The Issue Whether Petitioner, Andrew Anthony Taylor (“Petitioner”), timely filed a petition under the Victims of Wrongful Incarceration Act, chapter 961, Florida Statutes (2016)(“the Act”); and, if so, whether Petitioner demonstrated by clear and convincing evidence, his actual innocence, thereby entitling him to monetary compensation under the Act.
Findings Of Fact Petitioner seeks compensation pursuant to the Act after serving a prison term of 25 years for the sexual abuse of his stepdaughter, C.J. The jury verdict was vacated after C.J., in 2014, recanted her accusation that Petitioner sexually abused her in 1990, when she was eight years old. The undersigned will begin with a discussion of the events in 1990, when C.J. first reported the allegation of sexual abuse against Petitioner to Dr. Valerie Rao, a rape treatment medical examiner. On the evening of March 10, 1990, C.J. was brought to the Jackson Memorial Hospital Roxcy Bolton Rape Treatment Center by her mother and grandmother, at which time C.J. came under the care of Dr. Rao. Dr. Rao obtained a detailed history from C.J., during which C.J. reported that she had been sexually abused by her stepfather, “Andrew,” at two different locations--her old house and her new house. According to C.J., the most recent sexual encounter was when she was awoken by Petitioner on “Friday night,” March 8, 1990, and told to get up and go to her mother’s bed. C.J. did so, and Petitioner then told her to take off her pajamas, which she did. According to C.J., Petitioner got on top of her, put his “private part” in her, began kissing her, and put his mouth on her “private part.” C.J. also stated Petitioner made her touch his “private part,” and that he touched her in the anal area. C.J. also stated Petitioner often put his “private part” in her mouth. C.J. also stated Petitioner told her that if she told anyone, he would kill her. After obtaining the history, Dr. Rao examined C.J. and observed multiple bruises on her right arm and thighs, and abrasions on her back and on her left breast. The bruises and abrasions were caused when C.J.’s mother beat her with a baseball bat after C.J. told her mother of Petitioner’s sexual abuse. Dr. Rao immediately reported the mother to law enforcement, and C.J.’s mother was arrested at the rape treatment center for aggravated child abuse. Dr. Rao conducted a vaginal examination of C.J. and used a colposcope to observe and document the status of C.J.’s hymen. Dr. Rao observed and documented several healed tears of the hymen, which made the opening of C.J.’s hymen bigger than it should be for a child of her age. According to Dr. Rao, C.J. did not show any natural signs of progression of the hymen tissue that might be present due to a child approaching puberty. Dr. Rao persuasively and credibly testified at hearing that C.J.’s history was consistent with her physical examination. According to Dr. Rao, the healed tears could have resulted from Respondent “trying to push his penis into her” consistent with C.J.’s history. Dr. Rao acknowledged the tears also could have been caused by a finger, a pencil, or any object that is bigger than the opening of the hymen. However, no evidence was presented at hearing indicating that a finger, pencil, or any other object was placed in the opening of C.J.’s hymen. Dr. Rao further acknowledged there was no physical evidence that she could discern or collect that identified Petitioner as the assailant in this case. However, in 1990, obtaining DNA samples and the gathering of other types of physical evidence in an effort to specifically identify perpetrators of sexual abuse were not as advanced and reliable as it is today. Following Dr. Rao’s examination on March 10, 1990, C.J. was separated from her mother, and her mother no longer had custody of her. C.J. lived with her maternal great grandmother, and without her mother in her life, until she was 16 years old. On March 27, 1990, Mercy Restani, a trained interviewer who was employed by the Dade County Children’s Center within the office of the State Attorney, interviewed C.J. at the children’s center. C.J. provided a detailed history to Ms. Restani. C.J. told Ms. Restani that the sexual abuse by Petitioner happened in the old house and at the new house. C.J. told Ms. Restani that Petitioner would get her out of her bedroom and take her into her mother’s bedroom. C.J. told Ms. Restani that Petitioner would touch her “pocketbook” (the child’s word for a vagina) with his “private” (the child’s word for penis). C.J. told Dr. Restani that Petitioner got on top of her, that he moved very fast, and that it hurt when he did so. C.J. said