The Issue Whether Carl G. Bott, Jr., is guilty of immorality, misconduct in office and/or gross insubordination?
Findings Of Fact During the period of time at issue in this proceeding, Carl G. Bott, Jr., was an employee of the School Board of Putnam County under a continuing contract. Mr. Bott has been employed as a teacher for approximately ten years. Mr. Bott was a teacher and Dean in the County Alternative School Program during the 1984-1985 through 1988-1989 school years. During the 1984-1985 and the 1985-1986 school years the County Alternative School Program was located on the second floor of the Campbell Administrative Building. The County Alternative School Program was renamed the District Opportunity Center and was located on the Davis Lake Road side of the campus of E. H. Miller School during the 1986-1987, school year. Mr. Bott continued to work at the District Opportunity Center during the 1987-1988 school year and part of the 1988-1989 school year. During the 1984-1985 through 1988-1989 school years Diane Wilkinson was employed as a secretary for the County Alternative School Program and the District Opportunity Center. Mr. Bott was her immediate supervisor and prepared Ms. Wilkinson's evaluations during this period of time. During the 1984-1985 and 1985-1986 school years Mr. Bott was in charge of the County Alternative School Program. During the 1984-1985 and the 1985-1986 school years Mr. Bott made comments to Ms. Wilkinson of a sexual nature. In particular, Mr. Bott told Ms. Wilkinson that she had a nice ass, but that [her] stomach needed to be tightened up; and he also made statements in regard to women's nipples showing through their clothes, that's a real turn on to him, for women to get cold on for their nipples to show through their clothing.." Page 199, lines 113-17, Transcript of Administrative Hearing. Sometime during the 1985-1986 school year Mr. Bott intentionally placed his hand on Ms. Wilkinson's right breast without permission, warning or provocation. Mr. Bott's act was a sexual advance toward Ms. Wilkinson. This incident occurred while Mr. Bott and Ms. Wilkinson were in Ms. Wilkinson's small office discussing business. When Mr. Bott touched Ms. Wilkinson, she said nothing and looked at him with a shocked expression. When Ms. Wilkinson did not respond to his advance, Mr. Bott removed his hand and left the room. Ms. Wilkinson did not report the incident to anyone. Nor was anything said about the incident by Ms. Wilkinson or Mr. Bott. Approximately six to nine weeks before the County Alternative School Program was moved to Davis Lake Road, Mr. Bott came into Ms. Wilkinson's office where she was typing, walked up behind her and reached over her shoulders and intentionally touched her breast from behind without permission, warning or provocation. Again, Ms. Wilkinson said nothing. She looked at him with a shocked expression and Mr. Bott then removed his hand and left the room. On the same day that the second incident occurred, Ms. Wilkinson called Evie Shellenberger, the Director of Personnel for the Petitioner, and set up an appointment for the next day to report the incident. The day after the second incident, Ms. Wilkinson told Mr. Bott that I can have your teaching certificate lifted for sexual harassment if you ever touch me again . Page 205, lines 9-10, Transcript of Administrative Hearing. Mr. Bott told Ms. Wilkinson that he realized that she was correct, he apologized to her and promised it would never happen again. Ms. Wilkinson kept her appointment with Ms. Shellenberger and reported both incidents. She did not, however, file a sexual harassment charge against Mr. Bott. Ms. Wilkinson did not file charges because Mr. Bott had apologized and promised not to touch her again and she did not want to harm his family or his career. Ms. Wilkinson was concerned for Mr. Bott because he had a son who had been sick and Mrs. Bott had had cancer. After moving to Davis Lake Road, Mr. Bott continued to make inappropriate comments to Ms. Wilkinson of a sexual nature. The frequency of the statements increased, especially during the 1987-1988 school year. In particular, Mr. Bott made the following statements to Ms. Wilkinson: That he had been a virgin until he was 21 years old, and therefore "he needed to get all the sex he could possibly get to make up for lost time." That he masturbated in the shower with hand cream. That he had had a wet dream about her and he had to get up and clean himself up and clean the sheets up. That "he had had a dream about [them] being in the back seat of a car and that [they] had made love, and that he had climaxed all over the bed, and that it seemed so real to him that he could even smell [her] cologne." That he had calluses on the palms of his hands from masturbating. That "he could really satisfy me [Ms. Wilkinson] sexually without his teeth, and that he knew how -- he could gum me [Ms. Wilkinson] to death, and that he really knew how to satisfy women without his teeth in." That his wife "was so fat and so ugly that he had a hard time making love to her, and that he had to really fantasize when he was having sex with her, to pretend he was with someone else instead of her, because she had dimples in her ass and she was so fat and so overweight it was like she had two sets of breasts, one in the front and one in the back behind her armpit in regard to a fatty kind of area on her." That "I intend to have you [Ms. Wilkinson] in bed before we go our separate ways." That he had made love with a woman (not his wife) in his boat and he had been afraid that he was not going to be able to get his clothes on before the Florida Marine Patrol caught him. That he needed "a piece of ass from someone 18 to 21 years old because he didn't want to get too old to go out and enjoy it." The more explicit sexual statements Mr. Bott made to Ms. Wilkinson were not made continuously. There would be periods of time when he would not make such statements. There were, however, periods of time when the types of statements quoted above would be made and then he would be quiet again. Ms. Wilkinson did not ask Mr. Bott to stop making the statements. She also did not tell anyone about the statements Mr. Bott was making to her. In approximately March, 1988, Ms. Wilkinson did talk to Rita Moody, president of the union to which Ms. Wilkinson belonged, about changing positions and informed her of Mr. Bott's behavior. There were not any positions available, however, and Ms. Moody suggested that Ms. Wilkinson should not "open a can of worms" by reporting the incidents. Despite the incidents related above involving Mr. Bott and Ms. Wilkinson, Ms. Wilkinson and Mr. Bott were friendly to each other and discussed personal matters as well as matters related to their work. They ate lunch with each other on occasion and Mr. Bott gave Ms. Wilkinson rides to and from her home and the office on occasion. Ms. Wilkinson also actively assisted Mr. Bott in protecting the program they worked in and assisted him in remaining with the program because she considered him an asset to the program. At the beginning of the 1986-1987 school year, Jean Herring was assigned as an Assistant Principal in charge of the District Opportunity Center. Ms. Herring was Mr. Bott's immediate supervisor during the 1986-1987 school year. Because Mr. Bott had previously been in charge of the program, he had some resentment about Ms. Herring's position. During the Spring of 1988, Ms. Herring received a complaint from Dana Hales, a female student at the District Opportunity Center. Ms. Hales alleged that Mr. Bott was using inappropriate language and discussing inappropriate topics with female students. (See findings of fact 23 and 24). Ms. Hales indicated that she felt uncomfortable in one-on-one counseling sessions with Mr. Bott. Based upon this complaint, Ms. Herring directed Mr. Bott not to conduct any one-on-one counseling sessions with female students without including Ms. Herring in the session. The next morning, Ms. Herring discovered Mr. Bott conducting a one-on-one counseling session with a female student in violation of her directive to him. Ms. Herring did not see Mr. Bott violate the directive again. Dana Hales complained to Ms. Herring because of statements Mr. Bott made to her of a sexual nature. Those statements included a statement "that he had an affair with a young girl from where he came from before and that he wished he could find a young girl here that he could trust that ... would not tell anyone." Page 142, lines 5-8, Transcript of Administrative Hearing. Mr. Bott also made comments to Ms. Hales concerning his wife. Mr. Bott told Ms. Hales that his wife "was ugly and that she was fat, and in the morning like in the daylight that she was very ugly and unattractive." Page 142, lines 15-17, Transcript of Administrative Hearing. Tonnette Sanders moved to Putnam County after the 1987-1988 school year had begun. Therefore, she was placed in the District Opportunity Center. She was not placed there for disciplinary reasons. Ms. Sanders was approximately 17 or 18 years of age. Mr. Bott was not one of Ms. Sanders' teachers. Mr. Bott and Ms. Sanders did become friends, however, and Mr. Bott provided counseling to Ms. Sanders. While walking into an office together, Mr. Bott patted Ms. Sanders on her buttocks. Ms. Sanders believed that the touching was a sexual advance and it made her feel uncomfortable. Ms. Sanders did not return to school for several days after the incident because she was upset. When she did return, Mr. Bott apologized to her for his action. Mr. Bott also told Ms. Sanders that she was the nicest looking black girl he had had ever seen." Cynthia Bartrum Schmurmand attended the District Opportunity Center during the 1986-1987 school year. Ms. Schmurmand was 14 or 15 year of age at the time. Mr. Bott provided GED preparation training approximately 45 minutes a day to Ms. Schmurmand and other female students. Initially there were four or five students who attended the sessions. Eventually, however, only Ms. Schmurmand and another student, Wendy Parker, attended the sessions. Mr. Bott did not always provide instruction to Ms. Schmurmand and Ms. Parker. Instead, Mr. Bott, Ms. Schmurmand and Ms. Parker would just talk. During these conversations, Mr. Bott told Ms. Schmurmand and Ms. Parker that he had been out with girls their age. He also told Ms. Schmurmand and Ms. Parker that they could get older and more mature men. Mr. Bott offered to take Ms. Schmurmand and Ms. Parker out on his fishing boat with the permission of their parents. Mr. Bott told them that "they would get some beer" even though Mr. Bott knew that they were not of legal drinking age. Mr. Bott allowed Ms. Schmurmand and Ms. Parker to smoke cigarettes in his office during at least one of the sessions. Mr. Bott provided the cigarettes. The use or possession of tobacco or tobacco products on school grounds was prohibited. Mr. Bott warned the students that if they ever let anyone know that they had been allowed to smoke, he would get into trouble and so would they. In addition to Mr. Bott's duties at the District Opportunity Center, he also taught health classes until December 1988 and for approximately three years preceding the 1988-1989 school year at the St. Johns River Community College. The courses taught by Mr. Bott were extra-credit classes taken by senior high students who needed additional credits to graduate from high school. During the Fall of 1988, Mr. Bott's health class was first aid. The class met from 3:30 p.m. until 6:00 p.m. on Monday and Wednesday. The students who attended the class were from Palatka High School and were 17 years of age or older. During the Fall of 1988, Mr. Bott made inappropriate statements to, or engaged in inappropriate conduct in front of, students in his first aid class as follows: Mr. Bott told students that his wife used to have a "nice ass" and "boobs" or "big melons", and now she is "fat and ugly." Mr. Bott wore a pin during class on his shirt which had the following words printed on it: "Sex Cures Headaches." Mr. Bott wore the pin for approximately thirty minutes. When a