The Issue Did the Respondent, Zafar S. Shah, M.D. (Dr. Shah), commit the violations alleged in Counts 7-10 of the Administrative Complaint dated June 26, 2000, and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is the agency charged with regulating the practice of medicine in the State of Florida. Dr. Shah is and, at all times material hereto, has been licensed to practice medicine in the State of Florida, having been issued license number ME0071706. Dr. Shah is board-certified in internal medicine. Dr. Shah was born, and spent the first 29 years of his life, in Pakistan. Dr. Shah is 35 years of age. Dr. Shah began working at MidTown Clinic in Zephyrhills, Florida, in October 1996, and continued to work at MidTown Clinic until he was terminated in 1999. Tammy Rachel (Tammy) worked as a certified nursing assistant at MidTown Clinic from June 1996 until she was terminated in March 1999. Tammy worked with Dr. Shah as his Medical Assistant during Dr. Shah's tenure at MidTown Clinic. At all times material to this proceeding, Tammy was married to, and lived with, Corey Rachel, her husband. Although T. H., Tammy's oldest daughter, age approximately 15 years, was at all times material hereto, living in the Rachel household, her biological father was the custodial parent. Tammy's two younger daughters also lived with their mother in the Rachel household. At all times material to this proceeding, Dr. Shah did not have any family living in the United States. After Tammy began working for Dr. Shah, she and Dr. Shah became close friends. As a result, Tammy, along with her husband and her daughters, including T. H., spent a great deal of time with Dr. Shah. Tammy and her family treated Dr. Shah as if he was a member of their family. Tammy and her family, including her husband, spent almost every weekend with Dr. Shah at his home or on outings with Dr. Shah. Dr. Shah visited Tammy's home on week nights during this period of time. This visitation, both weekend and week nights, between Dr. Shah and Tammy's family occurred between December 1996 and August 1999. Initially, the relationship between Dr. Shah and Tammy was a working relationship. However, in February 1997, Dr. Shah and Tammy began a sexual relationship which lasted until March 1999. When confronted by Corey Rachel about her relationship with Dr. Shah, Tammy denied having a sexual relationship with Dr. Shah. In fact, Tammy did not tell Corey Rachel of her sexual relationship with Dr. Shah until after August 5, 1999. During the period of time that Dr. Shah and Tammy's family were visiting back and forth, Dr. Shah established a close relationship with T. H., in that Dr. Shah: (a) gave more attention to T. H. than the other girls; (b) spent more time with T. H. than with the other girls; and (c) spent time alone with T. H. when she cleaned his house and at other times at the mall, etc. Tammy was aware of the relationship between Dr. Shah and T. H. and that T. H. was alone with Dr. Shah on occasions. However, there is no evidence that this relationship was intimate or in any way sexual in nature, notwithstanding the testimony of Tammy or Corey Rachel to the contrary, which I find lacks any credibility in this regard. A prescription in the name of T. H. with a date of January 18, 1999, for 60 250-milligram tablets of Erythromycin, an antibiotic, was presented to the Winn Dixie Pharmacy by Corey Rachael. The prescription was filled on January 20, 1999, and picked up by Corey and Tammy Rachel on that same date. The prescription carried what appeared to be the signature of Dr. Shah. However, Dr. Shah denies that he ever prescribed Erythromycin for T. H. or that he wrote or signed the prescription in question. Tammy gave the medication to T. H., which T. H. used, including the refills, for the acne on her face. However, it was T. H.'s testimony, which I find to be credible, that Dr. Shah never discussed the problem of acne with her, and did not prescribe Erythromycin or any other medication to treat the acne on her face. However, T. H. did discuss the acne problem with Tammy. It was not unusual for Dr. Shah to carry prescription pads home with him, which were then available to those in his home. Likewise, it was not unusual for a Medical Assistant, such as Tammy, to have access to Dr. Shah's prescription pads at work. In fact, it was not unusual for a Medical Assistant to fill in the necessary information on a prescription for the doctor's signature. The MidTown Clinic has no medical records or any other records reflecting that Dr. Shah ever saw T. H. as a patient. Likewise, Dr. Shah did not have any records reflecting that he had ever treated T. H. as a patient or that he had given T. H. a physical examination. T. H. did not have a regular physician. When she needed medical treatment, T. H. went to the Health Department or Tammy would secure medical treatment for T. H. from physicians with whom Tammy worked. Other than the allegation concerning the acne problem, there is no allegation that Tammy sought medical treatment for T. H. from Dr. Shah, or that Dr. Shah saw T. H. as a patient. An analysis by the Board's handwriting expert indicates that the signature on the prescription in question is consistent with the presumed, not known, signature of Zafar Shah, M.D. on 20 other prescriptions taken from the Wal- Mart Pharmacy in Zephyrhills, Florida. The Board offered no evidence that the signatures on the 20 prescriptions from Wal-Mart were in fact the signature of Zafar Shah, M.D., other than the testimony of the pharmacist from Wal-Mart that the signatures on those 20 prescriptions filled at Wal-Mart appeared to him to be the signature of Zafar Shah, M.D. Although the Board's handwriting expert was given the opportunity to compare current samples of Dr. Shah's signature, to be given by Dr. Shah prior to the hearing, with the signature on the prescription in question, he chose not to make this comparison. The Board's handwriting expert did not compare the signature in question to any known signature of Zafar Shah, M.D. There is insufficient evidence to establish facts to show that Dr. Shah wrote the prescription in question, notwithstanding the testimony of the Board's handwriting expert to the contrary, which I find lacks credibility in this regard. Likewise, there is insufficient evidence to establish facts to show that Dr. Shah ever treated T. H. for the acne on her face or for any other medical problem or that a patient- physician relationship ever existed between Dr. Shah and T. H., notwithstanding the testimony of Tammy or Corey Rachel to the contrary, which I find lacks credibility in this regard. On August 5, 1999, Dr. Shah had dinner with Tammy, Corey Rachel, T. H., and Tammy's two younger daughters at the Rachel's home in Dade City, Florida, as he had on many previous occasions. On August 5, 1999, Dr. Shah was to spend the night in the Rachel's home, as he had on many previous occasions. As usual, Dr. Shah was to sleep on an air mattress in the living room. Around 11:00 p.m. Tammy and Corey Rachel went to bed. Sometime thereafter, T. H. went to her room to prepare for bed and Dr. Shah proceeded to prepare for bed in the living room on the air mattress. Around 1:00 a.m. on August 6, 1999, Tammy testified that she was awakened by what she thought was a noise and got out of bed. After getting out of bed, Tammy checked on her two younger daughters, and then checked on T. H. who was not in her bedroom. Tammy then proceeded to look elsewhere in the house for T. H. Tammy also testified that when she walked into the living room she observed T. H. and Dr. Shah having, what appeared to her, to be sexual intercourse. Tammy became very upset and began beating Dr. Shah on the back and calling Corey Rachel. Dr. Shah attempted to protect himself from Tammy's onslaught by gathering his belongings and leaving the house. During the time Tammy was beating on Dr. Shah, she also slapped T. H.'s face. Corey responded to Tammy and instructed T. H. to go to her room. T. H. then went to her room. At this time, T. H. still had on the long T-shirt and under pants, which she had worn to bed. Likewise, Dr. Shaw had on the clothing that he had worn to bed. Tammy reported the incident to the Pasco County Sheriff's Department. Deputy Timothy Harris and Sergeant Rowan responded to the call by Tammy. Upon arrival at the Rachel home, the officers spoke with Tammy, Corey Rachel, and T. H. When T. H. was interviewed by Deputy Harris, she told Deputy Harris that she and Dr. Shah had been engaged in sexual intercourse at the time Tammy came into the living room. In fact, T. H. related a very explicit account of the incident, using language which was not in her normal vocabulary. T. H. also provided a written statement of the incident to Deputy Harris where she again admitted to having sex with Dr. Shah. After providing the written statement, T. H. went home with her father. T. H. was not under oath on either of these occasions. Deputy Harris inspected the scene of the incident for physical evidence that sexual intercourse had taken place between T. H. and Dr. Shah. Deputy Harris did not find any physical evidence that sexual intercourse had occurred. Deputy Harris also took some clothing that T. H. had been wearing as evidence for the purpose of examining for evidence of sexual intercourse. Upon examination, this clothing did not yield any evidence of sexual intercourse. Later in the morning of August 6, 1999, Detective Ball went to the home of Timothy Harvey and interviewed T. H. In this interview, T. H. again stated that she and Dr. Shah were engaged in sexual intercourse earlier that morning at the Rachel's home, and had, on previous occasions, had sexual intercourse at the Rachel's residence and at Dr. Shah's residence. She also related that she was in love with Dr. Shah and that they were going to be married when she turned 18 years of age. T. H. further related to Detective Ball that Tammy was jealous of her relationship with Dr. Shah. When Detective Ball requested that T. H. undergo a physical examination to uncover possible evidence of sexual intercourse between T. H. and Dr. Shah, T. H. refused to undergo the physical examination. T. H.'s reason for not taking the physical examination was that she loved Dr. Shah and any evidence found would obviously be used against him. Later, during the day of August 6, 1999, Tammy and Dr. Shah agreed to meet at Brewmasters, a restaurant in Wesley Chapel, halfway between Dr. Shah's house and Dade City, Florida. This meeting was arranged by Tammy at the request of the Pasco County Sheriff's office in an attempt to get Dr. Shah to admit to having had sexual intercourse with T. H. on August 6, 1999. Tammy was wired and the Detectives from the Pasco County Sheriff's office attempted to monitor the conversation. However, the monitoring was not too successful. During this meeting between Dr. Shah and Tammy, which lasted approximately 45 minutes, Dr. Shah repeatedly denied having sexual intercourse with T. H. At the conclusion of this meeting with Tammy, the Detectives approached Dr. Shah and requested that he accompany them to the County Jail. Although Dr. Shah was not officially placed under arrest at this time, he was unsure of his rights and felt intimated by the Detectives. The Detectives did not offer Dr. Shah the opportunity to drive his vehicle to the County Jail. Dr. Shah was transported to the County Jail by the Detectives. Once at the County Jail, the Detectives went through their interrogation (interview) routine. Dr. Shah's understanding was that the Detectives were giving him the choice of admitting to having had consensual sexual intercourse with T. H. or to having raped T. H. With that understanding, Dr. Shah admitted to having had consensual sexual intercourse with T. H. Dr. Shah was upset, confused and intimidated by the Detectives. Dr. Shah gave the Detectives the answers that he assumed they wanted. Upon being advised of Miranda rights, Dr. Shah requested an attorney and made no further statements. On September 28, 1999, Detective Ball and Bill Joseph, a Crime Scene Technician, went to the Rachel's home with a Lumalite for the purpose of illuminating body fluids that may have been left on the carpet or any other area as result of the alleged sexual intercourse. No evidence of body fluids was found. Under oath, during the State Attorney's investigation, T. H. recanted the story given in her written statement on August 6, 1999, and the story given verbally to Deputy Harris and Deputy Ball on August 6, 1999, and denied that she and Dr. Shah were engaged in sexual intercourse at the Rachel's home on August 6, 1999, when Tammy came into the living room or at any time previous to August 6, 1999. Subsequently, the State Attorney, on February 14, 2000, filed a No Information concluding that the facts and circumstances of this case did not warrant prosecution at that time. Again, under oath at the hearing, T. H. recanted the story given in her written statement on August 6, 1999, and the story given verbally to Deputy Harris and Deputy Ball on August 6, 1999, and denied that she and Dr. Shah were engaged in sexual intercourse at the Rachel's home on August 6, 1999, when Tammy came into the living room or at any other time. However, T. H. admitted to having a sexual relationship with two young males prior to August 1999. T. H.'s reason for not telling the truth in her recitation of the facts in her initial interview with Deputy Harris or her written voluntary statement to Deputy