretation of its results. Additionally, Dr. Bowen’s doctoral thesis involved the administration and interpretation of MMPI-2 test results. During his professional career, Dr. Bowen has administered the MMPI-2 thousands of times. The early part of his career involved administering and interpreting MMPI-2 results for applicants to the Brevard County Sheriff’s Office to ensure that they were psychologically and emotionally fit to be sheriff’s deputies. He currently routinely administers and interprets the MMPI-2 when he is working with clients with potential mental health or substance abuse issues. Dr. Bowen collected the urine sample for the Precision Plus urine test. He performed the test by standing outside the office restroom with the door cracked while Petitioner was in the restroom. After collection of the sample, Dr. Bowen read the reactive panel on the specimen cup, which was negative for all substances. The Precision Plus test screens for alcohol ingestion within the previous 24 hours and cocaine for three days. After the evaluation, Dr. Bowen concluded that “Mr. Breznitsky is not a danger to himself, children, or the community at large. He has the ability to make sound assessments and decisions in life matters. He is not a danger to clients with whom he may provide mental health or substance abuse counseling.” Similarly, at the final hearing, Dr. Bowen testified that in his opinion, Mr. Breznitsky would not be a danger to public health and safety and that he would be able to practice safely if he were granted his mental health counselor intern license. The Board disputed the MMPI-2 validity and results. Dr. Aufderheide testified that Dr. Bowen’s report did not indicate whether Dr. Bowen gave Mr. Breznitsky required instructions on taking the test, and he disputed whether a mental health examination was performed prior to the test being administered. However, Dr. Bowen testified that he conducted a mental health exam on Mr. Breznitsky and gave him the required instructions prior to administering the MMPI-2. Further, he testified that he made sure Mr. Breznitsky was alone in a secure room, with periodic monitoring, while the test was being conducted. The Board disputed the results of the MMPI-2 because the results were reported as “marginally valid.” The Board suspected the report was “marginally valid” due to Mr. Breznitsky painting himself in a favorable light. The Board challenged Dr. Bowen’s testimony on the basis that he relied upon the results of the “marginally valid” MMPI-2. Dr. Bowen testified that when formulating his opinion, he took into consideration that the MMPI-2 results were “marginally valid,” but did not rely solely on the result in his evaluation of Mr. Breznitsky. Dr. Bowen testified that he considered the MMPI-2, his clinical observations during the evaluation, and his 30 years of experience working with drug, alcohol, and mental health clients to reach his conclusion that Mr. Breznitsky was safe to practice as a registered mental health counselor intern. Respondent also challenged the urinalysis test conducted by Dr. Bowen on the basis that he collected a urine sample that was not physically “observed.” Dr. Polles questioned the results of the panel test used by Dr. Bowen and explained that the panel tests are screening tools, inaccurate, and not appropriate for independent evaluations for substance use disorders. The question raised was whether there was an opportunity for tampering with the test results without someone directly observing the production of the urine sample. Dr. Bowen credibly testified that the method he used to administer the test was standard industry practice among private practitioners. There was also no credible evidence offered at hearing to demonstrate that Mr. Breznitsky tampered with the urine sample. The urinalysis test administered by Dr. Bowen returned negative for substances tested on that date and the results are accepted. Dr. Polles’ Testimony Respondent offered the testimony of Alexandria Polles, M.D., the medical director and CEO of PRN. PRN is designated as one of the State of Florida’s impaired practitioner programs. It serves as a consultant to the Florida Department of Health on matters of practitioner impairment. The mission of PRN is to protect public health, safety, and welfare. It oversees the process for evaluation of professionals referred to the program, if needed, and provides monitoring of recommended treatment. Dr. Polles is certified by the American Board of Psychiatry and Neurology, the American Board of Addiction Medicine, and is a Fellow of the American Psychiatric Association. Dr. Polles has served on the faculty of the University Medical Center at the University of Florida, and at the Osteopathic School of Medicine in Hattiesburg, Mississippi. She has authored a number of peer-reviewed articles, contributed to texts, and given many lectures. Dr. Polles testified that evaluators approved by PRN must have