student asked about the pin, Mr. Bott took it off and indicated that he had forgotten he had it on. While discussing body lice, Mr. Bott told the class that he had once had "crabs." He indicated that he did not know how he had gotten them, implying that he had been involved with several different women. Mr. Bott cussed in front of the students. He used the words "dam", "ass", "bitch", "God damn" and "fuck." On one occasion Mr. Bott, while waking a student up, told the class that males have sexual fantasies every eleven minutes. Mr. Bott, while discussing the subject of drugs, told the class that marijuana makes women want to have sex or that smoking marijuana makes sex better. Mr. Bott told the students a story about a boy and girl who were riding in an automobile with the gear shift located on the floor of the automobile between the two front seats. Mr. Bott indicated that the boy was driving and the girl was sitting on a pillow between the two front seats. Mr. Bott told the class that the automobile was involved in a wreck or stopped suddenly for some other reason and that the gearshift "went up the girl" or that the "gearshift jammed up in her" and that "she took it whole." Mr. Bott also told the students a story about two couples who were riding in an automobile. Mr. Bott indicated that one couple was in the back seat of the car and they were "making out." Mr. Bott then told the class that the automobile was involved in a wreck and the boy "bit the girl's nipple off." He also said that the boy "swallowed it" and that the nipple was "a beautiful one." Mr. Bott also told this story during the 1987-1988 school year. Mr. Bott, while discussing genital injuries, told the class that he knew of a man who had sustained a genital injury. Mr. Bott stated that "his balls swelled up" and that they "were the size of baseballs." Mr. Bott told the class that "oysters put lead in the pencil." During the 1987-1988 school year, Dana Hales attended Mr. Bott's health class. Ms. Hales was walking to her automobile after one class when Mr. Bott told her that she "had the [tits or breasts] of a 25 year old." Mr. Bott also told Ms. Hales during the 1987-1988 school year that she would "stand out more" if she lost some weight. Mr. Bott was referring to Ms. Hales' chest when he made this statement. Vanessa Armster was an eighteen-year-old student at Palatka High School during the Fall of 1988. Ms. Armster attended Mr. Bott's health class during the Fall of 1988. In November, 1988, Ms. Armster missed four classes, in violation of Mr. Bott's policy that students could only miss three or less classes in order to pass the class. Mr. Bott, in deviation from his policy concerning absences, told Ms. Armster that she could make up her fourth absence by coming to his classroom at the District Opportunity Center after school the day after her fourth absence. Ms. Armster had a friend take her to the District Opportunity Center at 3:00 p.m. Mr. Bott gave her work to perform. Most of the time that Ms. Armster was at the District Opportunity Center no one was present in the room with her except Mr. Bott. While Ms. Armster was performing the work given to her by Mr. Bott, Mr. Bott made the following comments to her: Mr. Bott told Ms. Armster that he was scared for her to come to the District Opportunity Center because "he didn't know how he was going to react." Mr. Bott asked Ms. Armster "are those for real?" Mr. Bott was referring to Ms. Armster's breasts. Ms. Armster took these comments to be sexual in nature. Ms. Armster, as a result of Mr. Bott's comments, felt uncomfortable and scared in a one-on-one situation with Mr. Bott. The person who was suppose to give Ms. Armster a ride home did not arrive when she was ready to leave. Mr. Bott offered to give her a ride and Ms. Armster accepted. As Mr. Bott and Ms. Armster left the building, Mr. Bott noticed a football team practicing nearby and said that "someone might think something." Mr. Bott and Ms. Armster got into his pick-up truck. While in the truck Mr. Bott was telling Ms. Armster something about a heart attack and was referring to an area of his chest or side. While trying to indicate a location on his body, Mr. Bott moved his hand toward Ms. Armster. Ms. Armster jumped back when Mr. Bott moved his hand toward her. When Ms. Armster jumped, Mr. Bott said "oh, you just thought I was going to touch there" and intentionally put his hand on Ms. Armster's right breast. When Mr. Bott touched Ms. Armster she jumped back and he laughed. Following this incident, Mr. Bott dropped Ms. Armster off. Mr. Bott's actions have affected the way in which students view him as a teacher. In addition to the effects of Mr. Bott's actions already noted, Mr. Bott's actions had the following effects: At least two students perceived that Mr. Bott looked at Ms. Armster differently than he looked at other students; and Various students in Mr. Bott's health class found many of the sexual statements and incidents to be inappropriate and, in some cases, offensive and embarrassing. Mr. Bott's preoccupation with sexual matters was further evidenced by the following incidents which occurred during the period of time at issue in this proceeding: Mr. Bott told Beverly Emmons, a secretary at E. H. Miller School, that he like the blouses that Debbie Thomas, a teacher's aide, wore because her nipples stuck out. Mr. Bott made a comment about Debbie Thomas nipples being hard while she was lifting weights. This comment was made in front of Ms. Thomas and Diane Alred, an adaptive physical education teacher. Mr. Bott also patted Ms. Thomas on the buttocks. Mr. Bott was suspended with pay by the Superintendent of the Petitioner on December 2, 1988. At a regularly scheduled meeting of the Petitioner on December 5, 1988, Mr. Bott was charged with immorality, misconduct in office and gross insubordination and was suspended without pay. By letter dated December 5, 1988, Mr. Bott requested a formal administrative hearing.
Conclusions The District School Board of Putnam County hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order. Based on the foregoing, and the recommendation made by the Hearing Officer in the above styled case, it is ADJUDGED that Carl G. Bott, Jr., is guilty of immorality and misconduct in office in violation of Florida Statutes Section 231.36(4)(c) and, accordingly, his suspension without pay from December 5, 1988 through January 5, 1990 is affirmed; it is further ADJUDGED that Carl G. Bott, Jr. is dismissed from his employment with the District School Board of Putnam County effective the date of this Order. DONE AND ORDERED this 12th day of January, 1990, in Palatka, Florida. District School Board of Putnam County Elaine Murray, Chairman
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued in this case finding that Carl G. Bott, Jr., is guilty of immorality and misconduct in office in violation of Section 231.36(4)(c), Florida Statutes, and dismissing him from his employment with the Petitioner. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0572 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-4, 34. 2 39. 3 40. 4 41. 5 42. The last two sentences are cumulative and unnecessary. 6 See 42-44. 7 Hereby accepted. 8 44. Not relevant to this proceeding. See 50. The last sentence is not supported by the weight of the evidence. 11 45. 12 46. 13 47. 14 49. 15-27 These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 28 Hereby accepted. 29a 36b. 29b 36f. 29c 36j. The last sentence is not supported by the weight of the evidence. 29d 36i. 29e 36a. 29f 36c. 29j 36g and h. 29h 36e. 29i Not supported by the weight of the evidence. 29j 36d. 30 50. 31-33 See 50. These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 36h, 37-38. The statements were made, however, in 1987 and not in 1988. Not supported by the weight of the evidence. Hereby accepted. 37 2 and 22. 38 22. 39 23. 40 22. Hereby accepted. 22 and hereby accepted. 43 21-22. 44 22. 45 Hereby accepted. 46-49 Not relevant to this proceeding. 50 Hereby accepted. 51-54 Not relevant to this proceeding. 55-56 25. 57 26. 58-59 27-28. 60 29. 61 30. 62 29-30. 63 See 31. 64 32. 65-66 33. 67 Not relevant to this proceeding. 68 31. 69 50. 70 3-5. 71 2 and 5. 72 5. 73 7. 74 Hereby accepted. 75-77 8. Ms. Wilkinson did engage in personal and sexual conversations with Mr. Bott. 78 8-9. 79 10. 80 11. 81 11-12. 82 Hereby accepted. 83 13. 84 14. 85 15. 86 16. 87 16-17. 88 18. 89 19 and hereby accepted. 90-91 Hereby accepted. 92 51. The last two sentences of 92b are rejected as hearsay. 93-101 These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 102-104 Hereby accepted. Mr. Bott's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 50. Not relevant to this proceeding. 34 and 36 c and f. 35 and hereby accepted. See 36a. Taken into account in the weight that was given to the testimony concerning the incidents they testified about. 7-9 See 50. The last sentence of proposed finding of fact 7 and all of proposed findings of fact 8 and 9 constitutes a summary of testimony. This testimony was considered in making relevant findings of fact. 10-11 Not relevant to this proceeding. Not supported by the weight of the evidence. Hereby accepted. Taken into account in the weight that was given to the testimony concerning this incident. 15-17 See 50. 18 Hereby accepted. 19-20 See 50. Although it is true that Ms. Walker testified in this manner, the testimony was rejected. Not relevant to this proceeding. See 50. 24 2. 25 See 25-28 and 50. 26 Not supported by the weight of the testimony. 27-28 See 33. 29 37. 30 37-38. 31 Not relevant to this proceeding. 32-33 This testimony was rejected. 34-35 Hereby accepted. 36 22. 37-38 Hereby accepted. Not relevant to this proceeding. 20. The last sentence is not relevant to this proceeding. Not relevant to this proceeding. 42 5. 43-44 See 17-19. Ms. Wilkinson's testimony about not discussing personal matters with Mr. Bott was based upon her definition of "personal matters." 45 Not relevant to this proceeding. 46 19. 47-48 Not relevant to this proceeding. Hereby accepted. Not relevant to this proceeding. COPIES FURNISHED: Joe H. Pickens, Esquire Post Office Box 2128 Palatka, Florida 32078-2128 Lorene C. Powell, Esquire FEA/United 208 W. Pensacola Street Tallahassee, Florida 32399-1700 Mr. C. L. Overturf Superintendent Putnam County School Board 200 South Seventh Street Palatka, Florida 32177 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue The central issue in these cases is whether Respondent is guilty of the violations alleged in the Administrative Complaints; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Department of Professional Regulation, Board of Medicine, is the state agency charged with regulating the practice of medicine in Florida. Respondent, Beltran Pages, M.D., was, at all times material hereto, a physician licensed to practice medicine in the State of Florida having been issued license number ME0036079. Respondent is a board certified psychiatrist who has practiced in the Palm Beach County area since July, 1981. Respondent left private practice in September, 1985, and is currently employed at the South Florida Evaluation and Treatment Center, an HRS facility for the criminally insane. During the period February, 1982 through September, 1982, Respondent treated Lynn Harrington (now Lynn DeGrado) at his Boca Raton office which was located in the Weir Plaza Building. This office space was shared with a Dr. Cohn. The Boca Raton office consisted of a waiting area, a hallway with bathroom, and two physician offices. The walls in this facility were not sound proof and noises could be heard, if not distinguished, between the rooms. Mrs. Harrington had a regular Tuesday appointment at 10:00 a.m. During these weekly visits Mrs. Harrington discussed her marital difficulties with Respondent. One of the problems was an affair Mrs. Harrington was having which she did not want to abandon. Mrs. Harrington did not find her husband sexually attractive and, while she hoped the sessions with Respondent would enable her to rehabilitate her marriage, the Harringtons eventually divorced. During the latter months