Harris or in her interview with Deputy Ball was that she was aware of Tammy's involvement with Dr. Shah and was attempting to make Tammy jealous because she was mad with Tammy due to their fight the previous evening and because of other problems that she was experiencing with Tammy. Additionally, T. H. had overheard a conversation between Tammy and Dr. Shah wherein Tammy was discussing divorcing Corey Rachel and marrying Dr. Shah, which upset T. H. T. H. testified that sometime after she and Dr. Shah had gone to bed in their respective rooms, she went in the living room to talk to Dr. Shah about the situation between she and Tammy as she had on other occasions. During their conversation, T. H. was sitting close to Dr. Shah. As their conversation progressed, T. H. became emotional and Dr. Shah "put his arm around her shoulder" to console her as he had on other occasions when she would discuss problems between her and Tammy. It was in this posture that Tammy found Dr. Shah and T. H. at approximately 1:00 a.m. on August 6, 1999. There is insufficient evidence to establish facts to show that T. H. and Dr. Shah were engaged in sexual intercourse at the Rachel's home on August 6, 1999, or at any time previous to that date, notwithstanding: (a) Tammy's testimony to the contrary, which I find lacks credibility due to her demeanor at the hearing and her involvement with Dr. Shah; (b) T. H.'s admission that sexual intercourse had occurred, which T. H. later recanted under oath, and which she testified was only done for the purpose of making Tammy jealous; and (c) Dr. Shah's admission, while being interrogated, that consensual sex had occurred between he and T. H., which he later recanted under oath at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order finding Dr. Shah not guilty of the charges outlined in Counts 7-10 of the Administrative Complaint and dismissing the charges outlined in Counts 7-10 of the Administrative Complaint. DONE AND ENTERED this 31st day of August, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2001. COPIES FURNISHED: Robert C. Byerts, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Jack D. Hoogewind, Esquire 33283 Cortez Boulevard Dade City, Florida 33523 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701
The Issue When the hearing commenced, the parties through counsel agreed that sufficient facts would be presented to sustain a finding of violations of Counts One, Two, and Three a. and b., within the Administrative Complaint drawn by the State of Florida, Department of Health, Case No. 1999-53281. It was left for the fact finder to portray those facts consistent with the agreement. The parties presented their cases and facts have been found on the record which promote findings of violations of the aforementioned counts. In addition, as envisioned by the parties and accepted by the undersigned, determinations concerning recommended sanctions for the violations have been made on the record presented at hearing.1
Findings Of Fact Respondent's History At all times relevant, Respondent has been licensed as a physician in the State of Florida in accordance with license No. ME:0061141. His practice has been in the field of psychiatry. Respondent is Board-certified in psychiatry. Respondent has a Bachelor's of Science degree from the University of Michigan. He holds a Masters' degree in Clinical Social Work from Tulane University and a Medical Degree from Louisiana State University Medical School. Respondent did a four-year residency at Ochner Foundation Hospital in Psychiatry. Respondent has been married to Brenda Schenthal for 25 years. The Schenthal's have two sons, ages 10 and 12. The family resides in Destin, Florida. Respondent began private practice in the Fort Walton Beach, Florida, area in 1993 with Dr. Victor DeMoya. Respondent was affiliated with that practice when circumstances arose for which he stands accused. Respondent practiced in the group known as Emerald Coast Psychiatric Care, P.A., in Fort Walton Beach, Florida. Respondent does not have a prior disciplinary history with the Board of Medicine. M.B.G. M.B.G. was born July 23, 1981. Respondent first saw M.B.G. on March 21, 1996, when she was 14 years old. M.B.G. presented with issues of uncontrollable behavior, running away from home, anger, rage, drug use, suspected alcohol abuse, and sexual promiscuity. M.B.G. did not have a history of acting out until she was 13 or 14 years old. Respondent had been treating M.B.G. for approximately two months, when in May 1996, M.B.G. was involved in a physical altercation with another student in her school. The evaluation Respondent performed at that time revealed that M.B.G. was extremely angry, presenting sufficient risk that Respondent determined to involuntarily commit M.B.G. to Rivendell Hospital in Fort Walton Beach, Florida. At the time M.B.G. remained hospitalized for a couple of weeks. Following her hospitalization M.B.G. was seen by Dr. Deborah Simkan, an adolescent psychiatrist. Dr. Simkan was associated with Respondent's clinic. M.B.G. remained in treatment with Dr. Simkan until August of 1996. At the time M.B.G. was also being seen by Betty Mason, a mental health counselor affiliated with Respondent's practice. There was some concern about the progress M.B.G. was making under Dr. Simkan's care and the family determined to move M.B.G. from the Fort Walton Beach, Florida, area to live with an aunt in Charleston, South Carolina. M.B.G. had been sent to live with her aunt because M.B.G. was defiant, would not follow the rules in her household, and was difficult to control. After living with her aunt in Charleston, South Carolina, for several months it became apparent that the aunt was unable to control M.B.G. There was some suspicion that M.B.G. was using drugs while residing with her aunt. When M.B.G. returned from Charleston, South Carolina, she ran away from home as she had before. When she was found she was sent to live in a treatment facility in Trenton, Alabama. That facility was Three Springs. The reasons for her placement related to the inability to control her conduct, suspected alcohol abuse, and sexual promiscuity. M.B.G. remained at Three Springs from January 1997 until her return home in April 1998. Her stay in that facility was in accordance with a very structured environment. While at Three Springs M.B.G. revealed for the first time that she had been the victim of sexual abuse by a male YMCA counselor when she was nine years old. As a means to express her feelings, while at Three Springs, M.B.G. was encouraged to write in journals, in that she found writing about her feelings an easier means of expression then verbalizing her feelings. M.B.G. could share or refuse to share the things that she had written in the journals. Upon her release from Three Springs M.B.G. asked that Respondent resume her care. It was anticipated that Respondent would treat M.B.G. for the sexual abuse that had occurred earlier in her life and as a means to transition from the very structured environment at Three Springs into greater freedom she would have living at home. In April 1998, when Respondent again undertook M.B.G.'s care, his response to his duties was initially appropriate. However, upon reflection Respondent questions the decision to undertake the care following his former decision to place M.B.G. in Rivendell Hospital under the Baker Act. In April, M.B.G. was being seen by Respondent in his practice twice a week for one hour each visit. A couple of months later the schedule changed from two one-hour sessions per week to one two-hour session per week. Around August or September 1998, Respondent began to see M.B.G. three or four times a week in his office. By January of 1999, Respondent was seeing M.B.G. almost on a daily basis, not always in his office. Some of the increases in contacts between M.B.G. and the Respondent were associated with group therapy sessions involving M.B.G. and other sexual abuse patients under Respondent's care. One of the persons in the group was considerably older than M.B.G. It was not shown that the inclusion of the older patient in the therapy group was designed to advance some inappropriate purpose in the relationship between Respondent and M.B.G. Nonetheless, Respondent now questions the appropriateness of placing M.B.G. in the group with such divergence in ages among the participants. Upon her return from Three Springs M.B.G. became pregnant as was manifest in May 1998. She informed Respondent of her pregnancy. Reluctant to tell her parents about her condition, M.B.G. expressed the belief that an abortion was a better choice in responding to her pregnancy. Respondent left it to M.B.G. to inform her parents or not concerning the pregnancy. Respondent arranged for M.B.G. to talk to a patient who had gone through a somewhat similar experience. Ultimately M.B.G. told her mother of the pregnancy and the desire to terminate her pregnancy. Her mother was supportive of that choice and arranged for the abortion procedure. Respondent offered to go with M.B.G. and her mother M.G. when the abortion was performed. Respondent now concedes the error in the choice to offer to accompany and the accompaniment of M.B.G. and her mother to the place where the abortion was performed. This was not an appropriate response for a care-giver. Upon her return from Three Springs M.B.G. had a better relationship with her family than before. But the cordiality did not last. Over time their relationship became strained. M.B.G. was especially irritated with her mother. As before, M.B.G. maintained journals upon her return from Three Springs, portions of which she shared with Respondent. M.B.G. considered the journals to be private. Her mother was aware of the issue of privacy. Without permission M.G. read her daughter's journals. Being aware that the mother had read the journals, Respondent brought M.B.G. a safe to help maintain the journals in privacy. This purchase constituted involvement with the patient M.B.G. beyond the provision of appropriate care and into the area of problem solving in which Respondent should not have been involved. Respondent has come to understand that the purchase of the "lock-box" was not an appropriate decision. Another indication that Respondent was deviating from the normal physician-patient expectations in treating M.B.G. occurred in September 1998, in a meeting between M.B.G. and her parents. Rather than maintain his professional objectivity, Respondent sided with the patient M.B.G. in a setting in which the parents were attempting to impose rules and restrictions on her conduct. In retrospect Respondent feels that he should have handled that appointment differently, realizing his conduct indicated that something was going on within him that was not desirable, as evidenced by his starting to side with the patient. In November 1998, in response to one of the therapy sessions Respondent was engaged in with M.B.G., Respondent provided the patient with a can of Spaghettios and a poster board that he sent home with her mother. With these items he wrote a note that indicated that the Spaghettios were a reward for her efforts and he signed the note "your protector" and the name "Steve" in informal reference. As Respondent acknowledges, this was "an indication there was certainly more going on with myself," referring to feelings he was developing for the patient that were not proper conduct for a physician. M.B.G. and her family took a Christmas holiday in 1998. M.B.G. did not enjoy the trip. In explaining the lack of enjoyment, M.B.G. indicated that she did not enjoy spending time with her family on the vacation. Upon the return home M.B.G. went to stay with a friend from school. The friend with whom M.B.G. was staying upon the return from the vacation was being visited by some students from Florida State University. It was decided that M.B.G.'s friend, M.B.G., and those students would go to M.B.G.'s house to play pool. The next morning, M.B.G.'s mother found evidence that beer or other forms of alcohol had been consumed in the basement where the pool table was located. D.G., M.B.G.'s father also saw this evidence. M.G. confronted M.B.G. with the evidence. M.B.G.'s response was to leave her home and return to her friend's home. Later M.B.G. called her home and left a message that she was going to spend the night with her friend. Beyond that point Respondent became aware that M.B.G. and her mother had a disagreement about what had happened in the basement at their home. M.B.G. denied being involved in drinking. Respondent became involved in what he considered to be a stand- off between M.B.G. and her mother concerning terms acceptable for M.B.G.'s return home from her friend's house. As Respondent described it, he was allowing himself to get stuck in between M.B.G. and her mother on this subject. During the time that M.B.G. lived away from her home with the friend, Respondent spoke to M.G. about a contact which M.G. had with Three Springs, in which it was stated that M.B.G. might be returned to that facility or that M.B.G. might possibly be emancipated. Respondent spoke to Dr. Ellen Gandle, a forensic child/adolescent/adult psychiatrist, expressing his feelings of responsibility to help M.B.G. other than in the role of psychiatrist. Dr. Gandle strongly suggested Respondent not abandon his role as psychotherapist in favor of that of guardian for M.B.G. The possible guardianship was another subject that had been discussed with M.G. Respondent also tried to contact Dr. Charles