The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Gerald R. Straw, through sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes.
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Petition was received by the Division of Administrative Hearings on December 30, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department had requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. Final hearing in this cause was conducted on February 25, 1982. In the course of the final hearing, the Petitioner testified and offered as witnesses: Lois Turner, his mother; Alva Martin, R.N.; Larry Annis, Clinical Psychologist, and Kenneth Edwards, Vocational Education Instructor. The Respondent offered as witnesses: Robert Alcorn, Clinical Director for the Mentally Disordered Sex Offender Program at Florida State Hospital, and Larry Annis, Clinical Psychologist. The Respondent presented one (1) composite exhibit which was received into evidence. At all times pertinent to this proceeding, Petitioner has been in the custody of Respondent, in keeping with orders of court. His commitment has been on the basis of Chapter 917, Florida Statutes (1977), involving a breaking and entering criminal offense with related assault charges. In addition, the Petitioner has a past history in New York State for the criminal offense of sexual mischief. The arrest for the offenses in Florida occurred on July 22, 1977, and the Petitioner was committed to the Sexual Offender Program at North Florida Evaluation and Treatment Center on March 9, 1978. On August 3, 1978, a recommendation was made by staff of that facility to return the Petitioner to court for further disposition, based upon the belief that treatment had been exhausted. On September 13, 1978, he was released from that hospital program. That facility had not contacted other sex offender programs in the State of Florida prior to the release of the Petitioner and as a consequence, the Petitioner was recommitted to the Respondent by order of court dated October 31, 1978. He was placed in the sex offender program at Florida State Hospital in Chattahoochee, Florida, on January 27, 1979, and has resided in that program since that time. During his stay at Florida State Hospital, the Petitioner has undergone treatment in the program for the benefit of sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in dealing with the underlying disorder which caused his placement has reached a juncture where improvement is no longer expected in the patient. In the face of these circumstances, the Respondent has made a preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. These opinions were made known to the Petitioner and when confronted with this information, the Petitioner requested the formal hearing which is the subject of this Recommended Order. The program at Florida State Hospital has as its main focus the utilization of group therapy with adjunctive programs in recreation and occupational therapy, and this treatment regimen relies heavily on a patient's self-motivation. Respondent's Exhibit 1, admitted into evidence, is constituted of a series of clinical summaries related to the patient's performance during the course of his treatment at Florida State Hospital. In sum, the opinions stated in the clinical summaries accurately indicate that the Florida State Hospital has exhausted all available treatment for the Petitioner's underlying condition. Moreover, the presentation of the Petitioner's case to the Intra-Departmental Screening Committee, which is constituted of the administrative personnel of the various sex offender programs in the State of Florida, brought a correct perception that the Respondent has exhausted all available treatment for the Petitioner. Finally, the testimony given in the course of the hearing was in accord with those opinions expressed in the clinical summaries and the attitude of the Intra-Departmental Screening Committee. Petitioner's primary therapist, beginning in August, 1981, and continuing until the time of hearing, gave testimony in the course of the hearing. The therapist is Larry Annis, Clinical Psychologist. Annis shared the responsibility with a co-therapist until November, 1981, when he became the sole therapist for the Petitioner. Annis' testimony established that the Petitioner has been given a full and complete opportunity for participation in group therapy and in addition has been exposed to individual therapy sessions, and adjunctive therapy; to include, school, occupation and vocational training, ward government and participation in the ward milieu. The observed pattern of the Petitioner's participation in group therapy, on the part of Annis, is one of noting that the Petitioner talked to other persons in the group about their problems, but avoided talking about himself. In the group therapy sessions, Straw has denied having sexual problems and denied any guilt in connection with the underlying criminal offenses for which he stands convicted. (This was a similar attitude during the course of his stay at North Florida Evaluation and Treatment Center.) Annis indicated that the Petitioner has done well in adjunctive therapy, in particular, electrical wiring in which his performance has been exemplary. The Petitioner has not been found to be a management problem in terms of his conduct, according to Annis. The comments by Annis are correct. From Annis' observations, the Petitioner presents himself as attentative and having the ability to verbalize his feelings; however, his progress in the group therapy sessions has not been significant. In the therapy sessions, Annis has correctly identified that Straw is not interested in emotional discussions involving topics such as personal feelings, likes and dislikes, depression and anger. Petitioner is more interested in data collection and inquiring about why something is required, which is a more superficial concern. In the group sessions, Annis has found Petitioner to be truthful, if