of the marriage, Pat Harrington became aware of his wife's infidelity. Mr. Harrington felt that Respondent had misrepresented progress being made to save the Harrington marriage. Mr. Harrington amended his petition for dissolution of marriage to claim Mrs. Harrington was an unfit mother. In a sworn statement taken October 27, 1982, Mrs. Harrington claimed she and Respondent had had sexual relations during the course of her treatment. This sworn statement was given in connection with a settlement of the dissolution issues. The statement was not to be used in court since the parties had resolved all their differences regarding the children. Later, Mr. Harrington sued Respondent in a civil suit for damages in connection with the claimed sexual conduct. This suit was later dismissed by the court. During the course of treatment with Mrs. Harrington, Respondent had many frank, open conversations of a sexual nature with her. These conversations included discussions of Mrs. Harrington's affair and her fantasies. During this time the Respondent did not engage in sexual intercourse with Lynn Harrington. Mrs. Harrington's testimony that she and Respondent had engaged in sexual intercourse was not credible. Mrs. Harrington was unable to describe with any detail any incident or time during which such conduct occurred. During the period June, 1983 through November, 1984, Respondent treated Lorry Thomas at his Delray Beach office on Linton Boulevard. The walls in Respondent's Delray Beach office were sound proof. Lorry Thomas came to Respondent with a history of depression. In addition to prescribing medications for her, Respondent saw Mrs. Thomas on a weekly basis. During these sessions Respondent and Mrs. Thomas engaged in frank, open discussions of a sexual nature. These discussions led to further activities which ultimately resulted in Respondent and Mrs. Thomas engaging in sexual intercourse. The Respondent engaged in sexual intercourse with Lorry Thomas during the time she was being treated as his patient. Following the sessions with Respondent, Lorry Thomas would often emerge to the outer office in a rumpled, upset condition. This condition was observed by Respondent's receptionist/secretary, Jolene Stratton. When Mrs. Thomas determined she could not continue as both a patient and a lover, she elected to cancel appointments in an effort to continue seeing Respondent. During the course of her treatment with Respondent, Mrs. Thomas was married and living with her husband, Mike. When Mike was transferred to California, Mrs. Thomas moved there also but continued written or telephone communications with Respondent. In December, 1984, Lorry Thomas went to see a clinical psychologist in Santa Clara, California, named Jean Bayard. Mrs. Thomas complained of a despair in her life and an uneasy feeling regarding her marriage. During the course of her discussions with Dr. Bayard, Mrs. Thomas disclosed her past sexual relationship with Respondent. On one occasion Respondent "made a pass" at and kissed Ms. Stratton. This incident occurred when they were viewing pictures in a magazine featuring nude females. Respondent's denial of the sexual relationship with Lorry Thomas was not credible. It is improper for a physician to engage in sexual intercourse with a patient during that patient's treatment. Such conduct is contrary to acceptable standards for psychiatrists.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulations, Board of Medicine enter a Final Order dismissing Administrative Complaint (#30291), Case No. 87-4157. It is further recommended that a final order be entered finding Respondent guilty of the violations alleged in the Administrative Complaint (#70999) , Case No. 87-1882, imposing an administrative fine in the amount of $5000, suspending Respondent's license for six months, and placing Respondent on probation for a period of two years with appropriate supervision and restriction, and requiring such continuing education programs as the Board may deem appropriate. DONE and RECOMMENDED this 31st day of May, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-1182, 87-4157 Rulings on Petitioner's Proposed Findings of Fact: Paragraphs 1, 2 and 3 are accepted. Paragraph 4(a) is rejected as argumentative. Paragraph 4(b) is rejected as argumentative. To the extent paragraph 5 finds Respondent and Lorry Thomas engaged In sexual Intercourse during the time she was in treatment such paragraph is accepted. Otherwise, the paragraph is rejected as unsupported by the record ("wide variety of sexual activity") or argumentative. Paragraph 6 is rejected as contrary to the weight of the evidence. Paragraph 7 is rejected as contrary to the weight of the evidence. With regard to paragraph 8, only to the extent that Respondent and Lorry Thomas engaged in sexual intercourse during the time she underwent treatment is the paragraph accepted. As a matter of law, there would be a presumption she was not consenting. Otherwise, paragraph 8 is rejected as contrary to the evidence. COPIES FURNISHED: William O'Neil, Esquire Jon King, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harry D. Dennis, Jr., Esquire 1401 East Atlantic Boulevard Pompano Beach, Florida 33060 Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue to be presented is whether Respondent failed to maintain good moral character as alleged in the Administrative Complaint, in violation of Section 943.1395(7), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was certified as a law enforcement officer by the Florida Department of Law Enforcement, having been issued certificate number 281123. Respondent was employed by the City of Madison Police Department from December 2008 through July 2009. At the beginning of 2009, Respondent was 23 years old. Sometime in late December 2008 or early in 2009, Respondent received the telephone number for E.B.H. from Paige Bell, a friend of E.B.H.'s. At the time Ms. Bell gave Respondent E.B.H.'s number, E.B.H. was 16 years old. Respondent knew that E.B.H. was under the age of 18. Although the exact time-frame of the communications is unclear, in approximately January or February of 2009, Respondent and E.B.H. texted and called each for a one to two-week period. They never met in person. During their short period of communication, the two sent each other pictures of themselves so that each knew what the other looked like. E.B.H. testified that the first pictures sent were normal photos where she was clothed. After receiving those, she testified that Respondent asked her for "sexy" photos of herself wearing no underclothing. In response, E.B.H. sent him two pictures of herself, either nude or partially nude. The communication between Respondent and E.B.H. was brief, lasting no more than a few weeks. Once E.B.H. learned that Respondent was a law enforcement officer, she stopped texting him because she did not want either of them to get in trouble. Sometime after the texting stopped, the police chief for City of Madison Police Department received an anonymous complaint alleging that Respondent had possession of nude pictures of a minor female. On July 7, 2009, Sergeant Benton Ebberson was assigned to conduct an internal investigation in response to the complaint. As part of his investigation, Sergeant Ebberson spoke to several individuals who did not testify at hearing. What those individuals told him during the investigation is clearly hearsay. However, from these interviews, Sergeant Ebberson was able to gather enough information to get descriptions of the photos and identify E.B.H. as the subject of the photos. As a consequence, Sergeant Ebberson located and, with the permission of her parents, interviewed E.B.H. She admitted sending the photos to Respondent, but no longer had possession of the phone from which the texts were sent or copies of the pictures. Her father had discovered her actions and the pictures earlier in the year, and had deleted the photos and confiscated her telephone. Respondent also was interviewed as a consequence of the internal investigation. Consistent with the information he gave during his interview, he denies asking for the photos and claims E.B.H. sent them to him on her own volition. Whether he asked for the pictures is not particularly relevant. There is no dispute that E.B.H. sent and Respondent received at least two pictures of E.B.H. in which E.B.H. was wearing little or no clothing. Respondent claims that, while he received the pictures and looked at them, he did not know they were pictures of E.B.H., and therefore a minor, because the pictures did not include her face. However, he knew that the pictures were received from E.B.H.'s telephone number. Respondent did not report receiving the pictures to either his supervisors or to E.B.H.'s parents. Respondent also claims that upon receiving the pictures, he simply deleted them. His testimony to this effect is not credible. E.B.H. testified credibly that while she had sent inappropriate photographs to a former boyfriend on a separate occasion, she had sent these photographs to Respondent only. Regardless of the possible motives involved for complaining, it makes no sense that anyone would be able to complain to the police department and that the photos could be described in sufficient detail for Sergeant Ebberson to be able to locate E.B.H. unless Respondent either talked about receiving the photos or showed the photos to someone else. The photos, however, are not in evidence. E.B.H. knew she was either completely nude or only partially dressed, but could provide very little other information about the photos. No evidence was presented to indicate that the photos included a depiction of sexual conduct.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2010. COPIES FURNISHED: Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ernest M. Page, IV, Esquire Post Office Box 167 Perry, Florida 32348 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner, Mary Anna Cline (Ms. Cline), is a fifty-two year old female who was employed by USBI Company (USBI) from 1985 until November 15, 1994. USBI refurbishes the solid rocket boosters for the space shuttle program at the Kennedy Space Center, Brevard County, Florida. It employs substantially more than fifteen full-time employees. Ms. Cline was hired for the position of technical illustrator, which position is responsible for drawing mechanical components, doing illustration and charts, and preparing manuals and documents that apply to the day-to-day work of the company. She was a good employee and had excellent technical skills, as reflected in her performance evaluations and numerous commendations. At the time that she left the company, she was in a position titled "senior technical illustrator." In early 1992 the company had some internal reorganization, and Ms. Cline and a group of employees were transferred from Management Services to Documentation Support. The job duties remained substantially the same, but the new group also had responsibility for the Routing of Documents (RODS) program, which involved the tracing of detailed technical drawings, to be used on a computer mainframe by the "techs" (engineers). Documentation Support generated technical documentation for the rockets, all technical manuals, standard procedures, testing, fliers and presentations - generally all of the paperwork used by the company, including verbiage and graphics. The supervisor of Documentation Support, then and now, is a woman, Monica Teran. Approximately seventy-five percent of Ms. Cline's work group were women. In June 1992, Richard Bowen was hired by USBI as a technical illustrator and was assigned to Documentation Support. He became a coworker of Ms. Cline and their assigned work stations were side-by-side without a partition. Richard Bowen's two main hobbies are photography and computers. He was generally accepted as the computer expert in the work group; when there were problems with the computers, Richard Bowen could often work them out. Bowen's interest in photography is also more than a casual avocation. He attended photography school in Chicago when he was younger and worked with a modeling