experience in the area of concern for the evaluation. Moreover, evaluators approved by PRN are required to attend an annual meeting to review what their evaluations must include. Dr. Polles explained that in addition to the collection of information, PRN requested certain laboratory tests to assist in the evaluation, which included an “observed” urine test, a blood test for alcohol use, and a HairStat test. “Observed” urine tests means that a healthcare provider actually observes urine directly collected in the specimen cup. Dr. Polles testified that “observation” prevents substitution or tampering with the specimen by the donor. Dr. Polles did not evaluate Mr. Breznitsky, as she does not perform evaluations. Thus, her testimony does not offer a first-hand assessment of whether Mr. Breznitsky could practice as a registered mental health counselor intern with reasonable skill and safety. However, Dr. Polles accepted Dr. Wilson’s conclusion that Petitioner is not safe to practice without treatment. She further testified that based on her training, alcohol use disorder is a lifetime illness. Dr. Aufderheide’s Testimony Respondent also presented Dr. Aufderheide as an expert. Like Dr. Polles, he did not evaluate Mr. Breznitsky and offered no opinions related to whether he has any mental health or substance abuse disorders or whether Mr. Breznitsky could practice as a mental health counselor intern with reasonable skill and safety. Dr. Aufderheide has been chief of mental health services with the Florida Department of Corrections for 17 years. Dr. Aufderheide ensures that all psychiatrists, psychologists, and mental health professionals are appropriately licensed and credentialed. He has been licensed as a psychologist in Florida since 1993, and is Board-certified in correctional psychology. Dr. Aufderheide was offered as an expert in treating mental health practitioners for mental health disorders and substance abuse, and co- occurring morbidities. Dr. Aufderheide’s testimony focused in part on the MMPI-2 test administered by Dr. Bowen. Similar to Dr. Bowen’s explanation, Dr. Aufderheide testified that the MMPI-2 is a psychological test that measures psychopathology, psychological and behavioral dysfunction, and personality traits. Dr. Aufderheide believes the MMPI-2 is not intended to be used by professionals to interpret mental status evaluations and other tests. Although Dr. Aufderheide was concerned with the evaluation performed by Dr. Bowen, those concerns were persuasively addressed through Dr. Bowen’s testimony at the final hearing. Thus, the undersigned finds that Dr. Bowen’s evaluation and conclusions are credited. Dr. Abbas’ Testimony Dr. Abbas, a forensic toxicologist, testified at the hearing as well. He works for United States Drug Testing Laboratories (USDTL). USDTL tests biological samples for drugs, as well as alcohol biomarkers. Dr. Abbas was familiar with the testing of the urine sample provided by Mr. Breznitsky. Dr. Abbas is currently the manager of the certification department that reports all the positive results reported out of USDTL’s laboratory. The parties stipulated to the validity of the two test results, i.e., the HairStat Specimen No. 7374951 (the hair test) and the PEth test (blood test), which were both processed by USDTL. The PEth test uses a sample of dried blood. Regarding the PEth test, Dr. Abbas’ testimony was critical as it pertained to Dr. Wilson’s opinion regarding the frequency and the last time Mr. Breznitsky consumed alcohol. Most important, his testimony rebutted Dr. Wilson’s testimony pertaining to the ability to determine the frequency of consumption of alcohol during a specified time period. Specifically, he testified that “he could only report if the test is positive or negative. He could not state how much alcohol a person consumed in the last 28 days; he could not state how frequently a person consumed alcohol in the last 28 days; and he could not state the quantity a person consumed in the last 28 days.” Dr. Abbas determined that Petitioner’s PEth test results were positive for phosphatidylethanol at 181 nanogram per milliliter. The PEth test results also referenced a confirmed cutoff of 20 nanograms per milliliter. The cut off is an industry-wide value that is used as a threshold, and any specimen measured at 20 and above is considered to be positive. The initial testing was done on a similar instrument that the confirmatory testing is done using liquid chromatography mass spectrometry. Dr. Abbas further testified to the results confirmed by USDTL from Petitioner’s second hair sample taken by Dr. Wilson’s office. The results were reported positive as follows: 1) Benzoylecgonine: positive 524 pg/mg; 2) Cocaine: positive 2595 pg/mg; and 3) cocaethylene: positive 773 pg/mg. Dr. Abbas explained that hairs are a reservoir matrix where drugs collect and degrade over time. Therefore, whenever a reservoir matrix is examined, you cannot pinpoint when