unwilling to explore personal areas such as those mentioned above, and in addition, sexual concerns. In the latter course of treatment, Annis has indicated that the matters of concern on the subject of the Petitioner's progress in the program relate to the Petitioner's ability to admit to negative feelings, anger and to explore antecedents to this type of emotion in order to arrive at alternative responses to he made to those emotions. Other specific concerns are as outlined in the fourteen (14) problem areas discussed in the August 13, 1981, clinical summary which is part of Respondent's Exhibit 1. Annis further indicated at the point where the determination was made that the treatment had been exhausted, that he, as therapist, has nonetheless continued to treat the Petitioner's condition and has undertaken a new method of dealing with the problem, to include the removal of bimonthly reports in trying to see how Petitioner would perform in a less structured environment. This technique has not been one leading to progress on the part of the Petitioner. In summary, Annis has correctly concluded that the Petitioner has reached maximum benefits from the program at Chattahoochee, and having exhausted available treatment, there would be no benefit to be derived by the Petitioner's continued participation in the program. The Unit Director at Florida State, Robert H. Alcorn, testified that the Petitioner's stay in the program was about average in terms of duration. Alcorn has observed no significant progress in the Petitioner in dealing with the underlying sexual problem. Alcorn finds the Petitioner to be socially isolated, and a person who refuses to discuss emotional matters and issues central to himself. Alcorn notes that the Petitioner deals in universal terms when dealing with the matters of daily life, to include other members of the sex offender program. Alcorn's observations are valid, and in the face of these observations, Alcorn presented the Petitioner's case to the Intra-Departmental Screening Committee and no further placement could be found for the Petitioner. In other words, it was correctly concluded that the Department, as well as Florida State Hospital had exhausted all appropriate treatment for the Petitioner. Petitioner's mother, Lois Turner, gave testimony. She has seen progress in the Petitioner's emotional demeanor and that opinion is borne out by observations of persons in the treatment program. In particular, HRS. Turner notes that her son does not now have periods in which his thinking seems to be disassociative. This is as contrasted with her observations of her son five (5) years ago when she found him to be very disoriented. HRS. Turner also observed that the Petitioner has been truthful with her in her discussions with him. Alva Martin, R.N. and therapist in the Sex Offender Program at Chattahoochee, indicated that she had treated the Petitioner from November, 1979, through May, 1980. During the course of her treatment, she observed that the Petitioner had improved in that he did not appear as withdrawn and became more involved in activities with other persons within the program. The goals in this entry level into the Sex Offender Program, which were set out by Martin for the benefit of the Petitioner, were to try to get Straw to converse more with other people about his problems and to have general conversations with individuals in the ward milieu. It was not the intention of this element of the therapy to question the Petitioner about the underlying charges for which he was placed in the program. Martin noted some progress on the part of the Petitioner in his dealing with his angry feelings and improvement in his ability to verbalize. Again, from her observations, the Petitioner was always truthful in his discussions. Kenneth Edwards, a Vocational Instructor at Florida State Hospital, first met the Petitioner in April of 1980. At that time, Edwards noted that the Petitioner lacked self-confidence and an ability to relate to others. Petitioner tended to stay by himself. There has been a dramatic improvement in this circumstance to the extent that the Petitioner now serves as an instructor for other program participants, in the field of television repair. Edwards feels that he has a good relationship with Straw and feels that Straw has improved in his relationship with other persons. Petitioner, in his testimony, indicated that he feels that he is not guilty of the offenses as charged. In addition, he feels that he has progressed while being treated in the program at Florida State Hospital, and although he feels that he still has an underlying problem with sexual acting out, he feels that he has completed the program successfully and could control any temptations of a sexual nature. He also feels that he has discussed his underlying sexual problems in the past and would be willing to in the future. He feels that he is being removed from the program because he refuses to admit that he is guilty of committing the offenses which caused him to be placed in the program. He also takes issue with the fourteen (14) problem areas set forth in the August 13, 1981, clinical summary. He thinks that any human being would have problems similar to that nature and that those are problems which are not unique to Gerald Straw. In summary, the Respondent has exhausted all appropriate treatment for the Petitioner's sexual deviance, but that treatment has not been totally successful and the patient continues to suffer with an underlying sexual disorder.
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that during the course of a doctor-patient relationship the Respondent violated Sections 458.329 and 458.331(1)(k), Florida Statutes, by engaging in sexual misconduct with a patient. The specific factual allegation is that during the course of the doctor-patient relationship the Respondent fondled the patient's genitals or otherwise engaged in inappropriate sexual contact with the patient.