agency. He holds an occupational license to conduct a photography business and performs commercial photography services that do not conflict with his 9-5 job: weddings, portraits, some modeling photographs and some work with a theme park in Orlando. He is a member of the Audubon Society and takes wildlife photographs and does computer work for the organization. The Photograph Incident Staff in the work group were interested in Bowen's photographs. He brought samples of his pictures to work to show off. He usually left the pictures on his desk, face up, so that people could come to his work area and look at them. Some time in the latter months of 1992, Bowen purchased an expensive special soft-focus lens that gives the subject a soft, romantic, mystical look and deletes the wrinkles or blemishes. He discussed the lens with a fellow photographer at work and brought in a sample of photographs he had taken with the lens. Most of the pictures among the twelve to fifteen which he brought on this occasion were wildlife; there also were a few photographs of a model. She was bare-breasted, but was not exposed from the waist down. While there is no clear description of her pose in the record, she was described by some as nude and others as partially nude. None described the photographs as sexually suggestive or pornographic. In the early morning before work started, some female staff members were shuffling through the photographs. Ms. Cline was part of the group looking on. Bowen said something semi-jokingly like, "You might not want to look at these; there's a bare-breasted model." One of the women replied that it was nothing that she had not seen before, and continued shuffling through the photographs. Ms. Cline saw the model's photograph, remarked that the girl had pretty eyes, and returned to her own work station. Several months later, after a workshop that management had initiated to deal with problems in the workplace, Ms. Cline reported the photographs to Carol DuBray, Director of Human Resources and Darryl LeCanne, the immediate supervisor of Monica Teran. Ms. Cline was embarrassed by the photographs. Management's Response As soon as Ms. Cline left Darryl LaCanne's office, he called Monica Teran, and the two supervisors met with Richard Bowen. They informed him that USBI had a policy of not tolerating nude photography or pin-up calendars in the workplace and that his bringing the photographs to work was unacceptable behavior. Darryl LaCanne told Richard Bowen that the next time severe disciplinary action would be taken. Richard Bowen was also called in to speak with USBI's director of security, Barry Wysocki. Mr. Wysocki informed him that nude pictures were prohibited by USBI's regulations. Mr. Bowen received the message in clear terms that the matter was very serious. Bowen never again brought nude or semi-nude photographs to work and Ms. Cline never again saw such photographs at work. Offensive Shop Talk Work stations in the Documentation Support unit were divided into cubicles, some separated by dividers, some (Richard Bowen's and Ms. Cline's) were side by side, facing a partition with two other workers on the opposite side. Workers interacted within a small space and moved about to use different computer equipment, printers, files, and similar work tools. Among some of the workers there was occasional bawdy banter and comment about boyfriends, weekends and vacations, and the like. It was sexually oriented in a sophomoric, adolescent schoolyard manner. It included terms like "shit" and "fuck" and included conversation about "blow jobs" or "hard-ons," and other slang words involving male genitalia. With one exception, the language was not directed to Ms. Cline. That exception was one occasion when Richard Bowen responded to her criticism of some work with the expletive "fuck." Both male and female workers engaged in the banter, which was overheard by Ms. Cline and others. Ms. Cline was particularly offended by banter between Bowen and a female worker, Anna Silvestri, who occupied a workstation on the other side of the partition in front of Ms. Cline and Mr. Bowen. Ms. Silvestri sometimes initiated this banter. In May or June of 1993 Ms. Cline reported to her supervisor, Monica Teran, that Richard Bowen and Anna Silvestri used the word "fuck" and engaged in sexually explicit conversations. Ms. Teran went to her supervisor to see what to do about the complaint and Carol DuBray requested that Barry Wysocki conduct an investigation. Barry Wysocki interviewed and took statements from employees in the Document Support Unit, including Ms. Cline. She complained that Richard Bowen created a hostile environment; that she heard him say "fuck" on one occasion in the past two months and that she heard Anna Silvestri say the word on two occasions. Ms. Cline said that Bowen and Silvestri discussed Ms. Silvestri's sex life and that on one occasion Ms. Silvestri tried to discuss her sex life with Ms. Cline, but she cut her off with a comment that it was improper. Ms. Cline reported hearing Monica Teran and Beth Seaman use the word "fuck" in the work area. Bowen and Silvestri did not deny mild profanity and mildly sexual conversations. Other employees reported hearing some profanity, primarily "shit," "damn" and "bullshit." Richard Bowen and Anna Silvestri were seriously reprimanded by Barry Wysocki, by Barry Smoyer, by Darryl LaCanne and by Monica Teran. Each supervisor impressed on the two employees that the use of foul language was not tolerated and was against company policy. Barry Smoyer gave the two employees a letter "for the record," documenting the counselling session and reprimand. Monica Teran moved Ms. Cline to Anna Silvestri's workstation on the other side of the partition from Richard Bowen. She moved Anna Silvestri two cubicles away, with several partitions between her and Mr. Bowen. And George Roberts was placed next to Richard Bowen in Ms. Cline's former workstation. The intent by the supervisor was to accommodate Ms. Cline's concerns and to separate the two prime offenders. In the two years that he worked for USBI, including the time that he worked next to Richard Bowen, George Roberts heard nothing more than "hell" or "damn" from Bowen. Nevertheless, around August 1994, during her performance review, Ms. Cline informed Monica Teran that the sexual conversations were continuing. Ms. Teran informed her supervisors and another investigation commenced, this time by USBI's new security director, Al Eastlack. Mr. Eastlack conducted an interview with Ms. Cline, among others, and took her formal statement in September 1994. Barry Smoyer reviewed a draft report of Mr. Eastlack's investigation and although he understood the results were "inconclusive," Mr. Smoyer renewed his admonishments to Richard Bowen and Anna Silvestri in separate memoranda to the two, reminding them of USBI's intolerance of sexual harassment in any form and warning them that inappropriate language would result in disciplinary action. Alleged Threats After the photograph incident, but before she complained, Richard Bowen and Mary Anna Cline had a conflict over the use of some computer graphics software. Bowen was advocating one type of software that Ms. Cline opposed. Monica Teran had to intervene and instructed Ms. Cline to install the program and learn how to use it. After she complained about the photographs, Ms. Cline became convinced that Richard Bowen was going to retaliate. She complained to Monica Teran that she was afraid of Bowen but her complaints were non-specific. She began to complain of stress and sleep problems. Ms. Teran recommended that she go to the Employee Assistance Program (EAP) counsellor or to see her own counsellor or doctor. This was around the same time that Ms. Cline complained about the offensive language and conversations, and Ms. Cline took the recommendation to mean that Ms. Teran did not believe her, or that Ms. Teran felt Ms. Cline was at fault. Ms. Teran also commented to Ms. Cline that she should simply tell Bowen to stop talking like that. Another employee, Dorothy Stokey, who was offended by Bowen's use of "fuck" had told him to stop. Ms. Cline was too intimidated by him to confront him directly. Some time in the latter months of 1993, Monica Teran found Ms. Cline in the ladies' room crying and upset to the point of incoherence. Ms. Cline had overheard a conversation between Richard Bowen and Anna Silvestri involving a gun and made a connection between that and incidents of violence in the workplace and coworkers being shot. With the help of Barry Smoyer, Ms. Teran was able to get Ms. Cline out of the ladies' room and calmed down. Then, at Mr. Smoyer's direction, Ms. Teran called Ms. Silvestri and Mr. Bowen into her office to find out what had happened. Mr. Bowen did not have a gun at work and he had been discussing a gun show early that morning. Ms. Teran was satisfied that the discussion had been innocuous and reported her findings to Barry Smoyer. No other employee reported that Bowen had a gun or saw him with a gun. None, including Ms. Cline, ever complained that Bowen had threatened them with a gun. Alleged Retaliation Ms. Cline contends that USBI retaliated against her for reporting sexual harassment. Specifically she claims that her job duties were shifted from work on RODS, which she liked, to word processing, which she disliked and with which she had difficulty, due to some dyslexia. It is undisputed that Ms. Cline was a very competent graphics illustrator. She and Mr. Bowen and a couple of other employees in the unit were considered the core of the illustration function, and other employees in the unit preferred and were more skilled in the word processing and language component of the unit's responsibilities. However, the work assignments were not so clearly divided between "illustration" and "word processing." The production and modification of company manuals required both types of work. Monica Teran was interested in cross-training her staff to do a variety of tasks. There was a time, after mid-1993, when Ms. Cline's assignments involved word processing. She also continued to do a substantial amount of RODS work, as evidenced by handwritten logs maintained by the employees. Monica Teran never instructed the staffperson responsible for making assignments to remove Ms. Cline from RODS or other graphics work. RODS was not considered high profile or creative work since it primarily involved tracing technical components repetitively. There was a period when RODS work was put on hold. There was another period when temporary employees, such as George Roberts, were taken in to work exclusively on RODS. At no time during her employment with USBI was Ms. Cline demoted in job title or pay. In 1993 and 1994 her employment evaluations reflected a need to improve communications and attendance, but she was still rated "excellent," "good" and "acceptable" in all categories, and overall "excellent" and "good." There is no evidence to indicate that anyone tampered with Ms. Cline's computer or sabotaged her computer, as she claimed. On occasion it was necessary for Monica Teran or other staff to work at Ms. Cline's and other stations, to see if programs were loaded or the machine was set up properly. Although certain equipment, such as a printer, was located at an individual workstation, other staff needed access to that equipment. Job-Related Stress Ms. Cline's attendance did suffer and she did experience job-related stress. She went to an EAP counsellor and to a psychiatrist. She was on medication and there were problems with adjusting the type and amount of medication. Ms. Cline experienced sleep disorders; she reported falling asleep at the wheel of her car and had a minor accident. She also experienced other physical phenomena such as pains in her chest and arms, or numbness. Her psychiatrist diagnosed her medical condition as "adjustment reaction of adult life with mixed emotions, basically depression and anxiety." (T-415) Accommodation and Resignation Monica Teran's staff was located in two buildings: the modular unit occupied by Ms. Cline, Mr. Bowen, Ms. Silvestri and