Billings who had been the Respondent's residency director at Ochner to discuss this situation concerning M.B.G. In conversation, Dr. Victor F. DeMoya, Respondent's partner in the practice, advised Respondent that Dr. DeMoya considered it to be a conflict in roles for Respondent to be a therapist to M.B.G. and her guardian and that Respondent should seek the "feedback" of other colleagues about that prospect. Given the schism that existed between M.B.G. and her mother, the mother expressed a reluctance to provide continuing financial support to her daughter, the mother wanted the daughter to return the car the daughter was allowed to drive, and the mother wanted the house keys and credit cards returned. These views were made known to Respondent. Respondent went with a member of M.B.G.'s therapy group to M.B.G.'s home to remove her belongings. This retrieval of the patient's belongings was a boundary violation of conduct expected of a physician. Beyond that point Respondent continued to pursue a course of conduct involving boundary violations in his relationship with M.B.G. While M.B.G. was living with her friend from December 1998 until February 12, 1999, Respondent saw her frequently outside the treatment setting. In these instances Respondent discussed with M.B.G. her living circumstance. Respondent was involved with paying rent to the family of the friend with whom M.B.G. was living. Respondent was involved with shortening M.B.G.'s school day as a means to assist her in getting a job. Respondent helped M.B.G. to fill-out applications for college. Although Respondent had the expectation that M.B.G. would eventually repay the money expended, Respondent and his wife purchased an automobile and gave it to M.B.G. Respondent opened a joint checking account in which M.B.G. had access to monies that had been placed there by Respondent. Respondent provided M.B.G. a pager which was used by Respondent in contacting M.B.G. at her friend's residence after curfew hours that had been imposed by the friend's parents. Sometime around the latter half of January 1999, Respondent became convinced that he was falling in love with M.B.G. He gave expression to these feelings both verbally and in cards that he sent to M.B.G. In addition, Respondent had sexual fantasies about M.B.G. Respondent went so far as to discuss with M.B.G. the possibility of marrying her and the consequences of that choice. Eventually, Respondent made his wife aware of his feelings toward M.B.G. On February 11, 1999, while seated in the car Respondent had purchased for M.B.G., they kissed briefly. On February 12, 1999, M.B.G. and the friend in whose house M.B.G. was living, had an argument and M.B.G. left the home. After leaving she called Respondent early on February 13, 1999. She explained to Respondent that she had left the friend's home and was planning to drive to Tuscaloosa, Alabama. In response Respondent offered to meet M.B.G. They met at a parking lot at a Walgreens store. While seated in the car they talked for a while and kissed. Respondent invited M.B.G. to stay at his residence. She declined. Respondent then offered to get her a hotel room. On February 13, 1999, Respondent paid for a room in a local motel for M.B.G. to use. Respondent carried her belongings into the room. They sat on the bed in the room and talked, kissed, and hugged. In the course of the hugging Respondent placed his hand inside the band of M.B.G.'s sweat pants that she was wearing. Respondent touched M.B.G.'s breast on the outside of her clothing. Respondent then left the lodging and returned home. When at home he explained to his wife what had transpired with M.B.G. Following the encounter on February 13, 1999, in the motel, Respondent discussed the situation involving M.B.G. with his partner in the clinic. His partner told Respondent that Respondent needed help. Respondent contacted Dr. Henry Dohn, an adult psychiatrist practicing in Pensacola, Florida. This visit took place on February 14, 1999. They discussed the situation with M.B.G. An arrangement was made for a return visit which occurred on February 19, 1999. Respondent reports that Dr. Dohn told Respondent that the Respondent was not thinking clearly and needed to stop practicing and to attend to whatever issues needed attention in association with the boundary violation pertaining to M.B.G. Respondent was told by Dr. Dohn that if he did not report himself, Dr. Dohn would make a report concerning the conduct. In turn Respondent called a Dr. Dwyer, the on-call doctor at the Physician's Resource Network. Consistent with the discussion held between Respondent and Dr. Dohn, Respondent determined to admit himself for treatment at the Menninger Clinic in Topeka, Kansas. Respondent was admitted to the clinic on February 22, 1999. He had told his partner Dr. DeMoya that he was going to the clinic. Respondent admitted himself to the Menninger Clinic on a voluntary basis. While under treatment at Menninger Clinic Respondent was cared for by Dr. Richard Irons. Respondent also consulted with Dr. Glenn Gabbard, who specializes in boundary violations. Respondent was treated at the Menninger Clinic from February 22, 1999 through February 24, 1999, on an in-patient basis. He continued his treatment on an out-patient basis from February 24, 1999 until March 19, 1999. Respondent was released from the Menninger Clinic on March 19, 1999, and returned to Florida. Without justification and contrary to appropriate conduct for a physician, especially when recognizing his past indiscretions with M.B.G., Respondent made an arrangement to meet M.B.G. in person. This was contrary to any of the advise he had been given either medical or legal. While it had been suggested that Respondent offer assistance in placing M.B.G. in therapy with another care-giver, it was not contemplated that the arrangements would be made in person. Moreover, Respondent had a more expansive agenda in mind when meeting M.B.G., beyond acknowledging his responsibility for what had transpired between them, the offer to assist in finding a therapist and the possibility of paying for the therapy. Broadly stated, Respondent believed at that point-in-time that he could "fix things between them." Respondent was unaware that M.B.G. had contacted the authorities after their encounter in the motel room and complained about his conduct. She agreed to assist the authorities in investigating Respondent, to include taping telephone conversations between M.B.G. and Respondent while he was in Topeka, Kansas, undergoing treatment and upon his return. As well, M.B.G. was wearing a transmitter when she met Respondent in a park in Fort Walton Beach, Florida, on March 22, 1999, that would allow the authorities to record the meeting. The meeting was also video-taped. When the meeting concluded Respondent was arrested by Okaloosa County, Florida, Sheriff's deputies upon charges of battery, attempted sexual misconduct by a psychotherapist and interference with child custody. As a consequence, Respondent was charged in State of Florida vs. Stephen Schenthal, in the Circuit Court of Okaloosa County, Florida, Case No. 99-497-CFA. The case was disposed of by entry of a plea of nolo contendere to Count One: attempted interference in custody, Count Two: attempted sexual misconduct by a psychotherapist. In response an order was entered by the Court withholding the adjudication of guilt and placing defendant on probation on September 2, 1999. Respondent was placed on probation for a period of two years under terms set forth in the court order. These criminal offenses relate to the practice of medicine or the ability to practice medicine. In his testimony Respondent acknowledged that he committed boundary violations with M.B.G. that are depicted in the fact finding. Whether Respondent recognized the damage he was causing while he was engaged in the misconduct, he does not deny that he violated the fiduciary relationship with his patient by betraying M.B.G.'s trust and participating in the re- traumaterzation of her past. No independent evidence from a person treating the patient was presented concerning M.B.G.'s mental health following Respondent's transgressions. But Respondent recognizes the potential for significant damage to his patient by making it hard for M.B.G. to trust other physicians, therapists, authority figures, or to trust relationships in general and the possible re-enforcement of the trauma that had occurred in her childhood. Dr. Peter A. Szmurlo, a psychiatrist who practices in Florida, was called upon to review the circumstances concerning Respondent's relationship with M.B.G. Dr. Szmurlo has not had the opportunity to examine M.B.G. However, in a report dated November 1, 2000, concerning Respondent's actions, Dr. Szmurlo stated, "I believe that the patient's relationship with Dr. Schenthal was nothing but destructive and may preclude her ability to ever be able to develop a trusting relationship with another male and/or with another psychotherapist." In his deposition Dr. Szmurlo expressed the opinion that the issue of potential harm to M.B.G. was clear and that the potential harm was in association with "further undermining of the patient's sense of safety and, therefore enhancing or recreating the original trauma (assuming it really occurred), and that's the sexual trauma which occurred in early years." Dr. Joel Ziegler Klass, practices psychiatry in Florida. Dr. Klass reviewed information concerning Respondent's relationship with M.B.G. Dr. Klass did not personally assess M.B.G., however, within his knowledge of the facts concerning the relationship between Respondent and M.B.G. and the patient's prior history; Dr. Klass did not think a lot of damage had been done by Respondent to M.B.G. He did express the opinion that M.B.G. lost out on valuable time to get help for her mental health based upon Respondent's indiscretion. As of November 27, 2000, when M.B.G. gave her deposition, she was attending the University of Alabama in Tuscaloosa, Alabama. She explained that she had been seen by a mental health care provider, Dr. Carol Ware, a psychologist in Tuscaloosa, Alabama. The purpose for seeing Dr. Ware was basically pertaining to "things that had happened with Dr. Schenthal." M.B.G. last saw Dr. Ware in July or August 2000. M.B.G. expressed an interest in seeing a psychiatrist and indicated that she had called three different doctors. She wishes to see a female psychiatrist and she understands that only one or two female psychiatrists were practicing in Tuscaloosa when she inquired. She provided information to facilitate being seen by one of those psychiatrists but has not heard back from either practitioner concerning their willingness to treat M.B.G. In her deposition M.B.G. expressed the feeling of depression "just ups and downs and it comes as fast as it goes and it’s getting a lot worse and I need somebody to help me with it." Dr. Szmurlo expressed the opinion, within a reasonable degree of medical certainty, that Respondent used information gathered from the physician/patient relationship during the therapeutic sessions to establish trust and exercise influence over M.B.G. thereby engaging in a course of conduct for purposes of engaging a patient in a sexual relationship. That opinion is accepted. Dr. Szmurlo also expressed the opinion, within a reasonable degree of medical certainty, that Respondent in his treatment of M.B.G. practiced medicine with a level of care, skill, and treatment, which would not be recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. That opinion is accepted. Respondent: Diagnosis, Care, and Practice Opportunities Respondent returned to the Menninger Clinic on March 29, 1999, and was seen on an in-patient basis until May 14, 1999. Dr. Richard Irons was Respondent's principal treating physician at the Menninger Clinic. Upon his release from the Menninger Clinic, Respondent has been routinely treated by Dr. Roberta Schaffner, who practices psychiatry in Pensacola, Florida. Her treatment began July 9, 1999, and was continuing upon the hearing dates. Her treatment involves psychotherapy and the use of medications. As Dr. Schaffner explained in correspondence to counsel for Respondent, Dr. Schaffner's treatment does not involve the role of making specific recommendations about the timing and details of Respondent's possible return to practice. The treatment provided by Dr. Schaffner was in agreement with the treatment plan from the Menninger Clinic and was discussed with Dr. Irons and Dr. Gabbard who had cared for Respondent at the Menninger Clinic. Dr. Schaffner does not oppose the recommendations of Dr. Barbara Stein, a psychiatrist who has evaluated Respondent concerning his fitness to return to practice and under what circumstances. With this knowledge, Dr. Schaffner has indicated that were she persuaded that the suggestions by Dr. Stein for restrictions on Respondent's possible return to practice were ideas that were dangerous or inappropriate, Dr. Schaffner would be active in expressing her opposition, recognizing Respondent's difficulties. This is taken to mean recognizing Respondent's underlying mental health which needs attention. As Dr. Klass explained in his testimony, Respondent's present physician Dr. Schaffner would not offer her specific observations concerning Respondent in the interest of maintaining the physician/patient relationship. Using the diagnostic criteria in DSM-IV, Mental Disorders, Dr. Irons identified Respondent's condition as follows: Axis I: 