Findings Of Fact Based on the stipulations of the parties, on the exhibit received in evidence, and on the testimony of the witnesses at the formal hearing, I make the following findings of fact. The Department of Professional Regulation is the state agency charged with regulating the practice of physicians pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 458, Florida Statutes. (Stipulation, Tr. 5) At all times material hereto, the Respondent, Richard P. Emerson, M.D., has been a licensed physician in the state of Florida, having been issued license number ME 0005011. (Pet. Ex. 1, Tr. 40-41, 137-139, 175, 210)2 At all times material hereto, the Respondent has held himself out as a psychiatrist. (Pet. Ex. 1, Tr. 45, 139, 155, 175, 210). The patient whose treatment forms the gravamen of this case is a 26-year-old male with a long history of emotional problems. The patient has had psychiatric problems since he was two and a half or three years old and was diagnosed as autistic at age five. He has since been diagnosed as schizophrenic and paranoid schizophrenic. He has suffered from acute schizophrenia since early childhood. A paranoid schizophrenic is enormously suspicious; he feels that someone is going to harm him. The patient has been hospitalized at least twelve times for treatment of emotional problems. (Tr. 39, 45, 64, 139, 181, 196-197, 200) The Respondent treated the patient off and on at different times between 1974 and 1984. A patient-physician relationship existed between the Respondent and the patient at all material times. (Tr. 40-41, 137-139) The patient's medical history has been marked by violent outbursts against family members, including choking his sister. His mother expressed concern that someone was going to get killed. The patient has also experienced hallucinations, delusions, sexual preoccupation, sexual concerns, and sexual gender problems. His illness has included fears that people were out to get him and that people whose conversations he could not clearly overhear were talking about him and plotting against him. (Tr. 74-75, 143-144, 196-197) On February 21, 1984, the patient was hospitalized under the care of Dr. Joel Grossman. Dr. Grossman observed psychotic symptoms and diagnosed the patient as acutely schizophrenic. Psychosis is a disturbance of thinking, feeling, and behavior in which the individual may confuse his own inner world with the outer world of reality. Acute schizophrenia is an exacerbation of the psychotic symptoms resulting in a change in one's thoughts, feelings and behavior to the extent that the individual experiences difficulty in distinguishing reality from fantasy. An individual suffering from an acute schizophrenic episode, as was the patient in this case at the time of his hospitalization in February of 1984, is less likely to be able to accurately recount the truth and to accurately distinguish between things that really happened and things that are fantasies. (Tr. 181-183, 189-190, 196-197) The patient, who is the sole accusing witness in this case, is not a credible witness. His illness interferes markedly with his ability to perceive accurately and to accurately recount the truth. The patient contradicted himself on several occasions during the hearing. He was often reluctant to answer questions. He also admitted during the hearing that he had given false answers to some questions during his deposition just to get the deposition over with. The patient has an admitted tendency to give false answers when he is in a stressful situation. The patient was obviously under a great deal of stress during his testimony at the hearing. (The findings in this paragraph are to an extent based on the entirety of the relevant testimony at the hearing. The transcript references which follow are only examples and are not exhaustive. Tr. 55, 57-59, 61-62, 77-85, 89-91, 93, 95, 97-98, 100, 108, 110-111, 113-118, 122, 132, 125, 135, 181-182, 190, 196-197, 199, 200-205, 209, 212, 223, 225, 226) The patient presently suffers from a paranoid type of schizophrenic disorder. He has suffered from this condition for a number of years. The essential features of this disorder include the following: prominent persecutory or grandiose delusions or hallucinations with persecutory or grandiose content. In addition, delusional jealousy is present. Associated features include unfocused anxiety, anger, argumentativeness, and violence. In addition, there may be doubts about gender identity or fear of being thought of as a homosexual or being approached by homosexuals. The impairment in functioning may be minimal if the delusional material is not acted upon since gross disorganization of behavior is relatively rare. Similarly, effective responses may be preserved. Often a stilted formal quality or extreme intensity in interpersonal interactions is noted. (Tr. 196-197, 201-203) The patient has exhibited signs of having gender identity doubts, fear of being thought of as homosexual, or of being approached by homosexuals. Since 1980 the patient has had fears of being homosexually attacked. In 1974 the patient masturbated himself against the furniture in the Respondent's waiting room while he was alone. It is in 1974 that the patient alleges that the Respondent rubbed or scratched his back with his shirt on at the patient's request in order to relax him; (Tr. 61, 73, 131-132, 196-197) From approximately January of 1982 until the spring of 1985, the patient and a male friend named Dale engaged in a homosexual relationship. During this three-year period, Dale massaged the patient's back on numerous occasions and fondled the patient's genitals on numerous occasions. The patient exhibited his fear of being thought of as homosexual during his testimony at the hearing. He initially denied having had a sexual relationship with Dale and exhibited some confusion regarding the relationship which was clearly sexual in nature. The patient continued to maintain that his relationship with Dale was not sexual in nature, while at the same time admitting that he permitted Dale to fondle his genitals throughout their three-year relationship. (Tr. 78, 84-85, 151) The patient has also had difficulties with insomnia since 1980 Fears and thoughts of suicide have plagued him. He has had sexual fantasies and fantasies that he was the center of attention. On such occasions, the patient sometimes called the Respondent to talk about his family problems and his concerns and upsets. The patient also called his friend Dale when he was feeling suicidal, fearful, and alone. (Tr. 110-111, 129-130, 148) The relationship between the patient and his friend Dale bears a striking resemblance to the relationship the patient alleges that he had with the Respondent. Dale massaged the patient's back, the patient called Dale when he was feeling fearful, suicidal, and lonely. Dale picked the patient up in his car and took him places. The patient allowed Dale to fondle his genitals on numerous occasions. The patient and Dale also embraced and kissed. (Tr. 85-86, 88-89, 128-130, 151) One of the patient's hospitalizations was from June 29 to July 18, 1983. During his testimony he at first insisted that this hospitalization was because of the Respondent and denied it had anything to do with his having broken up with Dale. Later in his testimony the patient admitted that his break-up with Dale was one of the problems that led to his hospitalization. This incident is another manifestation of the patient's confusion between his friend Dale and the Respondent. (Tr. 113, 118) The patient has a hostile or acrimonious attitude toward both the Respondent and the Respondent's son. He feels that they are both "sick." (Tr. 122-123) The most logical explanation of the basis for the patient's allegations against the Respondent is that the allegations result from the patient's fantasies and delusions about the nature of his relationship with the Respondent. The patient is a severely disturbed schizophrenic who distorts what he perceives. His allegations are fantasies that are nothing more than the ramblings of a very seriously psychotic individual. The patient built up a sexual delusional system about the Respondent which manifested itself as early as the 1974 masturbation incident. There is also a transference situation in which the patient has confused the nature of his relationship with his friend Dale with the nature of his relationship with the Respondent. In sum, the allegations are most likely a fabrication from the patient's insanity. (Tr. 197, 199-203, 204-205, 211-212)
Recommendation On the basis of all of the foregoing it is recommended that the Board of Medical Examiners enter a final order dismissing the Administrative Complaint against Dr. Richard P. Emerson for failure of proof. DONE AND ORDERED this 30th day of December, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1985.