somebody used it, how much they used it, and how often they used it. It simply reflects that an individual used a certain substance within the three-month period prior to collection and/or was exposed to it. Dr. Abbas’ ultimate conclusions from the test results for Mr. Breznitsky were that they were negative for: amphetamines, opiates, PCP, and cannabinoids. The results were presumptive positive for cocaine and were confirmed positive for: benzoylecgonine, cocaine, and cocaethylene. Mr. Breznitsky’s Testimony Personal and Criminal Background Mr. Breznitsky acknowledged that he has a criminal history and a past with substance use. His criminal history began more than 10 years prior to submitting his application for registration as a mental health counselor intern. The most recent criminal conviction involving alcohol, occurred in 2007. Mr. Breznitsky’s substance use, which contributed to his criminal history, stemmed from stress related, in part, to loss of key family members. He testified that his mother, grandmother, and grandfather died within a two-year time period. Due to the stress of the deaths, Mr. Breznitsky began drinking heavily. Following the separation from his long-time girlfriend of five years, Mr. Breznitsky began drinking more heavily on a daily basis. Petitioner subsequently had three Driving Under the Influence (DUI) arrests within an 18-month period. His first arrest occurred in April 2005. He was placed on probation, completed a DUI Level I course, and had a six-month licensure suspension. Mr. Breznitsky’s second DUI occurred in 2007. His third DUI occurred a few days after he posted bail from his second DUI and both cases were consolidated. Additionally, Mr. Breznitsky reported that, while in high school, he was arrested for Criminal Mischief while drinking alcohol. In 2011, while still on probation, he was a passenger in a car driven by his friend who was pulled over. He was charged with a Violation of Probation (“VOP”) for being out of the county and not informing his Probation Officer. There was no evidence offered at hearing that he was intoxicated or that alcohol was involved. He was arrested for the VOP offense and spent nine and a half months in prison. There has been no subsequent involvement with law enforcement for DUI or involving alcohol since 2007. Mr. Breznitsky has presented persuasive evidence that he has changed his life since his last known criminal offense. Mr. Breznitsky has owned BRIC for a number of years, and has received awards from the community for his work. Mr. Breznitsky has been married and has been approved to adopt his two children. To the contrary, the Board did not present any competent substantial evidence of behavior that demonstrated Mr. Breznitsky has not been rehabilitated from his criminal past since his last criminal offense. Mr. Breznitsky’s Treatment History Petitioner admitted that “he used cocaine when he drank alcohol; he never really experimented too much outside of that but ultimately just became a completely different person, and I drank to numb my emotions. I drank to cope with trauma; I drank to cope with depression, shame, guilt, family stuff, the loss of my mother.” In 2009, Petitioner was required to complete a 12-month Residential program where he was treated for alcohol use disorder at Phoenix House in Ocala. Mr. Breznitsky eventually continued treatment at Phoenix House on a Partial Hospitalization Plan/Intensive Outpatient Program basis, completing a total of 18 months of treatment. He was placed on five years’ criminal probation and had his driving privileges suspended for five years with the requirement that he have an interlock device placed for six months once returning to driving. His treatment did not involve treatment with a psychiatrist nor was he prescribed psychotropic medications. While in treatment, he had an introduction to Twelve Step Recovery and attended Narcotics Anonymous meetings. Mr. Breznitsky remained sober during his 18 months at Phoenix House and continued to abstain from alcohol for approximately 3 to 4 years, after which time, abstinence from alcohol was no longer required as part of his treatment. Mr. Breznitsky’s Recovery Plan Mr. Breznitsky testified that while in treatment, he focused on PTSD, depression, self-harm, and personal mental health recovery because those were the stressors that led to his alcohol use. He indicated that he regularly sees his therapist, checks in with his supervisors, maintains close friends, and ensures that he engages in self-care. Additionally, at hearing, Respondent testified that he currently maintains his sobriety by regularly eating breakfast each morning, meeting with his pastor on a weekly basis, attending church on Sundays, regularly exercising, and using a sensory deprivation tank. Dr. Aufderheide was asked to opine on whether Petitioner’s recovery plan of attending church, regularly engaging with colleagues and close friends, surfing, exercising, and