296.22 Major depressive episode, single, in full remission V. 62.2 Occupational problem associated with professional sexual misconduct Axis II: 301.9 Personality disorder NOS, a mixed personality disorder with narcissistic, histrionic, compulsive and dependent features. Dr. Irons expressed this diagnosis in correspondence dated March 24, 2000, directed to Dr. Raymond M. Pomm, Medical Director for the Physician's Resource Network. In addition to the prior treatment described, Dr. Irons has seen Respondent for internal review of Respondent's progress and rehabilitation. On November 29 and 30, and December 1, 1999, Dr. Irons noted that: The patient continued to show progress and understanding in appreciating boundary- related issues, as well as problems of potential vulnerability associated with professional re-entry. The patient shows incremental improvement in understanding dynamics of boundary violations and appears to have gained some insight into the nature of his own transgressions. I concur with opinions presented by Dr. Schaffner, as well as Dr. Gabbard that ongoing and continuing work should be strongly encouraged. Collectively, Dr. Gabbard, Dr. Schaffner, and myself believe that this individual has the potential to practice psychiatry but only with the use of a carefully structured and monitored professional re-entry program. view: We would support professional re-entry into a psychiatric practice that involves males and females if the site provided for direct supervision with regular reports to appropriate regulatory authorities in Florida. In the correspondence Dr. Irons went on to express his It is my professional opinion with a reasonable degree of medical certainty that Steven Schenthal has made sufficient progress to be able to return to the practice of psychiatry with reasonable skill and safety on the following conditions: The patient will return to practice serving an all-male population. The patient will not serve females professionally under any circumstances. Dr. Schenthal will not engage in marital therapy or couples therapy or work with groups involving males and females. Dr. Schenthal will engage in a program that will involve monitoring of his practice through a sexual boundary violation contract with the Physicians Recovery Network. The patient will enact practice modifications which include appointments only during office hours with support staff in attendance, limitation of office hours to 8 a.m. to 5 p.m., office policies and office practice to be monitored by a psychiatrist agreeable to Dr. Schenthal and the Physician Resource Network, ongoing individual psychotherapy with Roberta Schafner, [sic] M.D., twice weekly at this time and a frequency agreeable to Dr. Schafner [sic] and other concerns [sic] parties. The patient will practice in an office which includes other therapists if not other physicians, and will arrange for clinical supervision with the supervisor having regular contact with Roberta Schafner [sic]. Dr. Barbara N. Stein, is Board-certified in psychiatry and practices in Florida. She was requested by Respondent to provide a second opinion on what parameters would allow Respondent to practice medicine with reasonable skill and with safety to patients. Reportedly, this request was made by Respondent who was dissatisfied with Dr. Irons' recommendations concerning the circumstances under which Respondent might return to practice. Based upon a review of the history of Respondent and the treatment provided to M.B.G. and an interview conducted on August 22, 2000, Dr. Stein concluded that Respondent suffers from Major Depressive Disorder, Single Episode, without psychotic features, Mild DSM-IV 296.21; Dysthymic Disorder, DSM- IV 300.4; and that there is evidence that Respondent suffers from personality disorder, not otherwise specified with narcissistic, histrionic, and anti-social personality traits, DSM-IV 301.9. In her report Dr. Stein went on to express her opinion on how Respondent can practice medicine with reasonable skill and safety to patients and stated that within her opinion with reasonable medical certainty Respondent can practice safely as long as certain restrictions were in place to include: Dr. Schenthal continues at least weekly (and preferably twice a week) therapy as recommended with Dr. Schaffner. Dr. Schenthal continues in weekly PRN Caduceus group. Dr. Schenthal continues to have regular, indirect physician monitoring of his cases directed by the Board. Dr. Schenthal works only in an institutional or group practice setting and does not treat (with psychotherapy) any female patients under 30 for at least two years or until which time he is deemed safe to do so. Dr. Schenthal may do medication management with females under 30 if and only if he has a licensed female health care worker in the room at all times and he does not have any call responsibilities that would cause him to treat these patients after hours without a chaperone. He should not ever treat female adolescents again. Dr. Schenthal takes a series of professional boundary/risk management courses on an annual basis. Patient survey and physician survey forms are employed quarterly and results are satisfactory. Dr. Schenthal has appointments only during regular office hours. Dr. Schenthal continues taking his antidepressant medication until his depressive symptoms have remitted for a minimum of six months and/or Dr. Schaffner recommends discontinuation. Dr. Schenthal and his wife participate in marital therapy if recommended by Dr. Schaffner. Dr. Schenthal is fully compliant with the above and with his long-term PRN contract. With the above recommendations for continued rehabilitation, supervision and monitoring in place, it is my medical opinion that Dr. Schenthal can begin his re-entry into professional practice with the reasonable skills and safety to patients. Dr. Raymond M. Pomm is a psychiatrist. He is the Medical Director of the Physician's Resource Network. Dr. Pomm was aware of Dr. Stein's findings concerning Respondent when Dr. Pomm prepared his own report on October 27, 2000. Based upon Dr. Stein's evaluation, Dr. Pomm's knowledge of the case and with the recognition that restrictions on Respondent's return to practice would be monitored by the Physician's Resource Network, in part and by the Agency for Health Care Administration otherwise, Dr. Pomm described the nature of restrictions he would recommend, should Respondent be allowed to return to practice. They were as follows: Dr. Schenthal should continue at least weekly psychotherapy. This will be a requirement of his PRN contract. Dr. Schenthal should continue his weekly PRN Caduceus group. This also will be a part of his PRN contract. Dr. Schenthal should have indirect physician supervision. This supervision would entail Dr. Schenthal meeting with a physician who is Board-Certified in his specific specialty of Psychiatry on a monthly basis. Each visit will require the supervisor to review with Dr. Schenthal a randomly selected ten percent of Dr. Schenthal's charts pertaining to his treatment of female patients. Therefore, every quarter, a minimum of thirty percent of his charts should have been reviewed. The review would be looking at the appropriateness of evaluative techniques used, therapeutic and psychotropic medication management issues, as well as, countertransferential issues. Also, this review will determine the appropriateness of the ongoing treatment plan and Dr. Schenthal's follow-up with said treatment plan. Dr. Schenthal should only work in an institutional or group practice setting. Dr. Schenthal should not treat any female patient under thirty years of age with psychotherapy for at least two years, and until such time he is deemed safe to do so. Dr. Schenthal may do medication management with females under thirty years of age, if an only, if, he has a licensed female health care worker in the room at all times. Dr. Schenthal should never have any call responsibilities that would cause him to treat the restricted population after hours without a chaperone. Dr. Schenthal should never treat female adolescent patients again (any female patients under twenty-one years of age). Dr. Schenthal should receive annual CME credits in boundary violation and risk management. Patient survey forms, which will be supplied by PRN, should be distributed to his patients by his office manager for one entire week every quarter. These completed forms would then be sent to his indirect physician supervisor for review. Dr. Schenthal should only have appointments with patients during regular office hours. Dr. Schenthal should continue to see his psychiatrist on a regular basis as required by his PRN monitoring contract. Dr. Schenthal will be required to inform his office staff of the difficulties he is experiencing, the terms of his agreement with the Agency for Health Care Administration, as well as, the terms of his agreement with his PRN contract and give his staff the PRN phone number. The tenure of the PRN contract will be license-long. Dr. Klass was called upon by Respondent to offer an opinion concerning Respondent's conduct, in relation to the care Respondent provided M.B.G. After familiarizing himself with the circumstances, to include the reports of Dr. Schaffner concerning treatment provided Respondent and the forensic psychiatric examination performed by Dr. Stein, Dr. Klass arrived at his opinion concerning Respondent's status. Dr. Klass also spoke to Dr. Schaffner by telephone concerning her opinion and attitudes about Respondent. Implicit in Respondent's request was the intent that Dr. Klass speak to the issue of Respondent's future opportunities to practice and under what conditions. In arriving at his conclusions Dr. Klass performed an assessment of Respondent. Dr. Klass expressed the opinion that if Respondent were allowed to return to practice, Respondent could do so acceptably if the following restrictions were in place: 1) No treatment of a female patient younger than 21 years of age until Respondent completes his therapy, as attested to by two sources, one of whom is his treating psychiatrist and the other psychiatrist who is selected; 2) Supervision of all female cases not just young females; Respondent would have to take the charts of his female patients to a qualified Board-certified expert and go over those cases so that it can be determined whether Respondent is significantly affected by his problem in that it is not resolved; 3) Marriage counseling; 4) Participation in group therapy; 5) Medication as necessary; 6) Urine checks that Respondent would have to consent to on an unscheduled basis to determine if he is taking prescribed medication; 7) Further psychiatric/psychological testing if deemed necessary by treating therapists or the Board of Medicine; 8) Literature review on the subject of countertransferance which was in evidence in Respondent's conduct directed to M.B.G.; 9) No patients seen before 8:00 a.m. or after 6:00 p.m.; 10) Contact with Physician's Resource Network professionals who have similar problems to those experienced by Respondent; 11) Allowing assessment by a third- party through a psychological or psychiatric evaluation; Allowing communication with female consenting patients concerning limited questions about their therapy; and Maintaining a "dream journal." With these restrictions in mind, Dr. Klass believes, within a reasonable degree of medical probability, that Respondent could practice psychiatry safely. The restrictions which the physicians have recommended recognize that Respondent has yet to achieve a level of improvement in his condition that would not require close monitoring of his practice and their belief that he not be allowed to treat young female patients. These opinions are held while recognizing Respondent's improvement and willingness to continue with treatment. The opinions concerning restrictions on practice are accepted as well informed and meaningful. Dr. Madison Haire is a practicing internist and nephrologist in Fort Walton Beach, Florida. In the past, Dr. Haire referred patients to Respondent and was persuaded that Respondent provided those patients with excellent supervision, monitoring, and care, prior to the incident with forms the basis for this case. Dr. Haire was unaware of any complaints against Respondent. Dr. Patricia Harrison is a Board Certified psychiatrist who is practicing in the Fort Walton Beach area and has had the opportunity to observe Respondent in the performance of his duties. Dr. Harrison has observed that Respondent exercised professionalism and good judgment in rendering good care and treatment to his patients, aside from the present case. Other physicians have offered favorable opinions concerning Respondent's practice as evidenced in Respondent's Exhibit No. 8.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes the following penalties: Count One: Imposition of a $5,000.00 administrative fine; Count Two: A suspension of one year from the date upon which the final order is entered; Count Three: Placement of Respondent on two years probation following the service of his suspension, subject to such conditions as the Board may specify and restriction of Respondent's practice consistent with those recommendations that have been made by the treatment specialists, as deemed appropriate. DONE AND ENTERED this 15th day of March, 2001, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 15th day of March, 2001.
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty therefor.