The Issue Whether the Petitioner has presented clear and convincing evidence that he is of good moral character so as to receive an exemption from disqualification from employment with children or adults who are developmentally disabled, under Section 397.451, Florida Statutes (1995).
Findings Of Fact Petitioner seeks an exemption for employment in a position of special trust for which a security background check is required under Florida law. In 1977, Petitioner pled nolo contendere to a misdemeanor sexual assault for fondling an adolescent. He was sentenced to probation. Petitioner was 22 years old at the time. In 1986, Petitioner pled guilty to a felony sexual assault of a 15 year old boy, in the state of New Hampshire. Petitioner was 31 years old at the time. After serving 2 years of a 3~ to 7 year sentence, Petitioner was released from prison in 1989. Petitioner successfully completed parole and was released in March, 1993. Petitioner has not been arrested for any crime since 1986. Petitioner stated he received therapy in prison in a sexual offender program. However, Petitioner presented no evidence of attending a sexual offender program while in prison or afterwards, nor did he submit records of his treatment while in prison. Petitioner explained the circumstances surrounding the 1986 conviction for sexual assault. While working as an athletic trainer, Petitioner took advantage of a situation while he was performing massage therapy on a fifteen year old boy, he fondled and performed oral sex on the boy. Petitioner stated the victim consented, as much as a 15 year old can consent. Petitioner did not explain the circumstances surrounding the 1977 incident. Petitioner did not express remorse for any sexual misconduct that he committed other than the 1986 offense. He addressed his 1977 charge only to say that had he received more than a slap on the wrist, the 1986 sexual assault might not have occurred. Petitioner stated he was sexually abused as a child. In 1993, Petitioner received a Masters Degree in social work from Salem State College in Massachusetts. Petitioner explained he studied for his masters in social work because he would no longer be eligible for licensure as an athletic trainer. Petitioner stated it would not be appropriate for him to put his hands on adults or children, which is necessary as an athletic trainer. He feels it wouldn't be appropriate for him to be in a position where he could possibly be aroused by an adult, an adolescent or a child. Although Petitioner states he has never been aroused or interested in anyone other than what would be considered a mature adolescent or an adult. Petitioner is licensed as an independent clinical social worker in the Commonwealth of Massachusetts. In 1994, Petitioner moved to Florida to work for the Indian River Memorial Hospital in Vero Beach in the psychiatric unit of the Center for Emotional and Behavioral Health. Petitioner has been denied a license as a clinical social worker in Florida based on his history of sexual misconduct. As a result of his denial of a license, Petitioner must perform his duties under the supervision of another licensed clinical social worker. Working under someone else's supervision means he may continue to work with clients in group or individual therapy. Kathy Palezuelos, a licensed clinical social worker, has known Petitioner for two and a half years. They worked together at the Center for Emotional and Behavioral Health. She was qualified as an expert in the area of clinical social work. Ms. Palezuelos performed a mental health status examination on Petitioner on May 2, 1996. She discussed his homosexuality and the sexual offense at the time she did the mental status exam. Ms. Palezuelos described herself as more a friend than a colleague. They only worked together about six months. She was sometimes present while he did therapy if they were doing group therapy. He trained her when she first came on the job. Petitioner did not inform her of his past criminal history while they worked together. At the Center for Emotional and Behavioral Health supervision was structured loosely where the therapists would give each other feedback after presenting cases. Sara Billings is a licensed clinical social worker. She was qualified as an expert in the area of clinical social work. Ms. Billings met Petitioner in January, 1994, at the Center for Emotional and Behavioral Health. She has supervised Petitioner since that time. Ms. Billings worked with Petitioner for two years before he disclosed his criminal history involving sexual assaults. During those two years Petitioner did therapy on children as well as adults. In January, 1995, she asked Petitioner to join her in her private practice in Melbourne, Florida. Ms. Billings is not present while Petitioner does therapy. She did not feel the children being treated and their parents should be told about Petitioner's criminal history. A child is anyone under the age of 18. The Diagnostic and Statistical Manual, Fourth Edition (DSM IV) is an accepted textbook for practicing psychologists. DSM IV states that guidelines for pedophilia are an age difference of 5 plus years between the offender and the victim. Ms. Billings admitted Petitioner meets the criteria for a pedophile as set forth in the DSM IV. However, she does not believe he is a pedophile because the child Respondent molested was as physically mature as an adult. She bases this opinion on what Petitioner has related to her about his case. Dr. Deborah Day is a licensed clinical psychologist, licensed mental health counselor and a certified family mediator. Her specialty is clinical and forensic psychology specializing in physical and sexual abuse. She was the