Petitioner touched her breasts, put his mouth on her “pocketbook,” and his “private” in her mouth. C.J. also told Ms. Restani that Petitioner told her he would kill her if she told anyone. Ms. Restani asked C.J. if she had told her mother or anyone about what had happened to her. C.J. told Ms. Restani that she did not tell her mother because she was afraid. C.J. told Ms. Restani that her mother “had been asking her for several days if Andrew had been messing with her.” When C.J. eventually told her mother what had happened, C.J. said her mother beat her with a baseball bat. On April 3, 1990, C.J. was interviewed by a clinical forensic psychologist, Manuel E. Alvarez, Ph.D. The purpose of the interview was to assess C.J.’s current mental status and emotional therapeutic needs. According to Dr. Alvarez, C.J. was able to distinguish between the truth and a lie. C.J. had the intelligence to comprehend what had happened to her, to be able to relate it to others, and she was competent to testify. C.J. provided a detailed history to Dr. Alvarez. Dr. Alvarez observed that C.J. was able to provide a synopsis of her living arrangements at the time of the incidents. C.J. identified her stepfather, “Andrew,” as the perpetrator of the sexual abuse. C.J. told Dr. Alvarez it occurred at the old house and current house. C.J. told Dr. Alvarez it occurred when Petitioner would wake her, take her into the room, and tell her to get onto the bed. C.J. was reluctant to verbally tell Dr. Alvarez what Petitioner did to her, but C.J. wrote it down on a piece of paper (Petitioner’s Exhibit 4) in her own handwriting: He would get on me. He would start moving fast on me. He would take out his private part. On my private part and In my mouth. C.J. also told Dr. Alvarez that after the incidents, Petitioner threatened to kill her if she told anyone about it. On April 5, 1990, C.J. executed an affidavit, attesting to the fact of her name, that she was eight years old, that she lived with her mother and Petitioner at a specific street address in Dade County, Florida, and that: Early in the morning on Friday, March 9, 1990, Andrew woke me up and took me to his bedroom. Andrew told me to take off my panties. He touched my breasts. He put his private part into my pocketbook. It hurt. He kissed me on my mouth and on my pocketbook. He had done this before. He told me he would kill me if I told. My mother asked me if anyone was messing with me. For several days I wouldn’t tell her. When I did tell her what Andrew did, she beat me with a baseball bat. In August 1990, C.J.’s mother entered a plea of nolo contendere to the offense of aggravated child abuse against C.J. She was adjudicated guilty, sentenced to community control, and ordered not to have any contact with C.J. until approved by the court. On October 22, 1990, C.J. gave a videotaped deposition in Petitioner’s criminal case, in which she provided details of the sexual abuse by Petitioner. In the deposition, C.J. described how Petitioner woke her up, took her to her mother’s room, touched her “pocketbook” with his mouth, and placed his “wee-wee” in her “pocketbook.” C.J. testified he moved his body around while putting his “wee-wee” in her “pocketbook,” and that it hurt when he did so. She testified that on another evening, Petitioner woke her up again, took her to her mother’s room, and touched her “pocketbook” with his hand moving up and down as he did so. She testified it happened at the new house and at the old house. Petitioner’s criminal jury trial was held in March 1991, before the Eleventh Judicial Circuit in and for Dade County, Florida, in the case of State of Florida v. Andrew Anthony Taylor, Case No. F90-009928. At Petitioner’s criminal trial, C.J. testified via closed circuit television that Petitioner came to her bedroom, woke her up, and took her to her mother’s room. C.J. testified that she was wearing pajamas and panties and that Petitioner removed them. Using anatomically correct dolls, C.J. showed the jury that Petitioner touched her vagina with his hand and put his mouth on her breasts. She further indicated that Petitioner put his mouth on her vagina and demonstrated how he put his penis in her mouth and vagina. C.J. testified that it hurt when Petitioner placed his penis in her “private part.” She testified she did not tell her mother about this that night because Petitioner said he would do something bad to her. C.J. testified that another incident occurred that same week where Petitioner did the same things to her. C.J. also testified Petitioner put something “greasy” on his “private part” before he put his “private part” in her “private