others; and another separate building which also included other USBI employees. Ms. Teran's staff was moved around routinely, as new employees were added or other work space needs arose. In Fall 1993 USBI offered to move Ms. Cline to the other building, allowing her to retain her same position and duties; she declined, and the company did not insist that she move. Later, Ms. Cline was offered a lateral position at the same pay and position level. Carol DuBray met with Ms. Cline to discuss this attempt to accommodate her. Ms. Cline also rejected that offer. She explained at hearing that she was afraid she would have been in line for a layoff, if she transferred. However, there is no competent evidence to support that fear. Ms. DuBray explained to Ms. Cline in their meeting that she would retain all benefits, including seniority. In fact, USBI has no departmental seniority policy. Seniority is based on the date an individual is hired by the company, rather than time within a department in the company. On November 15, 1994, Ms. Cline voluntarily resigned, citing "continuing stress brought on by sexual harassment, discrimination, retaliation and the flagrant disregard by USBI and its management in the handling of this problem. . . ." (Petitioner's exhibit no. 31) The Formal Complaints At the time she resigned Ms. Cline had already filed her complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC). That charge is dated December 6, 1993. The charge of discrimination alleges violations of Title VII of the Civil Rights Act, by sexual harassment and retaliation. It does not cite the Florida Civil Rights Act, Chapter 760, Florida Statutes. Pursuant to a worksharing agreement between EEOC and FCHR, the charge was sent to the Florida agency for initial investigation. That workshare agreement, which refers to the FCHR as the "FEPA," provides, in pertinent part: FILING OF CHARGES OF DISCRIMINATION In order to facilitate the filing of charges of employment discrimination, the EEOC and the FEPA each designate the other as its agent for the purpose of receiving and drafting charges. The FEPA shall take all charges alleging a violation of Title VII, ADEA, EPA, or the ADA where the parties have mutual juris- diction and refer them to the EEOC for dual filing, so long as the allegations meet the minimum requirements of those Acts. Each Agency will inform individuals of their rights to file charges with the other Agency and to assist any person alleging employment discrimination to draft a charge in a manner which will satisfy the require- ments of both agencies to the extent of their common jurisdiction. As part of the intake duties, investigators are to verify with the charging parties if they have filed a charge of discrimination with other agencies prior to filing the charge. For charges that are to be dual-filed, each Agency will use EEOC Charge Form 5 (or alternatively, an employment discrim- ination charge form which within statutory limitations, is acceptable in form and content to EEOC and the FEPA) to draft charges. When a charge is taken based on disability, the nature of the disability shall not be disclosed on the face of the charge. * * * H. The delegation of authority to receive charges contained in Paragraph II. a. does not include the right of one Agency to determine the jurisdiction of the other Agency over a charge. * * * DIVISION OF INITIAL CHARGE-PROCESSING RESPONSIBILITIES * * * D. EEOC will not defer or refer any charge for the FEPA to process that is not jurisdictional on its face with both Agencies. If it is apparent that one Agency might have jurisdiction when another does not, then the Charging Party will be referred to the appropriate Agency. * * * (Petitioner's exhibit no. 41) (emphasis added) A notice dated December 20, 1993, on EEOC form 212, states that the FCHR has received the charge and will initially investigate the charge. The FCHR did investigate the charge and the FCHR investigator's report is dated July 13, 1994. A document styled "Determination: No Cause" is dated August 25, 1994 and has the apparent signature of FCHR's Executive Director. An accompanying document, with the same date, is styled "Notice of Determination: No Cause" and informs Ms. Cline as complainant of her right to file her petition for relief within 35 days. The petition for relief dated September 27, 1994, was filed with FCHR, and cites the Florida Civil Rights Act of 1992, as well as Title VII. The petition alleges sexual harassment and retaliation. FCHR transmitted the petition to the Division of Administrative Hearings on October 6, 1994. The amended petition for relief, filed on April 10, 1995, and referenced in the order and notice of hearing dated May 16, 1995 deletes any reference to Title VII and recites instead that the claims for relief are based on Section 760.10, Florida Statutes. The amended petition does not claim constructive discharge nor does it mention that Ms. Cline left the company approximately five months earlier. Sexual Harassment Policy and Summary of Findings USBI has, and during the relevant period had a sexual harassment policy which provides: The Equal Employment Opportunity Commission's amended "Guidelines on Discrimination Because of Sex" include a section prohibiting sexual harassment as "unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of sexual nature when: submission to such conduct is either an explicit or implicit term or condition of employment, or submission to or rejection of such conduct is used as a basis for an employment decision affecting the person rejecting or submitting the conduct, or such conduct has the purpose or effect of unreasonably interfering with an affected person's work performance or creating an intimidating, hostile, or offensive work environment. Sexual harassment is unacceptable behavior by any USBI employee or outside vendor. Any form of harassment, like any conduct contrary to common decency or morality, cannot and will not be tolerated. The company will take whatever corrective action necessary to prevent or deal with acts of sexual harassment in the work place. (Respondent's exhibit no. 61) The policy provides names and phone numbers for persons to report sexual harassment and states that reports at that point will be confidential. Employees are informed of the policy through annual letters from the company head, through posters on the facility walls and through mandatory workshops for managers and their staff. USBI responded appropriately to Ms. Cline's complaints. Its response as to the photographs was effective; the sexually-themed banter, however, continued. The banter did not constitute sexual harassment of Ms. Cline, nor did it create a sexually hostile work environment. No one at USBI ever made a sexual advance towards Ms. Cline; no one suggested or requested sex from her or asked her for a date. No one touched her inappropriately. The sexual banter was never directed to or about her. The banter overheard by Ms. Cline, and the use of the "f word," were occasional, not daily or even weekly. The banter was not directed solely to, or about women; it was engaged in, and was overheard, by men and women, alike. The work quarters were close; the unit which included Ms. Cline was in a small "modular" building with work stations divided by movable partitions. By necessity, workers moved around the office to use various equipment. Coworkers of Ms. Cline did not find the environment sexually hostile, offensive or intimidating. No one else of the primarily female group complained about a sexually hostile or intimidating work environment. According to both a friend and her psychiatrist, Ms. Cline was more sensitive than most to profanity and off-color language. Without question, Ms. Cline suffered from stress at work. The stress was manifest in the myriad physical symptoms which caused absenteeism and loss of performance. USBI appropriately offered to Ms. Cline accommodations which would have allowed her to continue working at the same job level and salary but outside of the environment she found intolerable. She rejected the offers and voluntarily resigned. The resignation was not urged, directly or indirectly, by the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Ms. Cline's complaint and petitions for relief in this cause. DONE and ENTERED this 25th day of March, 1996, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5634 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact. Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in paragraph 60. Rejected as unnecessary. Adopted by implication in paragraph 60. Adopted in substance in paragraph 48. Rejected as unnecessary. Adopted in paragraph 50. Adopted in paragraph 52. Adopted in paragraph 53. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Subparagraphs are addressed as follows: Adopted in substance: a (but not the date), b, c, h, i, m, n. Rejected as unnecessary, immaterial or misleading: d, e, f, g, j, k, l. Rejected, as to the "escalation," as unsupported by the greater weight of the evidence; adopted generally in summary in paragraph 17; but some of the specifics alleged were not established (for example, the "sucking" statement). Rejected as a mischaracterization of the incident, although use of the word, "fuck," was proven. 19.-22. Rejected as not credible. 23.-24. Adopted in substance in paragraph 17. 25.-28. Rejected as contrary to the weight of evidence. Adopted in part in paragraphs 39-41, but it was not proven that the stress was the result of a "hostile work environment," within the scope of gender-based discrimination. Rejected as unnecessary. 31.-32. Rejected as contrary to the weight of evidence. 33.-34. Accepted that she complained, but the dates and frequency were not established with competent evidence 35. Conclusion that the steps were "inadequate" is rejected as contrary to the weight of the evidence. 36.-41. Rejected as unnecessary, immaterial, or misleading. 42. Rejected (as to characterization of "retaliation") as contrary to the weight of evidence and the law. 43.-46. Rejected as unnecessary, given the recommended disposition. Respondent's Proposed Findings of Fact. 1.-4. Adopted in substance in paragraphs 48 and 49. 5.-6. Adopted in substance in paragraph 54. 7. Adopted in paragraph 1. 8. Adopted in paragraph 55. 9. Adopted in paragraph 3. 10. Adopted in paragraph 4. 11. Adopted in paragraph 5. 12.-13. Adopted in paragraph 4. 14.-15. Rejected as unnecessary. Adopted in substance in paragraph 34. Adopted in paragraph 6. 18.-21. Adopted in paragraphs 7 and 8. 22. Adopted in paragraph 9. 23. Adopted in substance in paragraph 59. 24. Adopted in paragraph 61. 25. Adopted in paragraph 10. 26. Adopted in paragraph 12. 27.-28. Adopted in substance in paragraphs 11 and 12. 29. Adopted in paragraph 13. 30. Adopted in paragraph 27. 31. Rejected as unnecessary. 32.-35. Adopted in paragraphs 14 and 15. 36.-38. Adopted in paragraph 19. 39.-43. Adopted in paragraphs 20 and 21. 44. Adopted in paragraph 22. 45. Rejected as unnecessary. 46. Adopted in paragraph 23. 47.-48. Rejected as unnecessary. 49. Adopted in substance in paragraph 25. 50. Adopted in paragraph 24. 51. Adopted in paragraph 26. 52. Adopted in paragraph 28. 53. Adopted in paragraph 29. 54. Adopted in paragraph 31. 55. Adopted in paragraph 30. 56. Rejected as unnecessary. 57.-62. Adopted in substance in paragraphs 43 through 46. 63.-64. Adopted in part in paragraph 47; otherwise rejected as unnecessary. 65.-72. Adopted in substance in paragraphs 32 through 38. COPIES FURNISHED: Patricia E. Lowrey, Esquire Mark B. Roberts, Esquire STEEL HECTOR and DAVIS 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401 Wayne L. Allen, Esquire 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
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 The issues in this case are whether Respondent, an osteopathic physician who had a year-long consensual affair with one of his patients, committed sexual misconduct in the practice of osteopathic medicine; and if so, whether Petitioner should impose discipline on Respondent's license within the applicable penalty guidelines or take some other action.