consultant for the Child Protection Team and the Sexual Abuse Treatment Program. She is presently on the Board of the Sexual Abuse Treatment Program. She has dealt with approximately 1000 cases involving sexual abuse. She was qualified as an expert in the area of sex offenders and sexual abuse. Dr. Day reviewed a file provided by the Respondent that included the mental health status exam and copies of the Petitioner's criminal records. The issues presented in the file are issues she commonly deals with in her practice. Petitioner has not provided sufficient information to make an assessment on whether he is a risk to re-offend. The Mental Status Exam only addresses current levels of functioning. Full responsibility in the course of treatment for a sex offender means getting past the defense mechanisms offenders use initially in treatment in order to keep their ego safe. Full responsibility for a person's conduct is saying the child or adolescent had nothing to do the adult's conduct. The offenders' responsibility was solely to say "no". Most homosexuals are not pedophiles. Homosexuals generally either withhold their sexuality or they hide it from the general public. A sex offender with a history of being molested as a child is common. A convicted sexual offender who has applied to work with children in a therapeutic relationship is a risk to the offender and the child. It sets up a trusting relationship where boundaries have to be closely monitored. Petitioner's statement that he was confused about his homosexuality in 1986, when he sexually assaulted the 15-year old boy, is minimization, rationalization and demonstrates a superficial understanding of what really happened. It is denial for a convicted sexual offender to say he is not aroused by children. There has to be sexual attraction if you sexually abuse a child. Petitioner will be able to continue to work as a social worker and a therapist as long as his clients are adults. Whether or not he discloses his past to adult patients is an ethical matter and not one for the present case. Petitioner has not testified with candor as to his past conduct. Moreover, Petitioner made conflicting statements and rationalizations with respect to the circumstances surrounding the crimes. He has not produced treatment records to support his claim that he received treatment in a sexual offender program. Petitioner has not demonstrated by clear and convincing evidence that he is rehabilitated and will not present a danger to children or disabled adults.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request for an exemption be DENIED. DONE AND ENTERED this 11th day of March, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1997. COPIES FURNISHED: Philip S. Paul 537 Wilson Avenue Satellite Beach, Florida 32937 Carmen Muniz Sierra, Esquire District 7 Legal Office Department of Children and Families 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Gregory D. Venz Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Rule 33-6.006(9), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact A. Standing. The Petitioner, Peter B. Dolinger, is not incarcerated by the Respondent, the Department of Corrections. The Petitioner is, therefore, not subject to the rules of the Respondent, including the rule at issue in this proceeding. The Petitioner is an independent paralegal who owns and operates a sole proprietorship specializing in prisoner related issues. The intended scope of the Petitioner's business is to include research and pleading preparation for licensed members of the Florida Bar; agency representation before state agencies, in a qualified non-attorney representative status. The Petitioner, while representing an inmate in an unrelated administrative proceeding before the Division of Administrative Hearings, Archie White v. Parole and Probation Commission, DOAH Case No. 92-2392RXP, sought the release of the inmate's records from the Respondent. The request was denied by the Respondent pursuant to Rule 33-6.006(9), Florida Administrative Code. Archie D. White v. Parole and Probation Commission, DOAH Case No. 92- 2392RXP, is no longer pending before the Division of Administrative Hearings. A Final Order was entered in that case in June, 1992. The Respondent. The Respondent is the state agency required to adopt rules governing the administration of the correctional system in Florida. Rule 33-6.006(9), Florida Administrative Code. Rule 33-6.006(9), Florida Administrative Code, provides: (9) When it is reasonably believed that a party may divulge information contained in the files of the department to an offender, the department shall restrict release of any information to that party. The Petitioner has alleged that Rule 33-6.006(9), Florida Administrative Code, "facially fails to establish an adeqaute [sic] standard for agency decisions. In other words, a person of common intelligence may imply the utilization of a 'reasonable' etst [sic] or standard thstb [sic] differs in totality from thst [sic] of another, most notably in the absence of definition, guidelines or policy on the standard to be applied."
The Issue This order concerns the Respondent's motion to dismiss this action with prejudice premised upon lack of jurisdiction of this forum specifically, it is alleged that the Petitioner does not have standing to bring an action under Section 120.57, Florida Statutes, in view of the fact that he is not considered to be a party within the meaning of Subsection 120.52(10)(d) Florida Statutes. The Respondent also asserts that the Petitioner has no legally recognizable substantial interest to be determined in this action, as would be required to establish standing to proceed under Section 120.57, Florida Statutes.