part.” C.J. indicated Petitioner’s sexual abuse of her also occurred at the old house. C.J. testified that when she told her mother about Petitioner’s sexual abuse of her after the last incident, her mother became upset and hurt her. C.J. testified that when she told Dr. Rao she got all the bruises when her mother hit her with a baseball bat, it was the first time her mother ever hit her with a bat. C.J. testified she has not been able to live with or have contact with her mom since her mother hurt her. C.J.’s mother did not testify at the criminal trial against Petitioner because she had an open warrant for her arrest at the time for violating her community control. Petitioner testified at his criminal trial. Although Petitioner denied he sexually abused C.J., he acknowledged that he was C.J.’s stepfather; he married C.J.’s mother in 1989; he had a son with C.J.’s mother in 1998; he was having an extramarital affair with another woman; and while he divided his time between Maryland and Miami because of work, he was sleeping in the same home as C.J. during the timeframe that C.J. indicated she had been sexually abused by him. Following the criminal trial, Petitioner was convicted on March 15, 1991, of three counts of capital sexual battery and one count of lewd and lascivious behavior for the sexual abuse of C.J. Petitioner was sentenced to life in prison on the three capital offenses. The judgment and sentences were per curiam affirmed on appeal in Taylor v. State, 610 So. 2d 644 (Fla. 3d DCA 1992). After reporting the incidents of sexual abuse, C.J. went through counseling two times per week for several years. At no time did C.J. tell any therapists that she was not sexually abused by Petitioner. In 2006, C.J. was approached at her grandmother’s home by a male private investigator for Petitioner. The investigator wanted to ask C.J. questions about what happened with Petitioner, but C.J. refused to speak with the investigator. In either late 2013 or early 2014, C.J. was again approached by a private investigator for Petitioner, this time a female who came to C.J.’s place of employment (“Walmart”). The investigator wanted to ask C.J. if anything had happened with Petitioner. In response, C.J. immediately told her “no.” The investigator then gave C.J. a card, and C.J. told the investigator she would call her in couple of weeks. On February 17, 2014, C.J. executed an affidavit formally recanting the accusation that Petitioner sexually abused her when she was eight years old. In this affidavit, C.J. asserted now, at the age of 32, that she made the allegation because her mother was either drunk or high on drugs who would ask her “if anybody touched me inappropriately.” C.J. asserted that late one night after telling her mother that nobody touched me, her mother beat her with a baseball bat and started yelling, “did Andrew touch you.” C.J. asserted that after telling her mother no, her mother began to beat her and beat her for hours. C.J. asserted that after an extensive beating, she told her mother that “Andrew” had touched her so that she would stop beating her, and after telling her that Andrew touched her, the beating stopped. However, by this time, C.J. had developed a close relationship with her half-brother Andrew Taylor, Jr. C.J. further asserted: A while back, I began to talk with my half- brother, Andrew Jr., and would see him interacting with his own son. This started me thinking about what I had done and only I knew the real truth that Andrew was innocent. My conscience started bothering me every time I would see Andrew, Jr. playing and interacting with his son and it got to the point where I couldn’t sleep and hardly eat. I finally called my half-brother, Andrew Jr., and told him I needed to meet with him and explain what had happened regarding his father. I told Andrew Jr. that his father never touched me or bothered me sexually and that I was so sorry for his dad not being in his life because of what I did. I asked Andrew Jr. to forgive me and he agreed. I also asked Andrew Jr. what I should do and who I could write in order to correct this situation. Investigator Jeannie Rogers came to see me a few months ago and spoke to me about coming forward. I have finally gotten the courage to stand up and do what is right. On June 23, 2014, Petitioner filed a Motion for Post- Conviction Relief Based on Newly Discovered Evidence in Case No. F90-009928. The newly discovered evidence was C.J.’s recantation of the sexual abuse allegation against Petitioner. On April 2, 2015, an evidentiary hearing was held on the motion before Circuit Court Judge Diane Ward. At the hearing before Judge