Findings Of Fact Parties and Investigation Leading to Issuance of the Amended Complaint The Department is the state agency responsible for regulating the practice of medicine pursuant to section 20.43, Florida Statutes, and chapters 456 and 458, Florida Statutes. Respondent, Aunali Salim Khaku, M.D., is a neurologist and sleep medicine specialist licensed (ME 114611) in Florida. Respondent completed a neurology residency in 2013 and a sleep medicine fellowship in 2014. He practiced at the VA from 2014 until 2020, initially at the Lake Baldwin facility and then at the Lake Nona facility. From 2020 until early 2021, Respondent practiced at Orlando Health. Other than the allegations herein, the Department has never sought to discipline Respondent. The Department seeks to revoke Respondent’s license based on allegations that he engaged in sexual misconduct during office visits with three female patients—S.R., M.H., and M.V.S. The parties stipulated that the factual allegations, if proven by clear and convincing evidence, constitute sexual misconduct under Florida law. On or around December 6, 2020, M.V.S. reported to both the LMPD and the Department that Respondent acted inappropriately during an office visit on November 30, 2020. The Department investigated further, interviewed M.V.S. and Respondent, and obtained medical records from Orlando Health. On February 17, 2021, the Department issued an Order of Emergency Restriction of License (“ERO”) that restricted Respondent from practicing on female patients based on findings of sexual misconduct with M.V.S. On February 22, 2021, Respondent requested an expedited hearing under sections 120.569 and 120.57. The Department properly did not transmit the case to DOAH at that time, as judicial review of the ERO is via petition in the appellate court. §§ 120.60(6)(c) and 120.68, Fla. Stat. Respondent filed such a petition, but the First District Court of Appeal ultimately denied it on the merits. On March 9, 2021, the Department presented its disciplinary case to a probable cause panel of the Board. After hearing argument from both parties, the panel unanimously found probable cause to issue a three-count Administrative Complaint (“Complaint”) seeking to discipline Respondent for engaging in sexual misconduct with M.V.S. On March 10, 2021, the Department issued the Complaint. On March 16, 2021, Respondent requested an expedited formal hearing under chapter 120. However, the Department did not immediately transmit the Complaint to DOAH because it had just received notification that the VA investigated complaints of sexual misconduct against Respondent by two veterans, S.R. and M.H., who each saw Respondent multiple times between 2014 and 2016. The Department obtained records from the VA. As to S.R., the VA closed the matter as unsubstantiated based on S.R.’s decision not to pursue criminal charges and the VA’s finding of insufficient evidence to support the allegations. As to M.H., the VA found no conclusive evidence of misconduct based on Respondent’s testimony, which was corroborated by the testimony of his nurse and a medical student. After receipt of the VA records, the Department interviewed S.R. and M.H. Based on this additional information, the Department presented its case to another probable cause panel to amend the Complaint to include allegations relating to S.R. and M.H. After hearing from both parties, the panel voted unanimously on April 23, 2021, to find probable cause of sexual misconduct with S.R. and M.H. On April 27, 2021, the Department issued the three-count Amended Complaint seeking to discipline Respondent’s license for sexual misconduct with S.R., M.H., and M.V.S. On April 29, 2021, Respondent filed a third request for a hearing, which sought transmission of the case to DOAH for an expedited evidentiary hearing to be held within 30 days. On April 30, 2021, 45 days after Respondent’s request for a hearing on the initial Complaint, the Department transmitted the Amended Complaint to DOAH to conduct an evidentiary hearing under chapter 120.2 2 In filings prior to transmittal of the Amended Complaint to DOAH, in pleadings prior to the final hearing, and orally at the final hearing, Respondent argued that the Department improperly delayed transmitting the case to DOAH and violated his due process rights throughout the investigatory process. Even had Respondent preserved those arguments by including them in his PRO, the undersigned would have found that the Department’s investigation, the probable cause panel proceedings, and the timing of the transmittal of the case to DOAH did not render the proceedings unfair or impair the correctness of the Department’s action based on the weight of the credible evidence. For one, the Department presented its case to the probable cause panel 20 days after issuing the ERO and issued the initial Complaint the next day. It presented the new allegations to a probable cause panel 65 days after the ERO (and 44 days after filing the initial Complaint) and issued the Amended Complaint the next day. The Department then transmitted the Amended Complaint to DOAH on April 30, 2021, one day after Respondent requested a hearing on it and 45 days after requesting a hearing on the initial Complaint. Based on this timeline, the Department met its obligation to promptly institute chapter 120 proceedings. See § 120.60(6)(c), Fla. Stat. (“Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.”); see also § 456.073(5), Fla. Stat. (“Notwithstanding s. 120.569(2), the department shall notify the division within 45 days after receipt of a petition or request for a formal hearing.”); Fla. Admin. Code. R. 28-106.501(3) (“In the case of the emergency suspension, limitation, or restriction of a license, unless otherwise provided by law, within 20 days after emergency action taken pursuant to subsection (1) of this rule, the agency shall initiate administrative proceedings in compliance with Sections 120.569, 120.57 and 120.60, F.S., and Rule 28- 106.2015, F.A.C.”). The weight of the credible evidence also failed to establish any resulting prejudice to Respondent. He presented no evidence as to how the Department’s decision to investigate the new allegations and issue the Amended Complaint before transmitting the case to DOAH prejudiced his ability to defend against the allegations. The Department notified Respondent of M.V.S.’s complaint and allowed him to provide statements during the investigation, make arguments before both probable cause panels, conduct discovery, and adequately prepare for and defend against the allegations at a final hearing. The fact that the VA did not comply with Respondent’s discovery requests or make witnesses available is neither attributable to the Department nor a reasonable basis to argue prejudice, particularly where Respondent failed to enforce subpoenas or challenge the VA’s discovery objections in state or federal court. The undersigned simply cannot find that the Department violated Respondent’s due process rights by waiting 45 days to transmit the case to DOAH while the Department investigated new allegations involving two other female patients. At best, Respondent’s alleged prejudice is that the Department was able to prosecute him for sexual misconduct with two additional patients, which it had authority to do independently by separate complaint or by moving to amend the Complaint once it transmitted the case to DOAH. The latter option could have resulted in even more delay, as DOAH may have had to relinquish jurisdiction to allow for the new allegations to be approved by a probable cause panel if the Department had not already completed that necessary step. S.R.’s Two Appointments with Respondent in 2014 and 2015 In 2014, S.R., a 58-year-old veteran who just moved to Orlando, requested a neurology referral because she suffers from multiple sclerosis (“MS”). The VA referred her to Respondent with whom she had two office visits. On December 29, 2014, S.R. had her first appointment with Respondent at the VA Lake Baldwin facility. Respondent’s assistant took S.R.’s vitals but did not remain in the room during the examination.3 S.R. never asked for a chaperone to be present and one was not offered to her. Respondent entered the room and made introductions with S.R. They discussed the new VA facility in Lake Nona, where Respondent lived, and restaurants in that area. According to S.R., Respondent said that he hoped to see her, though she did not understand what that meant. S.R. explained that she suffered her first MS attack over 30 years earlier but only recently was diagnosed with the disease after a neurologist ordered an MRI. She discussed her current symptoms, including back pain, muscle spasms, and fatigue. Respondent told her that back problems were common for women with large breasts, which she thought was odd. But, she expressed hope that Respondent could continue to help with her symptoms much like her prior neurologists in South Carolina and South Florida. Respondent examined S.R. and tested her reflexes, vision, coordination, and physical limitations. Respondent said he wanted to listen to S.R.’s heart. Without even trying to listen over her clothes, he asked S.R. to lift her t-shirt. He began rubbing his stethoscope across both her breasts and under her bra. He then cupped the bottom of her left breast with the palm of 3 The VA advocate’s report indicated that S.R. said that Respondent instructed his assistant to leave the room prior to his examination. However, S.R. testified credibly that she never made that allegation and her handwritten statement to the VA advocate also contained no such allegation. That the VA advocate’s hearsay report says otherwise neither calls S.R.’s credibility into doubt nor undermines the clear and consistent nature of her testimony. his hand while holding the stethoscope between his fingers and touching her nipple. This portion of the examination lasted about ten seconds. At the end of the initial visit, Respondent discussed treatment plans, medication, and physical therapy with S.R. They scheduled a follow-up appointment for several months later. Respondent documented S.R.’s records based on his examination. Although S.R. testified credibly that she had a heart murmur, Respondent noted a regular heart rate and rhythm with no murmurs. He also continued S.R.’s prescription for Diazepam, though several months later he placed an addendum for that initial visit record to indicate the prescription was improperly entered under his name and that he would defer to S.R.’s primary care physician for that medication. S.R. thought Respondent’s conduct was weird because no doctor had ever listened to her heart under her clothes or touched her breasts in that manner. She felt confused and uncomfortable, but she did not report the incident then because she trusted Respondent as her doctor and thought it could have been a mistake. She also thought Respondent might be the only neurologist at the VA. She discussed the incident with her husband and decided that she would be more aware at subsequent appointments. On March 30, 2015, S.R. had her second visit with Respondent at the Lake Nona facility. She arrived early, but the office staff delayed bringing her back and then had trouble taking her vitals. S.R. did not request a chaperone for this visit because everyone seemed very busy. Respondent entered the room and they were again alone. Respondent seemed irritated because he thought S.R. arrived late, which made her defensive. She complained of left hip pain and told Respondent that she had not gone for physical therapy. He examined her hip by lifting her leg, which hurt. She then sat up and he said he needed to listen to her heart. Again, without attempting to listen over her t-shirt and bra, he told her to lift her t-shirt. Because of what occurred during the last visit, S.R. kept her arms tightly by her sides to limit Respondent’s ability to touch her breasts. He kept using his elbow to try to relax her arms while moving the stethoscope higher over her breasts, eventually cupping her breast under her bra. He grabbed at her breasts but got frustrated by her refusal to relax her arms. At that point, Respondent threw the stethoscope into the sink and became angry, which startled S.R. and made her uncomfortable. She requested that he continue her Diazepam prescription to help her sleep at night, which she said her prior neurologist prescribed for muscle spasms. Respondent told her that the drug was for anxiety, not muscle spasms, though he documented in her record that she should continue to take the medication. Respondent also documented again that S.R. had a regular heart rate and rhythm. S.R. felt uncomfortable during the entire visit. She had never had a neurologist get angry or confrontational with her, but she decided not to report the incidents at that time because she was in pain and just wanted to go home. About a month later, she awoke in the middle of the night and realized the inappropriateness of Respondent’s conduct. In August 2015, S.R. returned to the Lake Nona facility to schedule an appointment with a different neurologist. When she saw Respondent’s name on the signage, she immediately went to the patient advocate to report his misconduct in the hope of preventing him from engaging in the same behavior with other patients. She met with the patient advocate and the VA police, and she completed a written statement. Although she was supposed to testify before the VA investigative board, she had trouble finding the room that day and left without speaking to anyone. Based on S.R.’s decision not to pursue criminal charges and the VA’s finding of insufficient evidence to support the allegations, the VA closed the matter as unsubstantiated. However, the matter was referred for clinical and/or administrative follow- up, which resulted in the VA updating its chaperone policy to require signs to be posted in the offices to put patients on notice of their right to ask for a chaperone. S.R. did not report the incidents to the Department at the time because she did not realize she could do so. But, when the Department contacted her in 2021 about this case, she agreed to participate and testify. The undersigned found S.R. to be a highly credible witness who unequivocally testified about Respondent’s inappropriate sexual behavior. S.R.’s testimony was compelling, specific, clear, and materially consistent with the statements she made when the incidents first occurred. Respondent testified about his treatment of S.R., but he conceded he had no independent recollection of the visits. Instead, he based his testimony on what he documented in her medical records and his standard practice. Respondent testified that he conducted a thorough examination in the same manner that he evaluates all of his new patients. He performed a cardiac examination over S.R.’s clothing by placing a stethoscope on her chest in several areas to listen to her heart. He confirmed that he never places the stethoscope on, or allows his hand to come into contact with, a patient’s breasts and that it was impossible that such contact happened with S.R. even inadvertently. He also said that he always has a chaperone present if he needs to listen to a female patient’s heart under her clothing and that is exactly what he would have done had he needed to do so with S.R. Respondent denied engaging in any inappropriate behavior with S.R. and suggested instead that she misperceived what happened. However, he offered no credible explanation for S.R. having such a misperception, except to accuse her of being upset for his refusal to prescribe her Diazepam. S.R.’s medical records fail to document any cognitive impairment and Respondent confirmed that she did not suffer from hallucinations or ailments that would cause her to imagine things that did not happen. Although S.R. admitted that it took her a few months to fully realize what Respondent had done and to report it to the VA, the undersigned has no hesitation in finding her testimony to be a fair and accurate account of Respondent’s actual conduct. The records themselves also call the veracity of Respondent’s testimony into question. Although S.R. credibly testified that she had a heart murmur, Respondent documented the lack of such a murmur even after conducting two cardiovascular examinations of her. Had Respondent conducted a proper cardiac examination, he should have identified and documented her murmur. Further, it cannot be ignored that the treatment plan for both visits continued her prescription for Diazepam, even though Respondent—after the first visit but before the second visit—placed an addendum in the record to indicate that S.R. needed to obtain the prescription from her primary care physician. Respondent’s notes for the March 2015 visit also document that Diazepam continued to be an active prescription for S.R., undermining the suggestion that she would fabricate an allegation of sexual misconduct against Respondent on that basis. Moreover, Respondent’s expert neurologist had never heard of a patient fabricating sexual misconduct allegations against a doctor for failing to prescribe medication. Based on the weight of the credible evidence, the undersigned finds that the Department proved by clear and convincing evidence that Respondent engaged in sexual misconduct with S.R. During the first visit, Respondent directed S.R. to lift her shirt and inappropriately rubbed his stethoscope across her breasts and under her bra, cupped her left breast with the palm of his hand while holding the stethoscope between his fingers, and touched her nipple. During the second appointment, Respondent directed S.R. to lift her shirt again. Although S.R. kept her arms tightly against her sides to try to limit Respondent’s ability to touch her inappropriately, he inappropriately rubbed the stethoscope across her breasts, cupped her breast under her bra, and grabbed at her breasts. Respondent did so on both occasions without first attempting to listen to S.R.’s heart over her clothing, which itself was contrary to the standard of care. M.H.’s Four Appointments with Respondent in 2015 and 2016 In late 2015, the VA referred M.H., a 39-year-old veteran, to Respondent for a neurological evaluation after she had an abnormal MRI showing white matter changes in her brain following an illegal drug overdose. M.H. had four office visits with Respondent at the Lake Nona facility on August 12, 2015, November 6, 2015, June 23, 2016, and August 1, 2016. During the first three visits, Respondent discussed M.H.’s medical history, prior drug use, and symptoms, including migraines, pain, possible nerve damage, and cognitive and motor issues; he also conducted physical and neurological examinations. During the fourth visit, Respondent performed a nerve block procedure to address M.H.’s migraines. M.H. testified about the visits and her uncomfortable interactions with Respondent. During several visits, he discussed the lack of sex with his wife and that she allowed him to step outside the marriage. He either asked M.H. out