Findings Of Fact Respondent David Simon, D.O. ("Simon"), is a family practitioner who was, at all times relevant to this case, licensed as an osteopathic physician in the state of Florida. His office was located in Palm Beach County, where he practiced medicine from 1985 through the events at issue and beyond, until at least the date of the final hearing. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed osteopathic physicians such as Simon. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Osteopathic Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. In May 2005, a 30-something year-old woman named C.K. became a regular patient of Simon's. As C.K.'s primary care physician from 2005 until the end of 2011, Simon treated C.K. for a variety of physical and psychological disorders. The nature and quality of Simon's medical care of C.K. are not in dispute, the Department having neither alleged nor proved that Simon's treatment of C.K. ever fell below the applicable standard of care, or that Simon's medical records failed to justify any course of treatment he undertook for her benefit. In or around November 2010, while their otherwise unremarkable physician-patient relationship remained intact, Simon and C.K. entered into a mutually consensual sexual relationship. This affair had its genesis in a discussion between Simon and C.K. that occurred on October 12, 2010, during an office visit. While being seen that day, C.K. expressed concern about having been exposed recently to sexually transmitted diseases as a result of experiences which she not only related in some detail to Simon, but also corroborated with photographic evidence stored in her cell phone. In view of these disclosures, Simon lost his professional detachment and entered into a flirtatious conversation of a personal, even intimate, nature with C.K. that was outside the scope of his examination or treatment of C.K. as a patient. C.K. was a willing participant in the non-clinical sexual banter which ensued. Some days or weeks later (the precise date is unavailable), C.K. stopped by Simon's office on a Friday afternoon after business hours, when Simon was there alone. The two resumed their previous, personal conversation, and C.K. proposed that they have sexual relations with one another, a suggestion to which Simon responded positively. Within weeks afterwards, Simon called C.K., and they made arrangements to meet privately after hours at his office, which they later did, as mentioned above, sometime in November 2010. Beginning with that visit, and continuing for about one year, Simon and C.K. met once or twice a month in Simon's office, alone, to engage in sexual activity.2/ Simon used his cell phone to call or text C.K. to schedule these trysts. C.K. consented to the sexual activity with Simon. She was, however, incapable of giving free, full, and informed consent to such activity with her physician.3/ Because C.K. was, at all relevant times, a competent adult, the undersigned infers that her incapacity to freely give fully informed consent stemmed from Simon's powerful influence over her as a patient of his. C.K. and Simon did not have sexual relations during, or as part of, any visit that C.K. made to Simon's office for the purpose of seeking medical advice or care. In other words, doctor's appointments did not provide occasions, or serve as cover, for intimate rendezvous. There is no persuasive evidence that Simon ever tried to convince C.K. that their sexual encounters would be therapeutic or were somehow part of a course of purported medical treatment or examination. Rather, Simon testified credibly (and it is found) that he and C.K. kept their personal and professional relationships separate and distinct.4/ The Department has made much of the type of sexual acts that Simon and C.K. engaged in. Simon described their behavior, somewhat euphemistically, as "sexually adventurous." The Department, in contrast, has implied that Simon is a paraphiliac or pervert, a contention which the undersigned rejects as not just unsupported, but disproved by the evidence. Although at least some of the sexual conduct in question might fairly be dubbed unconventional, more important is that every interaction between these adults took place in private, within the context of mutual consent. There is, moreover, no clear and convincing proof in this record of sexual violence or aggression, nor any evidence of actual injury, damage, or harm. For reasons that will be discussed, the undersigned has concluded that the details of Simon and C.K.'s sexual encounters are irrelevant to the charges at hand; thus, no additional findings about the specific sexual activities are necessary. Simon's liaison with C.K. lasted until late December 2011, at which time C.K. abruptly terminated the relationship. The evidence fails to establish C.K.'s reasons for doing so. Thus, the circumstances surrounding the end of the affair, of which scant evidence was presented in any event, are irrelevant. In the wake of the break up, Simon's affair with C.K. became a matter of public knowledge, gaining him the sort of notoriety few physicians would covet. Facing personal disaster and professional ruin, Simon sought counseling from Helen Virginia Bush, a specialist in sex therapy who is licensed both as a clinical social worker and as a marriage and family therapist. Ms. Bush counseled Simon on subjects such as professional boundaries and erotic transference. At her urging, Simon attended and successfully completed the PBI Professional Boundaries Course, a nationally recognized program for doctors and others at risk of developing inappropriate personal relationships with patients or clients. Ms. Bush testified credibly that in her opinion, which the undersigned accepts, Simon is unlikely to enter into another sexual relationship with a patient or attempt to do so. Simon shares office space and staff with Mary Scanlon, D.O., a physician who, like Simon, specializes in family medicine. Although she has an independent practice, Dr. Scanlon works in close proximity to Simon, whom she met in 2000 during her residency when Simon was the attending physician. Dr. Scanlon believes Simon to be an excellent physician from whom she has learned much about practicing medicine, and her credible testimony that Simon's patients hold him in high regard and have largely stood by him throughout this scandal is accepted. Dr. Scanlon was an effective character witness for Simon who favorably impressed the undersigned with her earnest and forthright demeanor. That she has elected to continue practicing in the office she shares with Simon despite the public disclosure of Simon's disgraceful dalliance with C.K. (which she in no way condoned or tried to excuse), even though she is not contractually bound to stay there, manifests genuine support of and respect for Simon, and tells the undersigned—— more persuasively than any testimony——that his career is worth saving. This is the first time that any disciplinary action has been taken against Simon's medical license. Ultimate Factual Determinations The evidence establishes, clearly and convincingly, that Simon exercised influence within the patient-physician relationship, albeit probably unwittingly, for purposes of engaging C.K. in sexual activity. This ultimate finding is based in part on an inference which follows from the presumed fact of C.K.'s incapacity to consent to sexual activity with Simon, but also on other circumstances, the most salient of which are that the initial steps toward the affair were taken during a medical examination, and that all of the sexual activity at issue occurred in the doctor's office. It is therefore determined, as a matter of ultimate fact, that Simon is guilty of engaging in sexual misconduct with a patient, as more fully defined in section 459.0141, Florida Statutes, which is a disciplinable offense punishable under section 459.015(1)(l).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a final order finding Simon guilty of committing sexual misconduct with a patient, which is punishable under section 459.015(1)(l), Florida Statutes. Because this is Simon's first such offense, it is further RECOMMENDED that Simon be placed on probation for two years subject to such reasonable terms and conditions as the board deems appropriate, and that an administrative fine of $10,000 be imposed. DONE AND ENTERED this 30th day of July, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2014.
The Issue The issues are whether Petitioner committed an unlawful employment practice by discriminating against Petitioner based on her sex in violation of Section 760.10(1)(a), Florida Statutes (2008), and by retaliating against her contrary to Section 760.10(7), Florida Statutes (2008).