Findings Of Fact On April 17, 1980, the Petitioner, David W. Cochran, was convicted and sentenced for the offense of lewd assault on a child, a violation of Section 800.04, Florida Statutes. This conviction and sentence was entered by the Circuit Court, Criminal Division, Polk County, Florida, in Case No. CF79-1761. The Petitioner was given a ten year sentence in the State prison for that offense, with the recommendation that the Petitioner be treated as a mentally disordered sex offender. In keeping with the terms and conditions of Section 917.012, Florida Statutes (1979), the Petitioner was evaluated by the State of Florida, Department of Corrections and the State of Florida, Department of Health and Rehabilitative Services, and was placed in the mentally disordered sex offender program at the Florida State Hospital, Chattahoochee, Florida, by process of transfer from his confinement in the prison to the stated placement as an offender. At the time of the motion hearing in this cause, the Petitioner was residing at Florida State Hospital, Chattahoochee, Florida, in the sex offender program, awaiting transport by the State of Florida, Department of Corrections, back to an appropriate corrections facility, it having been determined by the State of Florida, Department of Health and Rehabilitative Services that it had exhausted all appropriate treatment for the said offender. The motion to dismiss had been occasioned in face of a petition for administrative determination which had been filed by the Petitioner with the Respondent and referred by the Respondent to the Division of Administrative Hearings for disposition. That petition calls for a determination on the question of exhaustion of treatment of the Petitioner in the aforementioned sex offender program and as stated in the Issues provision of this Recommended Order, the Respondent took the position that the hearing which the Petitioner requested pursuant to Subsection 120.57(1), Florida Statutes, could not be granted to the Petitioner for the reasons set forth in the issues statement.
The Issue This cause came on for consideration before the Hearing Officer on Respondent's motion to dismiss this proceeding for lack of jurisdiction. Specifically, Respondent asserts that Petitioner lacks standing to maintain this proceeding pursuant to Section 120.57(1), Florida Statutes, asserting that Petitioner is net a "party" within the meaning of Section 120.52 (10) Id), Florida Statutes.
Findings Of Fact On May 28, 1980, Petitioner, Charles E. Roberts, Jr., pleaded guilty to a lewd and lascivious act in violation of Section 800.04, Florida Statutes. His conviction occurred in Case No. 79-9480B, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. Thereafter, on May 30, 1980, Petitioner was adjudged guilty and sentenced to five years in the State prison system. Subsequently, Petitioner, in keeping with the terms and conditions of Section 917.012, Florida Statutes, was evaluated by the State of Florida, Department of Corrections, and the State of Florida, Department of Health and Rehabilitative Services, and was placed in the mentally disordered sex offender program at Florida State Hospital, Chattahoochee, Florida, by transfer from his confinement in the prison system to Florida State Hospital. At the time of the hearing in this cause, Petitioner was in residence at Florida State Hospital awaiting transfer back to the State prison system. By this proceeding, Petitioner seeks to contest Respondent's determination that all appropriate treatment modes for Petitioner have been exhausted.
The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Edward G. LeGer, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Petition was received by the Division of Administrative Hearings on November 9, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department had requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The hearing was conducted on December 16, 1981. In the course of the final hearing the Petitioner testified and offered as witnesses, Larry Carroll and James Thaddeus Rogers, participants in the sex offender program at Florida State Hospital in Chattahoochee, Florida. The Petitioner submitted two exhibits, composite in nature, which were admitted. Respondent called as witnesses, Robert Alcorn, Clinical Director for the Mentally Disordered Sex Offender Program at Florida State Hospital; Michael Pomeroy, Clinical Psychologist at Florida State Hospital and Connie Smith, Clinical Social Worker at Florida State Hospital. Respondent presented no exhibits. At all times pertinent to this proceeding, Petitioner has been in the custody of the Respondent, in keeping with the orders of Court and the authority of Chapter 917, Florida Statutes (1977). During that time, the Petitioner has resided at the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in the hospital program for the benefit of mentally disordered sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in the recognition of and ability to deal with the underlying conditions which caused him to be placed in this program have reached their zenith. In the face of these circumstances, the Respondent has made a preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. These opinions were made known to the Petitioner and when confronted with this information, the Petitioner requested the formal hearing which is the subject of this Recommended Order. LeGer was committed to the custody of the Respondent on February 27, 1979, the Court having found him to be a mentally disordered sex offender within the meaning of Chapter 917, Florida Statutes (1977). He was received into the program at the Florida State Hospital in Chattahoochee, Florida, on April 23, 1979, and has undergone treatment beginning on that date. The objectives of the treatment program were to deal with LeGer's long standing sexual deviation, which specific condition is pedophilia and his associated difficulty with chronic alcoholism, until he no longer evidenced himself to be a menace to society in terms of sexual "acting out" or until it was concluded that he could no longer be treated for these difficulties. (The patient also had undergone treatment as a sex offender in the 1960's.) The program at Florida State Hospital has as its central focus the utilization of group therapy with adjunctive programs in recreational and occupational therapy, and this treatment regime relies heavily on a patient's