on a date or to meet at a hotel, which she interpreted as an offer of sex, and he also asked if he could call her. He asked her questions about her sex life several times, including how often she had sex with her boyfriend, what positions they liked, the size of her bra, and whether sex was painful. M.H. testified that Respondent also acted inappropriately. During one visit, he either lifted her shirt or asked her to lift her shirt to look at her breasts and listen to her heart. He once blocked the door to prevent her from leaving the room and attempted to put his arms around her to hug her. He once put his hands on the bottom of her buttocks, like a lover’s caress. During the fourth visit when the nurse left the room after the procedure, he had an erection and rubbed it through his pants against her leg while trying to give her a hug. She said that she told her mother in the waiting room after that visit that Respondent had rubbed his erection on her. She also said that he told her not to say anything about their interactions at each visit. In August 2016, M.H. reported Respondent’s conduct to the VA; she did not report the conduct to the Department because she did not know she could. The VA investigative board conducted sworn interviews of M.H., Respondent, his nurse, and a medical student, and it considered numerous letters of recommendation from Respondent’s patients and colleagues. It found no conclusive evidence of sexual misconduct based on Respondent’s testimony, as corroborated by testimony from a nurse and a medical student. M.H. testified passionately about Respondent’s conduct and how it made her feel. However, her recollection of the details—as to what occurred, when, and who was present—was fuzzy and inconsistent in material ways with the testimony she gave to the VA board in 2016, her deposition testimony in this case, and the testimony of her mother. M.H. stated that her recollection in 2016 was better than now, but the inconsistencies outlined below affect the weight to be given to M.H.’s testimony. M.H. testified initially that she and Respondent were alone in the examination room at some point during each visit. M.H. testified that she asked to have her daughter present during either the third or fourth visit, but Respondent refused. M.H. also testified on cross examination that she could not recall if her mother was in the room with her during the first two visits, only to later confirm that her mother must have been present during those two visits based on the testimony she gave before the VA board in 2016. M.H.’s mother testified that she accompanied M.H. to two of the visits, though she could not recall the dates. Contrary to M.H.’s testimony, her mother said she neither came back to the examination room nor met Respondent at any visit and based her testimony solely on what M.H. said. M.H.’s mother testified that M.H. said that Respondent asked her out after one visit and rubbed his erection against her back after another visit, which contravened M.H.’s testimony that Respondent rubbed his erection against her leg while hugging her from the front. Before the VA board in 2016, and contrary to her testimony at the final hearing, M.H. said that Respondent acted professionally during the first two visits and that her mother was present in the examination room both times. M.H. testified that Respondent became unprofessional while they were alone in the room during the final two visits, at which he asked inappropriate questions about her sex life. M.H. explained that she was offered a chaperone before the third visit, but she refused because nothing unprofessional had occurred before, and that Respondent refused to allow her daughter to be in the room during the procedure on the fourth visit. M.H. said Respondent grabbed her buttocks during the third visit and, during the fourth visit, he blocked the door after the procedure, grabbed her buttocks, lifted her shirt to comment on how much he liked her breasts, and rubbed his erection through his pants on her leg. When cross-examined about the inconsistencies, M.H. testified at the final hearing that she may have been protecting Respondent by saying in 2016 that he acted professionally during the first two visits, though she now recalls him acting unprofessionally during all four visits. During her pre-hearing deposition in this case, M.H. testified that Respondent asked questions about her sex life and bra size, discussed his open marriage, and asked her out during the first visit, but he did not touch her inappropriately. M.H. testified that Respondent refused to allow her daughter to stay in the room with her during the second visit and, after the examination, he blocked the door, grabbed her and tried to hug her, rubbed his erection on her stomach and leg, and again reiterated that he was allowed to have sex outside his marriage. She testified that Respondent discussed his open marriage and asked her to date him during the third visit; M.H. said that the office refused to allow her mother to accompany her in the room. M.H. testified that the only uncomfortable thing that Respondent did during the fourth visit was ask her out repeatedly. M.H. testified that Respondent never asked if she wanted a chaperone at any of the visits, though she later acknowledged that a chaperone was present at the fourth visit. Respondent testified about his treatment of M.H. based only on what he documented in her chart, as he had no independent recollection beyond his review of her medical records. Respondent denied any inappropriate behavior with M.H. He claimed that he never allowed himself to be alone in a room with her because she was engaging in manipulative, drug-seeking behavior. He basically accused M.H. of fabricating the allegations against him because he refused to prescribe her pain medication. However, Respondent’s accusations against M.H. are questionable for several reasons. Respondent never documented in her record his concern about M.H.’s alleged drug-seeking behavior, that a chaperone needed to be present at all visits, or that she had requested pain medication. Although he documented the presence of his nurse and a medical student at the fourth visit, he failed to do the same for the first three visits. One would expect a physician—surely one as concerned about a patient’s drug-seeking history and behavior as Respondent now claims to be—to document those concerns and the presence of chaperones in the medical record to prevent any future false accusation. This is particularly so given that Respondent, at the time, had recently been accused of misconduct by S.R., which he believed was both false and based on her drug-seeking behavior. The medical records also confirm that M.H. informed Respondent at the June 2016 visit that she had been prescribed Lyrica for pain while in jail and that it was working. Respondent noted, “Renewed lyrica,” in the plan/recs section of the record for that visit. Respondent also noted Pregabalin, the generic name for Lyrica,4 in both the active and pending medication lists for both the June and August 2016 visits. The weight of the credible evidence does not support Respondent’s claim that M.H. fabricated her allegations because he refused to prescribe her pain medication, particularly given her credible testimony that she did not 4 According to WebMD, the generic name for Lyrica is Pregabalin. Available at https://www.webmd.com/drugs/2/drug-93965/lyrica-oral/details. need pain medication because Respondent continued her Lyrica prescription. It also bears repeating that Respondent’s own expert had never heard of a patient falsely accusing a doctor of sexual misconduct for refusing to prescribe medication. After evaluating the evidence, the undersigned finds M.H. generally to be a more credible witness overall than Respondent. She testified passionately and credibly about Respondent’s requests to meet her outside the office because he had an open marriage and his wife allowed such conduct. She also credibly explained how Respondent commented on the size of her breasts, grabbed her buttocks, and rubbed his erection on her. Importantly, however, the undersigned cannot ignore that the clear and convincing evidence standard applies in this case. M.H.’s recollection was too fuzzy and inconsistent to definitively find without hesitation that Respondent engaged in the exact sexual misconduct alleged by M.H. and set forth in the Amended Complaint. If the Department’s burden in this case was a mere preponderance of the evidence, the undersigned would likely find that it proved Respondent engaged in sexual misconduct with M.H. But, the clear and convincing evidence standard applies herein. And, because M.H. could not provide the type of definitive and clear testimony required in this disciplinary action, the Department failed to prove that Respondent engaged in sexual misconduct with M.H. M.V.S.’s One Appointment with Respondent in 2020 On November 30, 2020, M.V.S., a 68-year-old woman, had an initial neurology consult with Respondent at Orlando Health. M.V.S. sought a neurologist based on an abnormal MRI showing a cyst near her pituitary gland and complaints of neck pain radiating to her shoulder and arm. After filling out paperwork in the reception area, a medical assistant or nurse brought M.V.S. to an examination room. The room had an examination table, which could be lowered, a counter, and a chair. M.V.S. sat in the chair while the assistant took her vitals. Although M.V.S. has a history of blood pressure spikes, for which she has called 911 and even gone to the hospital several times, her blood pressure was within normal limits that morning. The assistant waited for M.V.S. to complete the paperwork and then left the room. Respondent entered the room a few minutes later and closed the door behind him. He wore green scrubs and a white lab coat; she wore a skirt, blouse, bra, and underwear. He and M.V.S. were alone for the remainder of the appointment. They initially discussed M.V.S.’s medical history and complaints. M.V.S. talked about her aunt, who had symptoms of Alzheimer’s disease and did not recognize her on a recent visit. She was concerned about the disease because she recently had forgotten some small details, like the name of an actor in a movie. M.V.S. did not believe she had significant memory issues, but she wanted research on the disease because it ran in her family. Respondent asked M.V.S. if she lived with anyone, which she interpreted as a question relating to her safety. She informed him that she lived alone within close proximity to a fire station. She also mentioned that her daughter lived in Orlando and her fiancé lived in Longwood. Respondent asked if she had sexual relations with her fiancé; she explained that they did not because her fiancé had prostate cancer. M.V.S. thought the question was odd given the reason for the appointment and because no other physician had ever asked that type of question before. Respondent moved on to M.V.S.’s complaints of neck pain. She explained that she experienced pain on the left side of her neck that radiated to her left shoulder and left arm. At that point, Respondent directed M.V.S. to sit on the table so he could examine her. While standing to M.V.S.’s left, Respondent rubbed and squeezed her neck and shoulders with his thumbs and fingers for a couple of minutes. No other doctor had examined her in that fashion before. He said she felt tense, but never asked if she experienced pain during the examination. She confirmed that it definitely felt like a neck and shoulder massage, which she had received many times. She noted that her cardiologist had recently palpated her neck for pain by using two fingers to poke and feel around, which was different than Respondent’s examination. Indeed, when a doctor palpates for pain, they typically use two fingertips to lightly press and prod in the trouble areas and obtain feedback from the patient about the level of pain. Respondent then examined M.V.S.’s spine while she stood in front of him. He thereafter examined her reflexes, eyes, and extremity strength while she sat on the table. He also conducted a memory test, which she passed. M.V.S. did not recall Respondent listening to her heart during the visit. At that point, Respondent directed M.V.S. to lie face-down on the table, which already was lowered. He asked if he could raise her skirt and she said, yes, because she believed it related to a muscular or skeletal examination. He raised her skirt and, over her underwear, rubbed her lower back and eventually moved down to her buttocks using both of his hands. He rubbed and squeezed both of her buttocks. She confirmed it felt like a deliberate, prolonged massage, which had never happened to her at a doctor’s office. Her mind raced, she felt frozen, and she could not believe what was happening. After one to two minutes, Respondent told her to sit up because he heard a voice. She sat on the end of the table and he began massaging and squeezing her right breast while standing on her right. He told her that he had never done this before and that she was beautiful. She thanked him in a low voice, but she was afraid and felt trapped because they were alone, there were no witnesses, and she was unsure of what he would do. Respondent asked if M.V.S. was comfortable with him massaging her breast and he stopped when she said no. He moved to her left side and explained that his wife would not have sex with him, so she permitted him to have sex outside the marriage. He asked if M.V.S. would meet him for sex and she declined. Respondent asked if that was because her fiancé would object, and she confirmed they had a commitment. At that point, Respondent pulled his lab coat back and said, “Look at this. Look what you did to me.” Respondent revealed his erect penis, which M.V.S. confirmed was clearly visible through his scrubs. Respondent told her to keep this between us, said his assistant would be in shortly with paperwork, and left the room. M.V.S. waited for about seven minutes and, when no one came, she left the room, tried to hold her composure, and checked out. She said nothing before leaving because she felt unsafe and was unsure if anyone would believe her anyway. M.V.S. turned on her car’s air conditioning and drank water to calm down. Her heart was pounding, and she feared having a blood pressure spike. As soon as she arrived home, M.V.S. called her daughter to tell her what happened. M.V.S.’s daughter, who is a nurse, told her to call the police. M.V.S. called the LMPD that afternoon. The officer with whom she spoke suggested that she file a complaint with the Department, which she did on December 6, 2020. Both the Department and the LMPD investigated the allegations, which included interviews of M.V.S. and Respondent.5 M.V.S. also reported the incident to Orlando Health risk management. The undersigned found M.V.S. to be a highly credible witness who testified passionately and definitively about Respondent’s inappropriate sexual behavior during the office visit. She immediately reported it to the LMPD and, within a week, filed complaints with both the Department and Respondent’s employer. M.V.S.’s testimony was clear, specific, detailed, compelling, and materially consistent with the interviews and statements she gave immediately following the visit. Respondent testified about his treatment of M.V.S., but—as he did with the S.R. and M.H.—he conceded he had little to no independent 5 Based on the information obtained from M.V.S. and Respondent, the LMPD placed the case into inactive status pending further evidence. recollection of her or the visit. Instead, he reviewed her medical records, which refreshed his recollection of what occurred during the visit. Respondent denied engaging in any inappropriate behavior with M.V.S. that could have been interpreted as sexual or outside the scope of a proper examination. He testified that he conducted a neurological examination, palpated her neck for pain, checked her reflexes, and conducted a memory test. He said he never massaged her neck and shoulders, touched or massaged her breasts or buttocks, discussed his marriage, solicited her to have sex, said she was beautiful, or revealed an erection through his scrubs. He also said she could not have laid face-down on the table because he never lowered the back or extended the footrest; he confirmed that he would have brought in a chaperone if he needed her to lie on the table. Respondent testified that M.V.S.’s accusations against him were the product of memory loss and cognitive impairment. Although M.V.S. reported a family history of Alzheimer’s and a fear of mild memory loss, Respondent documented that she performed well on her memory and cognitive examinations. M.V.S. and her daughter testified credibly that she did not experience significant memory loss beyond forgetting the name of an actor in a movie. Respondent himself confirmed that M.V.S. did not suffer from hallucinations or ailments that would cause her to perceive things that were not there—a point with which his expert neurologist agreed given the way Respondent documented the medical record. And, more importantly, M.V.S.’s ability to recall the specific details of the visit and do so consistently with the statements she made previously undermine Respondent’s belief that cognitive impairment caused her to fabricate her allegations. The weight of the credible evidence simply does not support the suggestion that M.V.S. misperceived, confabulated, or fabricated her allegations based on memory loss or cognitive impairment. Additionally, Respondent attempted to discredit M.V.S. by suggesting that she may have come onto him. Indeed, he testified that she was verbose and told him during their initial discussion about her history that her fiancé was older, that she was a 60s baby, and that she had not been touched in a while. Aside from M.V.S.’s credible testimony that she said no such things, it cannot be ignored that Respondent conceded that his memory of the visit was based on his review of the medical record, which contained no reference to these comments even though Respondent says they were odd. Respondent also presented evidence that M.V.S. had previously called 911 on multiple occasions relating to blood pressure spikes to undermine the veracity of her testimony. However, the recordings of the 911 calls reveal an individual who, despite being concerned about her blood pressure, is alert, aware of her surroundings, clear-headed, and in no way suffering from an illness that would raise doubts about the veracity of her testimony or her credibility overall. Based on the weight of the credible evidence, the undersigned finds that the Department proved by clear and convincing evidence that Respondent engaged in sexual misconduct with M.V.S. He inappropriately massaged her neck and shoulders, buttocks, and breast. He disclosed that he had an open marriage and solicited M.V.S. to meet him for sex outside the office. He also told her that she was beautiful and revealed his erection through his scrubs.