Ward, Petitioner presented the live testimony of C.J., who testified she made up the allegation that Petitioner sexually abused her because her mother beat her with a baseball bat to make her provide a false allegation against Petitioner. C.J. testified she told her mother Petitioner sexually abused her because she wanted the beating to stop. However, C.J. also testified when she told her mother that Petitioner sexually abused her, the beating did not stop, and her mother continued to beat her with the baseball bat for not telling her about the sexual abuse sooner. During the hearing before Judge Ward, C.J. acknowledged she provided specific details of sexual abuse by Petitioner to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her prior testimony in the underlying criminal proceedings involving Petitioner. C.J. was asked how she could have had such knowledge of sexual activity as an eight year old in order to provide the details that she did to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her testimony in the underlying criminal proceedings. In response, C.J. testified she came up with the details by watching cable television and walking in on her mother and Petitioner while they were having sex. At the hearing before Judge Ward, Respondent presented the live testimony of C.J.’s mother, who acknowledged she was a cocaine addict in March 1990. C.J.’s mother testified on direct examination that she recalled an incident in which she had returned home one night on March 5, 1990, and found C.J. lying in bed with her hands covering her front “private parts.” She testified that she could smell a “sexual scent” in the room and that she asked C.J. “what was wrong.” She testified C.J. did not indicate anything was wrong, but she was still suspicious something was wrong because of the sexual odor in the room. C.J.’s mother testified that due to this suspicion, she asked C.J. a second time on March 9, 1990, if “anyone had been messing with her.” According to C.J.’s mother, C.J. indicated this time that Petitioner “[h]ad been bothering her,” which meant that he had been sexually molesting her. C.J.’s mother testified on direct examination that when C.J. began telling her specific details of the abuse by Petitioner, she became irate and beat C.J. with a baseball bat. However, C.J.’s mother’s testimony as to when she began to beat C.J. with a baseball bat is inconsistent. C.J. and her mother acknowledged their relationship over the past several years has been good, and there is no current animosity between them. At the conclusion of the evidentiary hearing, Judge Ward orally announced her ruling that C.J.’s change in testimony is newly discovered evidence. In reaching this conclusion, Judge Ward specifically found C.J.’s testimony “reliable and credible.” Judge Ward commented she “had the opportunity to view her, and observe her during the testimony, and as well as consider any motive that she had for the recantation of her testimony.” On the other hand, Judge Ward specifically found the live testimony of C.J.’s mother to be “incredible.” In reaching this conclusion, Judge Ward commented that at the time of the events, she was by her own admission using drugs, and she had a poor recollection of the events, which is attributable to her drug use rather than to the passage of time. Judge Ward further stated: There were multiple lengthy pauses between the attorney’s questions and her answers where she seemed to be searching in her memory for answers. The Court observed that she seemed very hesitant and unsure of her own recollection of the events, and I further find that this is attributable to her extensive drug use, and that, and her intoxication on drugs at the time that this occurred. With regards to the beating, but with a baseball bat, although at some times she did acknowledge, did state that she beat her child with the baseball bat after she implicated the Defendant in the sexual assault, there were times that she said that she couldn’t recall and it could have been before she implicated her. And this is the most damaging testimony you could possibly have given the fact that there was no direct evidence otherwise implicating the Defendant as the person who sexually assaulted her. She did have six healed tears on her hymen which could have occurred at any time, and been caused by any other person. There was no DNA, blood evidence, semen, eyewitnesses, or a confession, so the only evidence that the State had, or the strongest evidence that the State had was the victim’s testimony, which was obviously obtained through a beating with a baseball bat by her mother when she was a very tiny