self-motivation. Petitioner's Composite Exhibit No. 1 is constituted of a series of progress reports or clinical summaries of Petitioner's condition during the course of his treatment. As can be seen, the patient has made significant progress in dealing with his condition of alcoholism and his general conduct and demeanor has been exemplary; however, he has gained little insight into his sexual condition of pedophilia. This is borne out by the patient's beliefs that the staff session of September 16, 1981, in which he expressed his firm belief that he had reached maximum benefits from the treatment program and felt that he was no longer a risk to commit the sexual offenses, in that he was aware of the consequences of his deviant behavior for himself and others. This belief is erroneous, in that the staff report and the testimony given by staff members in the course of the hearing lead to the conclusion that the patient has not gained sufficient insight and understanding as to his deviant sexual behavior, sufficient to deter him from committing future sexual offenses. Michael Pomeroy, the patient's primary therapist from May, 1980, through mid-January, 1981, by his testimony, established the fact that the Petitioner had never been open enough with Pomeroy for Pomeroy to gain an understanding about what the patient's underlying problems were. It was through the witness Pomeroy's review of the history of the case that Pomeroy learned of the patient's problems with alcoholism and pedophilia related to young females. Pomeroy correctly describes the patient's participation in the program to be superficial, with the exception of the alcoholic rehabilitation aspects of the treatment and care. In dealing with Pomeroy, the patient was evasive and his behavior evidenced a manipulative demeanor (con or criminal attitude). In dealing with the question of his sexual problem, the patient simply would tell Pomeroy that he, the patient, wanted treatment. Pomeroy found the patient to be of the persuasion that the patient did not feel that he had a problem other than alcoholism, which had been overcome, and having overcome the alcoholism, all other problems were taken care of. Pomeroy found LeGer to have no understanding of what caused him to do his sexual acting out or what to do about that acting out in the future. These attitudes by the patient continued through the time of the final hearing, according to Pomeroy. In view of the lack of insight and no clear changes in attitude during the course of treatment and the resulting belief by the Petitioner that he does not have a problem of sexual deviance, Pomeroy's testimony establishes the fact that the Respondent is unable to treat the patient's pedophilia and the fact that his condition of pedophilia still presents a danger to society. Connie Smith, the patient's therapist from January, 1981, to the present, identified the most recent analysis by the staff of the problems presented by the patient's clinical profile. Those problems are: (1) gaining insight and understanding into deviant sexual behavior; (2) defensiveness and evasiveness with regard to relating feedback about himself and events directly related to his sexual problems; (3) exploring his needs to be over attentive to the needs and problems of others; and (4) exploring his dependence on alcohol. In these areas, Smith has found that the patient has not progressed in dealing with his sexual deviation and tends to over exaggerate his progress in that area. LeGer tells the therapist that he will do what she wishes him to do to participate in the program; however, he does not believe that he needs the therapy. (This comports with the testimony which LeGer gave in the course of the hearing. Notwithstanding this belief, he stated that he wanted to stay six months more in the program and that he would have done better had the therapy been more intense. The witnesses Carroll and Rogers agreed with this latter remark by the Petitioner and also expressed a belief that the patient had successfully completed the program, opinions not supported by the other evidence and not accepted by this Hearing Officer.) According to Smith, when LeGer has occasionally discussed the event which placed him in the program on this occasion, i.e., sexual battery on a minor female, he has discussed it in a superficial way and tended to place some blame on the victim. Finally, Smith agrees with Pomeroy's perception that the patient does not have sufficient insight into his problem and continues to meet the definition of a sex offender within the meaning of Chapter 917, Florida Statutes, and will not make progress by additional stay in the program. These perceptions are well founded. The Clinical Director of the Florida State Hospital Sex Offender Program, Robert H. Alcorn, presented the Petitioner's situation through a staffing conference of program officials in the other sex offender programs offered by the Respondent. This occurred on November 2, 1981, and it was the feeling of the other program officials that they would not be able to assist the Petitioner further, and in that sense, as in the situation at Florida State Hospital, had exhausted treatment for the Petitioner's underlying sexual deviance. The Respondent has exhausted all appropriate treatment for the patient's sexual problem, but that treatment has not been totally successful and the patient continues to be a sexual menace and there is a likelihood that the patient would commit other sexual crimes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Edward G. LeGer in its sex offender programs and that said Edward G. LeGer be returned to the committing court for further disposition. DONE and ENTERED this 13th day of January, 1982, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1982. COPIES FURNISHED: Edward G. LeGer Florida State Hospital Chattahoochee, Florida 32324 Ted Mack, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue The central issue in these cases is whether Respondent is guilty of the violations alleged in the Administrative Complaints; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Department of Professional Regulation, Board of Medicine, is the state agency charged with regulating the practice of medicine in Florida. Respondent, Beltran Pages, M.D., was, at all times material hereto, a physician licensed to practice medicine in the State of Florida having been issued license number ME0036079. Respondent is a