Conclusions For Petitioner: Kristen Summers, Esquire Elizabeth Tiernan, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 For Respondent: Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Jon M. Pellett, Esquire Pennington, P.A. 12724 Gran Bay Parkway West, Suite 401 Jacksonville, Florida 32258
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, issue a final order finding Respondent committed sexual misconduct prohibited by sections 458.331(1)(j), 458.329, and 456.063(1), suspending Respondent’s license for two years, and thereafter permanently restricting his license to either prohibit him from seeing female patients or, at a minimum, doing so without a chaperone present.7 DONE AND ENTERED this 28th day of October, 2021, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 28th day of October, 2021. 7 Section 456.072(4), Florida Statutes, provides that the Board, in addition to any other discipline imposed through final order, “shall assess costs related to the investigation and prosecution of the case.” Prior to the final hearing, the parties agreed to bifurcate the investigative costs issue (including Respondent’s argument that such costs should not be assessed because they are based on unpromulgated rules) pending resolution of the merits of the Amended Complaint. Upon further reflection, the undersigned concludes that resolving such an issue—even in a bifurcated proceeding—is premature because the Board has not yet issued a final order disciplining Respondent or followed the procedure in section 456.072(4), which requires it to consider an affidavit of itemized costs and any written objections thereto. It is in those written objections where Respondent may challenge the costs as being based on an unpromulgated rule. And, if Respondent’s written objections create a disputed issue of fact, the Department can transmit the investigative costs issue to DOAH to resolve that dispute, just as it did in Case No. 20-5385F. COPIES FURNISHED: Jon M. Pellett, Esquire Pennington, P.A. Suite 401 12724 Gran Bay Parkway West Jacksonville, Florida 32258 Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Donna C. McNulty, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Paul A. Vazquez, JD, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 Kristen Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Elizabeth Tiernan, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Edward A. Tellechea, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
The Issue The issue is whether respondent's law enforcement certification should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Base upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Lloyd H. Sisk, held law enforcement certificate number 2252 issued by petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission). Respondent has held his license since April 3, 1971. When the events herein occurred, Sisk was employed as a detective with the Charlotte County Sheriff's Department. The charges against respondent are based upon an allegation of sexual abuse lodged against him by his niece, S. C., who is now seventeen years of age. The abuse allegedly occurred between December 1986 and February 1988. To place this controversy in proper perspective, a brief discussion of the living arrangements in the Sisk household is appropriate. In 1983 respondent, his wife, Brenda, and Brenda's mother (grandmother) decided to jointly purchase a home in Port Charlotte, Florida. Also residing with the Sisks were their teen-age son, Jeffrey, and the alleged victim. The grandmother had been given legal custody over the alleged victim, who was the daughter of Janis, Brenda's sister. Janis lived in Pinellas County, but because of various legal and personal problems, she had relinquished custody of her daughter to the grandmother shortly after S. C.'s birth. In late 1986, and over the objections of the grandmother and alleged victim, the Sisks decided to sell the home. This in turn engendered antagonism and animosity between the members of the family component and eventually culminated in the sexual abuse charges being made. The home was finally sold in February 1988, or more than a year later. Before the sale occurred, the Sisks advised the grandmother and alleged victim that, because of constant friction, the grandmother and S. C. would not live with the Sisks and their son when they relocated to a new home. At almost the same time the sale took place, S. C. began making sexual abuse allegations against respondent. In this regard, the testimony is sharply conflicting. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence. The allegations first surfaced on an undisclosed date in February 1988 when S. C. told her sixteen year old boyfriend, James, that respondent had touched her breasts, buttocks and vaginal area while giving her back massages and had put a condom on his penis while in her presence. On February 17, 1988, S. C. telephoned her mother in Pinellas County and said respondent had been coming home in the afternoon and asking to give her backrubs. The alleged victim further complained that, during those backrubs, respondent was "rubbing her butt and in between her legs". That same day, S. C. told her grandmother that respondent had touched her breasts, buttocks and vaginal area while giving her backrubs. Three days later, S. C.'s mother, while in an intoxicated state, telephoned the Largo Police Department and relate the abuse allegations to a detective. That led to an investigation by the Charlotte County Sheriff's Office and the eventual filing of criminal charges by the state attorney and sexual abuse charges by the Department of Health and Rehabilitative Services (HRS). 1/ At final hearing, the former boyfriend, grandmother and natural mother related the allegations described in the previous finding of fact. In addition, statements made by S. C. to an HRS counselor were offered into evidence. Finally, the alleged victim gave her version of what transpired. This included a rather graphic account of respondent, while in the presence of S. C., placing a condom on his penis and masturbating, and after attaining an erection a few minutes later, positioning his body next to S. C. and demonstrating various coital positions to his niece. The testimony of the alleged victim is not accepted as being credible for a number of reasons. To begin with, S. C. was extremely upset with respondent because the family home was being sold and she had been told that she could not remain with the Sisks. Her animosity towards respondent is also evidenced by the fact that, just prior to final hearing, she encouraged her mother (Janis) to "slam him (respondent)" with her testimony. It is also noted that the alleged victim's testimony at hearing differed in several material respects with the complaints she made to the Commission, HRS and in prior court testimony. Finally, the testimony of Lloyd, Brenda and Jeffrey Sisk, which is accepted as being credible, demonstrated numerous inconsistencies in S. C.'s testimony. Accordingly, it is found that respondent did not commit a lewd and lascivious act in the presence of his niece by exposing his penis and masturbating, and he did not handle her breasts, buttocks and vaginal area as alleged in the administrative complaint.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED that the administrative complaint be DISMISSED, with prejudice. DONE and ENTERED this 27th day of August, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Heading 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 27th day of August, 1990.
The Issue The issue for consideration in this hearing is whether Respondent’s license as a psychologist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein the Board of Psychology was the state agency in Florida responsible for the licensing and professional discipline of psychologists in Florida. Respondent is and has been licensed as a psychologist in Florida and is subject to the jurisdiction of the Board of Psychology. During the period April 11, 1995, through August 7, 1995, Respondent was employed as a psychologist at the University of South Florida Counseling Center for Human Development. In that capacity, Respondent saw the Complainant, K.R., on several occasions and established a psychologist-client relationship with her. At the initial visit of K.R. to his office, Respondent conducted an initial intake evaluation of her and, in his client notes, defined the goal of his continued treatment of her as being to assist Ms. K.R. in stabilizing her depression; and to clarify her needs and patterns with regard to her career and relationships. Upon completing the intake evaluation of K.R., Respondent referred her to himself as treating therapist, and between the initial meeting and the end of August 1995, met with her approximately thirteen times. Review of Respondent’s notes regarding his sessions with K.R. reveals that they discussed her relationship with her parents; her relationships with men; her ability to deal with her emotions, her anxiety, and depression. K.R. relates that during many of their sessions, Respondent told her she had nice legs and was very sexy. He also told her of his personal life, including his dissatisfaction with his marriage, and it appears that he met with her outside his professional office on a purely social basis. K.R. claims Respondent told her not to tell anyone about their friendship outside the clinic. The relationship between Respondent and K.R. culminated in their engaging in sexual intercourse which resulted in her becoming pregnant. The pregnancy was subsequently aborted. As a result of their relationship, K.R. filed a complaint against Respondent with the Board of Psychology relating the sexual nature of their relationship. Subsequent to the filing of K.R.’s complaint against Respondent, and the Agency For Health Care Administration’s (Agency) filing of an Administrative Complaint against him, the Agency deposed Dr. George J. Rockwell, Jr., a retired psychologist with a specialty in school psychology. Dr. Rockwell did not meet with Respondent or speak with him in any capacity. He examined the file collected in this case regarding the allegations against Respondent, and from his review of all the material, concluded that Respondent had established a psychologist/patient relationship with K.R. This relationship involves trust and the generation in the patient of a basic belief that the psychologist has the skills and knowledge that would assist the patient in dealing with whatever problems he or she has. The patient develops the ability to talk to a non- critical, non-judgmental person in an effort to help him or her deal with their problems or concerns. The psychologist has the responsibility to create an emotionally safe environment for the patient. In this process the patient is often made vulnerable. The patient must be open with the psychologist and feel comfortable in sharing emotions and incidents which he or she would most likely not be able to share with others. It is without question a special relationship, and in Dr. Rockwell’s opinion, it is unlikely that a patient will work with a psychologist and not form that special relationship. This special relationship places upon the psychologist special responsibilities toward the patient. These include abiding by the laws and rules relating to the practice of psychology; having respect for the patient; and keeping all matters confided by the patient confidential. In addition, the psychologist has the responsibility to comport himself or herself in a manner so as to maintain a professional relationship and distance with the patient. Specifically, sexual relationships between a psychologist and his or her patient are normally prohibited as being beyond boundaries that should not be crossed. It is the psychologist’s responsibility to set the limits on behavior so as to prevent an inappropriate relationship from developing. This applies even if the patient initiates sexual advances. These advances would not excuse the psychologist from professional responsibility toward the patient. In the event the psychologist detects what appear to be inappropriate sexual advances from the patient, the psychologist had a duty to discuss this with the patient; talk about the nature of the psychologist/patient relationship; and explain that such a relationship would not be appropriate. The constrictors on the professional are even more specific in the event the psychologist finds himself or herself sexually attracted to the patient. Under no circumstances should the professional act on those feelings, but should evaluate the situation to ensure that those feelings are in no way interfering with the therapeutic relationship. There is absolutely no situation which Dr. Rockwell can think of in which it would be appropriate for a therapist to engage in sexual relations with a patient, either during or after termination of a therapy session. Inappropriate sexual contact between a therapist and a patient can have severe and deleterious effects on a patient. These might include feelings of guilt and depression, based on the patient’s belief that the inappropriate behavior was his or her fault. The patient might also feel embarrassment and be reluctant to undergo further treatment. Further, the patient would most likely lose trust in the involved therapist and potential other therapists. Dr. Rockwell concluded that notwithstanding Respondent’s contention that he saw K.R. solely for the purpose of career counseling, and at no time entered a psychologist/patient relationship with her, Respondent’s clinical notes regarding K.R. clearly indicate a professional psychologist/patient relationship was formed. An independent review of the records supports that conclusion, and it is so found. Even were the counseling limited solely to career counseling, it would still constitute counseling, the conduct of which is covered by the standards of the profession. Here, however, Dr. Rockwell is convinced that Respondent’s conduct toward K.R., as alleged, constituted sexual misconduct in the practice of psychological counseling which fell below the minimum standards of performance and professional activities when measured against generally prevailing peer performance. It is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Psychology enter a final order in this matter finding Respondent guilty of all Counts in the Administrative Complaint, and revoking his license to practice psychology in the State of Florida. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2000. COPIES FURNISHED: Maureen L. Holz, Esquire Williams & Holz, P.A. 211 East Virginia Street Tallahassee, Florida 32301 O. C. Allen, Qualified Representative 314 West Jefferson Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Kaye Howerton, Executive Director Board of Psychology 1940 North Monroe Street Tallahassee, Florida 32399-0750 Amy M. Jones, Acting General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
The Issue Does the Department of Corrections' Sexual Harassment Policy, as contained in the Pamphlet "Sexual Harassment, Your Rights and Responsibilities", in a one-page document entitled "Department of Corrections Sexual Harassment Policy", and Chapter 7 of the Department's Personnel Procedures Manual, constitute umpromulgated rules, pursuant to Section 120.535 F.S.? Are existing Department of Corrections Rules 33-4.001(4)(a), 33-4.002(4), and 33-4.003(22) and (24), F.A.C. invalid exercises of delegated legislative authority due to vagueness, pursuant to Section 120.56 F.S.?