refuge recovery, would be recognized by the medical community. He did not offer an opinion regarding the efficacy of the treatment plan recommended by Dr. Wilson. However, he suggested that a recovery plan should include drug testing. Ultimate Findings of Fact In general, Dr. Wilson was concern with the frequency and amount of alcohol Mr. Breznitsky was consuming. His concerned stemmed from his belief that Mr. Breznitsky had recently drank with such frequency that it would affect his ability to practice as a mental health intern with reasonable skill and safety. However, there was not sufficient competent substantial evidence to demonstrate that Mr. Breznitsky exhibited behavior to demonstrate he was impaired. The positive test results for alcohol and coathelylene is significant. However, the positive test results alone do not prove Mr. Breznitsky is unable to practice safely as a registered mental health intern. Dr. Wilson testified that he diagnosed Mr. Breznitsky with alcohol use disorder moderate to severe, because he believed Mr. Breznitsky consumed alcohol in larger amounts over a longer period of time than intended; his inability to control his alcohol use issues resulting in a failure to fulfill a major obligation at work; and his recurrent alcohol use in situations in which it was hazardous, i.e., driving while under the influence of alcohol. He also diagnosed him with cocaine-type use disorder of mild to moderate severity. At the final hearing, Dr. Wilson maintained his opinion that Mr. Breznitsky was not safe to practice as a registered mental health intern based in part on his “suspicions that [Mr. Breznitsky’s] use was more recent than three months ago because now the three-month window has moved two weeks additional yet he’s still testing positive.”4 In addition, they were based 4 At the final hearing, Dr. Wilson testified regarding his suspicions on more than one occasion when formulating his opinion about Mr. Breznitsky’s ability to practice as a registered mental health intern. His testimony about his suspicions include, but are not limited to, the following: Q: Yeah let’s take them one at a time and look at some of the comments that you made in those and what they were based on. Dimension 1, what was your conclusion there? A: I felt he was at a moderate risk for being intoxicated based on the discrepancy between what he was telling me and the laboratory result of his PEth test. They were incongruent. And I believe I did not know for sure how much this gentleman was drinking. So I claimed he was at moderate risk, and I felt he was event at moderate risk for going through alcohol withdrawal if he keeps drinking based on the fact that they didn’t know how much he was drinking, but I knew he had a very high PEth test.” in part on assumptions that were not proven at the hearing and more importantly, on facts that were based on incidents from Mr. Breznitsky’s past history that occurred at least 10 years before his evaluation. Dr. Wilson’s opinions appeared to be influenced by his honest and genuine belief that Mr. Breznitsky would benefit from the care and treatment he could receive as a participant in PRN. He may well be correct. At best, he demonstrated that Mr. Breznitsky was not able to practice with reasonable skill and safety more than 10 years before his evaluation. However, the issue is not whether there is suspicion or a risk of Mr. Breznitsky being unsafe to practice, but rather the issue is whether he is unsafe to practice at this time. Nothing in the record demonstrated that Mr. Breznitsky was a danger while working with clients or patients. The evidence taken as a whole is not sufficient competent and substantial evidence that Mr. Breznitsky is now unable to practice as a registered mental health intern with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, or chemicals, or any other type of material, or as a result of any mental or physical condition.
Conclusions For Petitioner: Stephen B. Burch, Esquire Smith & Associates Suite 540 709 South Harbor City Boulevard Melbourne, Florida 32901 For Respondent: Timothy Frizzell, Esquire Robert Antonie Milne, Esquire John Benjamin Fricke, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling issue a final order granting Petitioner's application for registration as a mental health counselor intern, which may include conditions to ensure Petitioner’s continued sobriety. DONE AND ENTERED this 11th day of February, 2022, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2022 Timothy Frizzell, Esquire Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399 Robert Antonie Milne, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Stephen B. Burch, Esquire Smith & Associates Suite 540 709 South Harbor City Boulevard Melbourne, Florida 32901 John Benjamin Fricke, Esquire Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399 Kimberly Marshall, MPH, JD Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399