board certified psychiatrist who has practiced in the Palm Beach County area since July, 1981. Respondent left private practice in September, 1985, and is currently employed at the South Florida Evaluation and Treatment Center, an HRS facility for the criminally insane. During the period February, 1982 through September, 1982, Respondent treated Lynn Harrington (now Lynn DeGrado) at his Boca Raton office which was located in the Weir Plaza Building. This office space was shared with a Dr. Cohn. The Boca Raton office consisted of a waiting area, a hallway with bathroom, and two physician offices. The walls in this facility were not sound proof and noises could be heard, if not distinguished, between the rooms. Mrs. Harrington had a regular Tuesday appointment at 10:00 a.m. During these weekly visits Mrs. Harrington discussed her marital difficulties with Respondent. One of the problems was an affair Mrs. Harrington was having which she did not want to abandon. Mrs. Harrington did not find her husband sexually attractive and, while she hoped the sessions with Respondent would enable her to rehabilitate her marriage, the Harringtons eventually divorced. During the latter months of the marriage, Pat Harrington became aware of his wife's infidelity. Mr. Harrington felt that Respondent had misrepresented progress being made to save the Harrington marriage. Mr. Harrington amended his petition for dissolution of marriage to claim Mrs. Harrington was an unfit mother. In a sworn statement taken October 27, 1982, Mrs. Harrington claimed she and Respondent had had sexual relations during the course of her treatment. This sworn statement was given in connection with a settlement of the dissolution issues. The statement was not to be used in court since the parties had resolved all their differences regarding the children. Later, Mr. Harrington sued Respondent in a civil suit for damages in connection with the claimed sexual conduct. This suit was later dismissed by the court. During the course of treatment with Mrs. Harrington, Respondent had many frank, open conversations of a sexual nature with her. These conversations included discussions of Mrs. Harrington's affair and her fantasies. During this time the Respondent did not engage in sexual intercourse with Lynn Harrington. Mrs. Harrington's testimony that she and Respondent had engaged in sexual intercourse was not credible. Mrs. Harrington was unable to describe with any detail any incident or time during which such conduct occurred. During the period June, 1983 through November, 1984, Respondent treated Lorry Thomas at his Delray Beach office on Linton Boulevard. The walls in Respondent's Delray Beach office were sound proof. Lorry Thomas came to Respondent with a history of depression. In addition to prescribing medications for her, Respondent saw Mrs. Thomas on a weekly basis. During these sessions Respondent and Mrs. Thomas engaged in frank, open discussions of a sexual nature. These discussions led to further activities which ultimately resulted in Respondent and Mrs. Thomas engaging in sexual intercourse. The Respondent engaged in sexual intercourse with Lorry Thomas during the time she was being treated as his patient. Following the sessions with Respondent, Lorry Thomas would often emerge to the outer office in a rumpled, upset condition. This condition was observed by Respondent's receptionist/secretary, Jolene Stratton. When Mrs. Thomas determined she could not continue as both a patient and a lover, she elected to cancel appointments in an effort to continue seeing Respondent. During the course of her treatment with Respondent, Mrs. Thomas was married and living with her husband, Mike. When Mike was transferred to California, Mrs. Thomas moved there also but continued written or telephone communications with Respondent. In December, 1984, Lorry Thomas went to see a clinical psychologist in Santa Clara, California, named Jean Bayard. Mrs. Thomas complained of a despair in her life and an uneasy feeling regarding her marriage. During the course of her discussions with Dr. Bayard, Mrs. Thomas disclosed her past sexual relationship with Respondent. On one occasion Respondent "made a pass" at and kissed Ms. Stratton. This incident occurred when they were viewing pictures in a magazine featuring nude females. Respondent's denial of the sexual relationship with Lorry Thomas was not credible. It is improper for a physician to engage in sexual intercourse with a patient during that patient's treatment. Such conduct is contrary to acceptable standards for psychiatrists.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulations, Board of Medicine enter a Final Order dismissing Administrative Complaint (#30291), Case No. 87-4157. It is further recommended that a final order be entered finding Respondent guilty of the violations alleged in the Administrative Complaint (#70999) , Case No. 87-1882, imposing an administrative fine in the amount of $5000, suspending Respondent's license for six months, and placing Respondent on probation for a period of two years with appropriate supervision and restriction, and requiring such continuing education programs as the Board may deem appropriate. DONE and RECOMMENDED this 31st day of May, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-1182, 87-4157 Rulings on Petitioner's Proposed Findings of Fact: Paragraphs 1, 2 and 3 are accepted. Paragraph 4(a) is rejected as argumentative. Paragraph 4(b) is rejected as argumentative. To the extent paragraph 5 finds Respondent and Lorry Thomas engaged In sexual Intercourse during the time she was in treatment such paragraph is accepted. Otherwise, the paragraph is rejected as unsupported by the record ("wide variety of sexual activity") or argumentative. Paragraph 6 is rejected as contrary to the weight of the evidence. Paragraph 7 is rejected as contrary to the weight of the evidence. With regard to paragraph 8, only to the extent that Respondent and Lorry Thomas engaged in sexual intercourse during the time she underwent treatment is the paragraph accepted. As a matter of law, there would be a presumption she was not consenting. Otherwise, paragraph 8 is rejected as contrary to the evidence. COPIES FURNISHED: William O'Neil, Esquire Jon King, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harry D. Dennis, Jr., Esquire 1401 East Atlantic Boulevard Pompano Beach, Florida 33060 Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