Findings Of Fact Respondent hired Petitioner as Finance Director in September 2005. Petitioner took the position during a very challenging time because the budget was immediately due, an audit was six months past due, and allegations of embezzlement had been lodged against the former finance director. Petitioner successfully managed these challenges. Petitioner reported directly to the City Manager. The City Manager reported to the City Commissioners. The City Manager directed the day-to-day supervision and management of Petitioner and other department heads. Bill Veach was the City Manager when Respondent hired Petitioner. Mr. Veach gave Petitioner excellent performance evaluations. Additionally, Randy Bush, City Commissioner from 2002 to 2006, and Bob Mish, City Commissioner from 2004 to 2006, commended Petitioner for her work. At the time of the hearing, Ron Vath had been a City Commissioner for eight years. Mr. Vath frequently went to the City Hall to pick up his mail. He often asked Petitioner to compile information or answer questions related to finance matters, especially during budget time. Initially, Mr. Vath was satisfied with Petitioner's work performance. In addition to seeking financial information from Petitioner, Mr. Vath made inappropriate sexual comments to Petitioner. For instance, Mr. Vath would look at Petitioner and say "yum yum." He commented on Petitioner's clothes as being sexy and told her that she "had very nice looking legs." On one occasion, Mr. Vath and Petitioner were standing near the copy machine. Mr. Vath stated in a very low tone, "I don't know what's been going on with my mind lately, it could be the new medication I'm on, but I've been having very erotic dreams lately and you've been in some of them." Sometime in June or July 2006, Mr. Vath was in or near Petitioner's office cubicle discussing some figures. When Mr. Vath became very quiet, Petitioner inquired if he was okay. Mr. Vath then leaned across Petitioner's desk, looked her straight in the eye, and said, "I'm okay, but I have a very big hard on right now." Petitioner pushed her chair away from her desk and told Mr. Vath, "You need to go home and take that up with your wife." After Mr. Vath's inappropriate comment, Petitioner saw James Ramer, Respondent's Water Plant Superintendent. Petitioner told Mr. Ramer that Mr. Vath had made a pass at her. Roger Free was Respondent's Chief of Police until September 2007. Petitioner told Chief Free about Mr. Vath's "hard on" comment. Chief Free advised Petitioner to follow Respondent's procedures and talk to Mr. Veach. A couple of days later, Petitioner verbally reported Mr. Vath's "hard on" comment to Mr. Veach. Mr. Veach suggested that Petitioner file a complaint. Petitioner told Mr. Veach that she did not want to file a written complaint because it might cause her trouble. Mr. Veach honored her request and did not make a written record of the complaint or perform any type of investigation. Bernard Murphy became Interim City Manager in September 2006. When he took the position, Petitioner was introduced to him as "someone people liked and could do good work." In November 2006, Petitioner told Mr. Murphy about Mr. Vath's "hard on" comment. Once again Petitioner decided that she did not want to make a formal complaint followed by an investigation. Mr. Murphy did not make a written record of the allegations, but he told Petitioner to let him know if it happened again. Petitioner requested that Mr. Murphy keep her concern about Mr. Vath's comment confidential. Mr. Murphy honored that request until he learned that Petitioner was telling other city employees and city commissioners. Mr. Murphy then questioned Mr. Vath, who denied making the inappropriate comment. Mr. Vath's attitude toward Petitioner immediately changed. He continued to question Petitioner about her work and to complain to Mr. Murphy about her job performance. However, Petitioner did not experience anymore specific instances of sexually inappropriate comments from Mr. Vath. At all times relevant here, Elizabeth Kania was Mr. Murphy's assistant/human resource director. Months after the incident occurred, Petitioner told Ms. Kania, in an informal conversation, about Mr. Vath's "hard on" comment. Petitioner told Ms. Kania that Petitioner would not report it unless it happened again. Petitioner complained on a regular basis to Ms. Kania about Mr. Vath's questions and requests for additional financial information that added to Petitioner's workload. Elizabeth Mathis was Respondent's utility services manager. Petitioner supervised Ms. Mathis whose workspace was approximately three feet from Petitioner's cubicle. At some point in time, Petitioner told Ms. Mathis about Mr. Vath's sexually inappropriate comment. Kathleen Doyle served as an accountant under Petitioner's supervision. Petitioner complained to Ms. Doyle about one sexually inappropriate comment by Mr. Vath. Ms. Doyle also observed that Petitioner took offense to Mr. Vath's questions. Mr. Murphy, Petitioner, and other members of Petitioner's staff often told off-color jokes to each other. They occasionally used vulgar language and made profane statements in the work place. As a participant in this type of inappropriate office behavior, Petitioner was in no position to complain. Occasionally, Mr. Murphy made specific inappropriate comments that Petitioner never complained of until she resigned. For example, he referred to his former assistant as having big tits. He also stated that his dermatologist was sexy and that a woman in a bathing suit outside his window was attractive. After returning from a humanitarian mission to India, Mr. Murphy stated that Indian women were sensual. These comments occurred over a period of many months. Initially, Petitioner and Mr. Murphy were on a first name basis. However, as time went on, Mr. Murphy began to have justifiable concerns about Petitioner's work performance. At times, Mr. Murphy would become angry and raise his voice at Petitioner. On another occasion, Mr. Murphy inappropriately used his finger to "flip a bird" at Petitioner as he walked off after a disagreement about Petitioner's work. However, there is no persuasive evidence that Mr. Murphy's inappropriate conduct was in retaliation for Petitioner's allegations against Mr. Vath. Mr. Murphy's only formal disciplinary action against Petitioner concerned an attendance issue. He gave Petitioner a written reprimand on April 8, 2008, because she misrepresented the reason for taking sick leave. Petitioner admits that she was not absent on April 7, 2008 due to illness. Instead, Petitioner was in Savannah, Georgia, interviewing for the position that she presently holds. The greater weight of the evidence refutes Petitioner's claim that she was constructively discharged. Petitioner first reported her allegation of sexually offensive behavior against Mr. Murphy in her resignation letter dated April 22, 2008. Specifically, Petitioner claimed that Mr. Murphy spoke about women as being "sensual" and that he made comments about bodily characteristics of women. Petitioner complained about Mr. Murphy's management style of verbal abuse as being belittling, demeaning, and offending. City Commissioner Jane Mealy investigated the complaints contained in Petitioner's resignation letter. Ms. Mealy was unable to substantiate the allegations of sexually inappropriate and harassing behavior. Petitioner had been looking for another job for over one and one-half years because of her low tolerance to criticism. Petitioner resigned her employment with Respondent only after she received an offer of employment from her current employer, Chatham Area Transit Authority. At all relevant times, Petitioner was aware of Respondent's sexual harassment policy. The policy defines sexual harassment as "[u]nwelcome sexual advances of whatever nature, requests for sexual favors or other verbal or physical conduct of a sexual nature." See Section 2-200, Personnel Code of City of Flagler Beach (Personnel Code). Section 2-202 of the Personnel Code states as follows: The city shares a common belief that each employee should be able to work in an environment free of discrimination, and any form of harassment, based on race, color, religion, age, sex, pregnancy, national origin, handicap or marital status. To help assure that none of our employees feel that they are being subjected to harassment and in order to create a comfortable work environment, the city prohibits any offensive physical written or spoken conduct regarding any of these items, including conduct of a sexual nature. This includes: Unwelcome or unwanted advances, including sexual advances. Unwelcome requests or demands for favors, including sexual favors. Verbal or visual abuse or kidding that is oriented toward a prohibited form of harassment, including that which is sexually oriented and considered unwelcome. Any type of sexually oriented conduct or other prohibited form of harassment that would unreasonably interfere with work performance. Creating a work environment that is intimidating, hostile, abusive or offensive because of unwelcome or unwanted conversation, suggestions, requests, demands, physical contact or attentions, whether sexually oriented or other related to a prohibited form of harassment. If an employee believes that he or she is being subjected to any of these forms of harassment, or believes that he or she is being discriminated against because other employees are receiving favored treatment in exchange for sexual favors, he or she must bring this to the attention of appropriate persons in management. The very nature of harassment makes it virtually impossible to detect unless the person being harassed registers his or her discontent with the city's representative. Consequently, in order for the city to deal with the problem, the employee must report such offensive conduct or situation to the city manager. A record of the complaint and the findings will become a part of the file and will be maintained separately from the employee's personnel file. It is understood that any person electing to utilize this complaint resolution procedure will be treated courteously, the problem handled swiftly and confidentially, and the registering of a complaint will in no way be used against the employee, nor will it have an adverse impact on the individual's employment status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 22nd day of May, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2009. COPIES FURNISHED: Michael H. Bowling, Esquire Bell, Roper & Kohlmyer, P.A. 2707 East Jefferson Street Orlando, Florida 32803 Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was subjected to race and gender discrimination, sexual harassment/hostile work environment, and retaliation, as alleged in her Petition for Relief.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, a 36-year-old Caucasian female, was employed by Respondent as a sales associate. She first worked for Respondent at its Sebastian, Florida, store where she started in June 2006. She voluntarily resigned from the Sebastian store in October 2006 and was hired by Respondent's Merritt Island, Florida, store one week later. Respondent owns and operates an appliance retail store in Central Florida. Respondent employs more than 15 people. At some time during Petitioner's employment, John Barnaba, an operations manager who rotated among several stores, said things to her that she found "unacceptable." For example, "You would look good on my Harley," "You look like a biker chick," and "You must be anorexic." He also clapped his hands behind her and said, "hurry, hurry, hurry." She reported Mr. Barnaba's conduct to Phil Roundy, her manager and manager of the Merritt Island store, who said "That's just the way he is," or words to that effect. She was unaware of any other action undertaken by Mr. Roundy regarding her complaint. In January 2007, Petitioner began a voluntary sexual relationship with Mr. Roundy, which involved at some point, Petitioner and Mr. Roundy living together. This relationship lasted until April 29, 2007, when the parties separated. She and Mr. Roundy "got back together in May, about a week after her termination." Mr. Roundy did not sexually harass Petitioner based on the voluntary nature of their relationship, nor did he sexually harass Petitioner between April 29 and May 18, 2007. After Petitioner and Mr. Roundy separated, he started treating her "differently." She reports that he became critical of her and would not assist her. Respondent has published an "information resource for common questions and concerns" titled, "Associate Handbook" that addresses sexual harassment and presents a grievance procedure for employees who believe they have been subjected to unfair treatment. It contemplates reporting the unfair treatment to (1) "your immediate manager"; (2) the store manager; or (3) "[s]hould the problem, however, be of a nature which you do not feel free to discuss with your manager, you are encouraged to discuss the problem in confidence directly with Human Resources." Petitioner requested a transfer to another store on May 1, 2007. She requested the transfer before Mr. Roundy started treating her "differently." She called Human Resources on May 9 and 15, 2007; it is unclear as to whether she called to check on the requested transfer or to report the alleged sexual harassment. She did not timely pursue any recourse suggested in the Associate Handbook. On May 9, 2007, Mr. Barnaba, the operations manager mentioned above, authored an email that characterized several of Petitioner's activities of that work day as "completely unprofessional and insubordinate." The following day, Mr. Roundy emailed his supervisor that Petitioner had gone through his private, business-related emails and discovered Mr. Barnaba's May 9, 2007, email. He also related several incidents that he thought unprofessional and that reflected bad customer service. He advised that Petitioner accused Barnaba and himself of conspiring to try to terminate her. Petitioner was scheduled to work on May 16 and 17, 2007, but did not report to work. She was scheduled to work on May 18, 2007; as a result, Kevin Draco, a risk manager for Respondent, went to the Merritt Island store to interview her. When Petitioner did not appear, management made the decision to terminate Petitioner for "absenteeism."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 4th day of April, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Maurice Arcadier, Esquire 2815 West New Haven Avenue, Suite 303 Melbourne, Florida 32904 Christopher J. Coleman, Esquire Schillinger & Coleman, P.A. 1311 Bedford Drive, Suite 1 Melbourne, Florida 32940
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, Melvin Robinson, through sex offender programs administered by the Respondent. See Section 801.111, Florida Statutes (1975).