Findings Of Fact At all times material, Petitioner has been a career-service employee working as a Parole Officer I for DOC. He has earned a master's degree in criminology. At all times material, DOC has had in effect a one-page document entitled "Department of Corrections Sexual Harassment Policy" (P-5), a Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities" (P-3), and a Personnel Procedures Manual. Chapter 7 of the Personnel Procedures Manual is entitled "Sexual Harassment Complaints" (P-6). DOC has not adopted these documents as rules, and Petitioner here challenges them as unpromulgated rules. On February 22, 1996, Petitioner received written notice that he would be suspended without pay for ten days as a result of his violation of DOC Rules 33-4.001(4)(a), 33-4.002(4) and 33- 4.003(23)(25), F.A.C., (since renumbered) and the DOC's Policy on Sexual Harassment. The letter did not rely on Chapter 7 of the agency's Personnel Procedures Manual or its Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities". Petitioner appealed this action to PERC, which subsequently entered a recommended order upholding DOC's disciplinary action. Language from PERC's recommended order, which is pertinent to this instant rule challenge is: Florida Administrative Code Rule 33-4.001(4)(a) states, in pertinent part, that 'No . . . employee shall knowingly . . . commit any act or engage in any conduct which would violate any state statute, rule, directive or policy statement.' Florida Administrative Code Rule 33-4.002(4) states, in pertinent part, that 'Each employee . . . shall perform his duties fairly and impartially and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole, probation or otherwise under his supervision, inmates and the general public.' Florida Administrative Code Rule 33-4,.003(23) states that a first offense of conduct unbecoming a public employee is punishable by a written reprimand, up to a thirty day suspension or dismissal. Florida Administrative Code Rule 33-4.003(25) states that a first offense of willful violation of rules, regulations, directives or policy statements is punishable by a written reprimand, up to a thirty day suspension or dismissal. The DOC pamphlet entitled 'Florida Department of Corrections Sexual Harassment: Your Rights and Responsibilities,' provides, in pertinent part, as follows: Sexual Harassment requires two elements: The alleged conduct must be of a sexual nature, must be unwelcome and unwanted. Sexual harassment may be any of, but not limited to, the following: * * * continued suggestions regarding invi- tations to social events outside the work place, after being told such suggestions are unwelcome; * * * prolonged staring or leering to [sic] a person; * * * 32. State of Florida, Department of Corrections, Personnel Procedures Manual, Chapter 7, Sexual Harassment, provides, in pertinent part, as follows: * * * O. Sexual Harassment - Sexual Harassment is defined as unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature from or involving an employee's supervisors, peers, subordinates or any other persons in contact with an employee or applicant during the course of the conduct of the employee's or applicant's business when: Submission to such conduct is either explicitly or implicitly a term or condition of employment; or Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or Such conduct has the purpose or effect of interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. 33. The DOC Sexual Harassment Policy provides, in pertinent part, as follows: Sexual harassment may result from unwelcome sexual advances or a hostile environment created by conduct offensive to the victim such as suggestive or lewd comments, dirty jokes, offensive pictures or physical touching. Accordingly, all employees are being placed on notice that any employee found guilty of having engaged in sexual harassment will be severely disciplined, up to and including dismissal. * * * The charge of conduct unbecoming a public employee is a general charge that is subsumed if the Agency has a more specific charge that fully describes the alleged misconduct. Ford v. Department of Health and Rehabilitative Services, 9 FCSR Para. 148 (1993); Mathis v. Department of Corrections, 6 FCSR Para. 122 (1991). In this case, I conclude that the charge of unbecoming conduct is subsumed within the charge of sexual harassment and should be dismissed. PERC's recommended order also applied the foregoing provisions. At the date of formal hearing in the instant rule challenge, PERC had issued no final order. Before this instant Division of Administrative Hearings final order could be entered, PERC had extended the time for the parties to file exceptions to its hearing officer's recommended order, and ultimately, on August 13, 1996, PERC adopted its hearing officer's recommended order, thereby rendering Petitioner subject to future disciplinary action at the second occurrence level under Rule 33-4.003, F.A.C. The final order of PERC is now under appeal by Petitioner. These facts are officially recognized, sua sponte. Petitioner received copies of the Pamphlet, the Sexual Harassment Policy, and a copy of Chapter 33-4, F.A.C., on July 16, 1993, when he began employment with the agency. He did not receive a copy of Chapter 7 of the Personnel Manual and was unaware of it until his PERC proceeding. DOC imposes disciplinary action against its employees for conduct which constitutes sexual harassment. Petitioner received periodic training in agency seminars on the agency's Sexual Harassment Policy, including annual film presentations. He did not receive similar training regarding "conduct unbecoming a public employee", which is a term utilized in Section 110.227(1), F.S., and for which an employee may be disciplined. Section 110.227(1), F.S., also permits discipline of employees for "willful violation of the provisions of law or agency rules". Rule 33-4.001(4)(a), F.A.C., provides, in pertinent part: Responsibility for Conduct of Employees, Inmates and Others. No Administrator, Superintendent, Officer-In-Charge, Supervisor, or other employee shall knowingly permit any subordinate, inmate or other person to, nor shall he, commit any act or engage in any conduct which would violate any statute, rule, directive or policy statement . . . . Petitioner claims that Rule 33-4.001(4)(a), F.A.C., is vague as applied to him because he is not an administrator, superintendent, officer-in-charge, or a supervisor. According to Petitioner, this rule in only applicable to those who supervise subordinates. Rule 33-4.002(4), F.A.C., provides in pertinent part: (4) Each employee shall keep himself physically fit, mentally alert, personally neat and clean and shall perform his duties fairly and impartially, and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole, probation or otherwise under his supervision, inmates and the general public . . . . Rule 33-4.003, F.A.C., is entitled "Range of Disciplinary Actions" and lists a number of violations. Item (22) is "Conduct Unbecoming a Public Employee"; Item (24) is "Willful Violation of Rules, Regulations, Directives, or Policy Statements". The range of disciplinary penalties is increased at the second occurrence level under the rule. The agency Policy Statement, Pamphlet and Chapter 7 of the agency Personnel Manual state that sexual harassment is conduct unbecoming a public employee and contain definitions of sexual harassment, including hostile work place sexual harassment. The first sentence of the Pamphlet states that sexual harassment is a form of sex discrimination under Title VII of the 1964 Civil Rights Act and is conduct unbecoming a public employee, as provided in Sections 110.105, 110.227 and 110.233, F.S., and Chapter 33-4, F.A.C. (Rules of the Department). The first page of the Pamphlet states EEOC guidelines defining sexual harassment, as recognized by the agency: Unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature when: Submission to such conduct is made either explicitly or implicitly a term or condition of a person's employment, or Submission to, or rejection of, such conduct by [sic] decisions affecting an individual, or Such conduct has the purpose or effect of substantially interfering with a person's work [sic] hostile or offensive working environment. The Pamphlet goes on to advise that sexual harassment requires two elements: conduct of a sexual nature/that is unwelcome and unwanted. It lists examples of harassing behavior, advises of the need to report such behavior, and explains the agency's internal complaint procedure and the procedure's protections against retaliation. It gives references for legal remedies outside the agency. Chapter 7 of the Personnel Procedures Manual states basically the same information as the Pamphlet, lists the same legal authorities and details the internal complaint procedure. It specifically provides, If there is a determination that there is cause to believe sexual harassment occurred, disciplinary action shall be taken in accordance with Chapter 33-4 Department of Corrections Rules. Chapter 7 was first effective on January 25, 1989 and last amended on March 5, 1993. It derives its authority from Title VII of the 1964 Civil Rights Act, Sections 110.105, 110.227, and 110.233, F.S., and Chapter 33-4, F.A.C. Both the agency Pamphlet and Chapter 7 of the Manual state that sexual harassment is conduct unbecoming an employee. Petitioner's position with regard to whether or not the Pamphlet and Chapter 7 of the Manual constitute unpromulgated rules appears to center on his belief that without them, employees are not on notice as to exactly what behavior constitutes sexual harassment, that they contain a subtext of what types of sexual harassment, i.e. hostile work environment, will be disciplined, or that they alone reveal that sexual harassment constitutes "conduct unbecoming". Petitioner testified that he understood blatant sexual harassment, such as unconsented physical contact, to be conduct unbecoming a public employee, but he did not have a clear understanding about the "gray areas", such as complimenting co- workers, socializing outside work, or what acts constituted hostile work place sexual harassment. However, Petitioner testified that he was on notice that the agency had an Anti-Sexual Harassment Policy and that at all times material, he knew that if he committed sexual harassment, he would be subject to discipline, up to and including termination. Petitioner admitted that if any employee engaged in actual sexual harassment against another employee, the offending employee would not command the respect of fellow employees, as described in Rule 33-4.002(4), F.A.C. He also was on notice through Rule 33-4.003, F.A.C., that he could be disciplined for "conduct unbecoming" or "willful violations of law or policy statements". He is charged at law with knowledge of Section 110.227(1) requiring discipline for "conduct unbecoming" or "willful violation" and Chapter 760 F.S., which implements Title VII of the 1964 Civil Rights Act. The agency routinely disciplines its employees for sexual harassment and has a long history of application of its Anti-Sexual Harassment Policy. Petitioner did not submit any evidence as to how Chapter 7 of the agency's Personnel Procedures Manual, the Pamphlet, or the one- page Policy Statement had any affect on him, beyond the discipline described, supra. Furthermore, there was no evidence presented to show that the agency's Sexual Harassment Policy, the Pamphlet, or Chapter 7 of the Personnel Procedures Manual have any affect on any person not employed by Respondent. There was no evidence that any of the provisions in these documents were self-executing.