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 4, 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 final hearing in this cause was conducted on January 5 1982, following a continuance of the previously scheduled hearing of December 16, 1981, which was designed to allow the Petitioner to gain the assistance of counsel. The Petitioner was unable to make those arrangements and the hearing was held with the Petitioner appearing pro se. In the course of the final hearing, the Petitioner testified and offered as witnesses, Alice Butler, Section Aide in the mentally disordered sex offender program, Florida State Hospital; Sterling George, Psychiatric Aide in the mentally disordered sex offender program at Florida State Hospital; and Alfred Gerardo, a participant in the sex offender program at Florida State Hospital. The Respondent offered as witnesses, Robert Alcorn, Clinical Director for the mentally disordered sex offender program at Florida State Hospital; Charles Shaffer, Clinical psychologist in the aforementioned program; Allison Dowling, Clinical social Worker in that program; and Lois Stevens, Clinal social Worker at Florida State Hospital. The Respondent presented two exhibits which were admitted into evidence. At all times pertinent to this proceeding Petitioner has been in the custody of Respondent, in keeping with orders of court. During that time, the Petitioner has resided at the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in the program for the benefit of sex offenders, to include those persons committed under Chapter 801, Florida Statutes (1975), entitled "Child Molester Act." Although the Petitioner has been subjected to a full range of treatment opportunities his progress in the recognition of and the ability to deal with the underlying conditions which caused his placement in the program are at end. 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. Robinson was admitted to the forensic service at Florida State Hospital on October 9, 1990, to begin his participation in the mentally disordered sex offender program. He had previously been enrolled in the program from March, 1979, through February, 1979, a commitment under the terms of Chapter 801, Florida Statutes. Following his initial release from the program, Robinson was accused of violating the terms and conditions of probation and was adjudicated guilty of the offense for which probation was granted. Imposition of a sentence in that case was withheld and the Petitioner was returned to the custody of the Department of Health and Rehabilitative Services, in keeping with the rationale expressed in his original commitment to the program at Chattahoochee, which original commitment had occurred by Order of Court on February 20, 1976. In the matter of the most recent offense which had caused the revocation of Robinson's probation, Robinson received a sentence of ten years in the Florida State Prison; however, service of that sentence was stayed pending release and discharge from the custody of the Respondent on this most immediate commitment for care and treatment in the mentally disordered sex offender program. Beginning with the October 9, 1980, hospital stay, the goals of the program have been to deal with the patient's problems concerning sexual deviation, pedophilia; alcoholism; inadequate and passive aggressive personality styles and cultural deprivation. Notwithstanding the efforts of the patient and those of the staff to deal with the underlying disorders, this success has not been complete. The treatment has been exhausted in this program and other similar programs in the system in the State of Florida, and the Petitioner still presents a danger based upon his sexual deviation and propensity to commit sexual acts involving children, in particular minor females. These determinations are reached in the face of the facts that follow. The program at Florida State Hospital has as its main 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. The Respondent's Exhibit 2 is a series of clinical summaries related to the patient's performance during the course of his treatment. The most recent evaluation points out, in general terms, the Petitioner's pattern of acting-out behavior and disregard for ward policy and, more importantly his lack of motivation and progress in the therapies which are essential to success in the program. In addition, testimony was given in the course of the hearing on the part of the Petitioner's therapist and other persons affiliated with the treatment team. Lois Stevens had been the Petitioner's primary therapist from October, 1980, to January, 1981. She observed in the Petitioner indications of low self- esteem; the fact that the Petitioner was easily disappointed; that he was easily influenced by others; that he had an inability to deal with abstract feedback and a problem of allowing himself to be abused. These were matters of concern which needed to be addressed as a prerequisite to dealing with the Petitioner's sexual deviation. In effect, this was a process of identifying the problems which underlie his sexual deviation. In this connection, Stevens found that the Petitioner had the desire to do better but evidenced poor judgment and impulse control. These circumstances were aggravated by the fact that the Petitioner had and has limited intellectual ability. During this phase no intense effort was made to discuss the sex offense, molestation of a young girl. While in this treatment situation, Robinson accepted staff criticism in an appropriate way and he did improve in personal hygiene, which had been a problem initially. After a period of time it was determined that the Petitioner should be placed with a separate therapist to go forward with his treatment. From January, 1981, to July, 1981, the Petitioner had Allison Dowling as his primary therapist. In the beginning Robinson performed reasonably well and had been given some freedom of movement within the facility and was granted a position as a patient volunteer on the ward. He was beginning to cope better in the institutional environment; however, he remained reluctant to examine, in therapy sessions, the problem of his sexual deviation. Specifically, that difficulty related to his ability to deal with insight oriented therapy. He would enter into a discussion of the offense in the therapy sessions, but tended to minimize the seriousness of his offense, demonstrating marginal understanding of the etiology and maintaining factors in his deviant sexual behavior. Moreover, between sessions with the group he tended to forget what had been dealt with on the prior occasion. He had to be prompted to participate, with one exception. As established by Dowling in this sequence of the treatment, the Petitioner began to act in an inappropriate way while on the ward and was tardy for group therapy sessions. In the connection with his misbehavior on the ward, it was necessary to force the Petitioner to engage in a discussion of those matters and the act of taking away his privileges of freedom of movement and position did not promote a change in the Petitioner. He attempted to manipulate staff members about the misbehavior and to have group members in the therapy sessions accept his side of the dispute as opposed to directly addressing problems. The items of misbehavior included homosexual activity with another participant of the program and sleeping in the nude, which were contrary to hospital policy. On another occasion the Petitioner attempted to get a staff aide to take him to an unauthorized activity, in violation of ward policy. Dowling has observed little progress in the Petitioner's attempts to control his sexual misbehavior and she correctly indicates that his sexual deviance still exists and no further progress can be made in dealing with this condition. Charles Shaffer, a clinical psychologist was the primary therapist for the Petitioner from November, 1981, to January, 1982. His observations concerning the progress of the Petitioner are in accord with those of Allison Dowling. He did note that the Petitioner has shown himself to be willing to help others with their daily problems but is unwilling to participate himself, and by way of explanation Robinson states that the other patients don't understand or can't understand his problem related to the sexual deviance. Shaffer's observations establish that the Petitioner is comfortable with his life style, and hasn't indicated any desire to change that pattern. Robert Alcorn, the director of the mentally disordered sex offender program at Florida State Hospital, through his testimony indicated agreement to the effect that the treatment had been exhausted in that program without success, which is an accurate depiction. Alcorn also established that conferences related to Robinson's potential placement in affiliated sex offender programs led to the conclusion that those programs could not assist the Petitioner, ergo, treatment has been exhausted in those other facilities. The Petitioner, through his testimony, acknowledged that he had participated in homosexual activities at the hospital and had been punished by the suspension of his grounds privileges and job opportunity. Following those episodes the Petitioner indicated that he lost interest in participating in the program but did in fact participate. He acknowledged that he attended occupational therapy, as well as the primary therapy, and was tardy at times. Robinson admits that he has difficulty explaining himself and has problems with impulse control. He says he can't find himself, is tired of being a nothing. Robinson believes he does not always think before acting. Finally, he has a fear of returning to court and facing the disposition of his case. Alice Butler, a witness for the Petitioner who was a co-therapist at the time that Stevens was assigned to Robinson's case, established that earlier in the treatment Petitioner was more motivated in his participation than he has been recently. And, in fact, the Petitioner has broken the rules as recently as two weeks prior to the hearing by sleeping nude. She also observed that the Petitioner has been in the so-called "observation section" for a long time and is satisfied with his placement. (This particular section is a more restricted area than some of the other advanced wards.) Sterling George, a psychiatric aide and witness for the Petitioner from his observation finds that as a general proposition the Petitioner takes part in activities with other patients and is not a problem on the ward. Finally, Alfred Gerardo, another participant in the mentally disordered sex offender program, gave testimony. He has known the Petitioner for approximately fifteen months. He has also participated in the same group with Robinson from October, 1980, through May, 1981. His initial impressions of Robinson were not favorable, but in the last few months he has gained a better appreciation of the Petitioner. In particular, he has observed Robinson to have made improvement in terms of his willingness to he concerned about matters of education and acting-out, and in the realm of the Petitioner's appearance. From this witness's understanding the Petitioner's participation in group activity is limited and particularly so in the area of the underlying sexual problem. 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 be a sexual menace, and there is a likelihood that the Petitioner would commit other sexual crimes.