child. The pictures of her are very sad at such a young age. There is no doubt that if a jury were to hear that the victim, hear from the victim that the Defendant was not the person that sexually abused her, and that she lied because her mother beat her with a baseball bat when she was eight years old, would have produced an, could have, would have produced an acquittal on retrial, and that the Defendant would probably be acquitted on retrial, so based on the foregoing I’m going to grant the motion for post-conviction relief. We need to schedule it for trial now. I think it has to be set in ninety days; isn’t that correct? Okay, I’ll answer my own question yes. Pet. Ex. 14, pp. 245-247. On April 2, 2015, a written order was entered vacating the finding of guilt, judgment, and sentence, and a hearing was scheduled for April 10, 2015, at which time a new trial date would be set. On April 10, 2015, the State announced a nolle prose of all criminal charges against Petitioner. On June 30, 2015, Petitioner timely filed a Petition to Establish Wrongful Incarceration in Case No. F90-009928. On July 31, 2015, Respondent filed a response contesting the petition. After the filing of the initial petition, a grand jury returned an indictment recharging Petitioner for the same crimes. C.J. was notified of the grand jury proceeding, but she did not appear or request a continuance. After the criminal case was re-filed, Respondent and Petitioner were unable to reach a settlement. On December 12, 2016, the second set of charges were nolle prossed. On January 25, 2017, Petitioner filed an amended petition. On March 17, 2017, pursuant to section 961.03(4)(a), Judge Ward issued an “Order Finding That Defendant Was a ‘Wrongfully Incarcerated Person’ and Is ‘Eligible for Compensation’ Pursuant to Section 961.03, Florida Statutes.” Judge Ward held that the petition was timely filed and that Petitioner met his burden of establishing, by a preponderance of the evidence, his “actual innocence” of the charges. Central to Judge Ward’s conclusion that C.J.’s recantation is reliable and that Petitioner met his burden of establishing his actual innocence by a preponderance of the evidence is that she had the opportunity to observe C.J. and her mother’s demeanor when they testified live at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. Judge Ward’s findings are largely based on credibility assessments of C.J. and her mother based on observations of their demeanor while testifying. In concluding that Petitioner established his “actual innocence” by a preponderance of the evidence, Judge Ward relied on the evidence presented at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. In the instant proceeding, however, Petitioner failed to meet his burden of establishing his actual innocence by clear and convincing evidence. Whether Petitioner is actually innocent turns on whether Petitioner presented clear and convincing evidence that C.J.’s recantation is reliable. The evidence presented in this case does not clearly and convincingly establish the reliability of C.J.’s recantation. To begin with, C.J. consistently provided details about sexual conduct perpetrated against her by Petitioner in her visits with Dr. Rao, Ms. Restani, and Dr. Alvarez, and in her prior deposition and trial testimony in the underlying criminal proceeding against Petitioner. C.J. gave details about how Petitioner would wake her up and take her to another room. She gave details about oral sex by Petitioner on herself and that she performed on Petitioner. She gave details about Petitioner using a lubricant on his penis. She gave details about how he would place his penis in her vagina and move up and down really fast. She said it hurt when he did so. Dr. Rao persuasively and credibly testified that the injuries to C.J.’s hymen were consistent with her history. C.J. consistently stated in 1990 and 1991 that her mother beat her with a baseball bat after she told her of the sexual abuse by Petitioner. Over 20 years later, C.J.’s story changed, and she stated that her mother beat her with a baseball bat before she told her of the sexual abuse by Petitioner. In her recantation affidavit, C.J. stated that after telling her mother that Petitioner touched her, the beating stopped. However, in the hearing before Judge Ward, C.J. testified that her mother continued to beat her with the baseball bat after she told her about the abuse for not telling her about the abuse sooner. From March 10, 1990, when C.J. was removed from her mother until she was 16 years old, C.J. had many opportunities to come forward and recant the allegation of abuse against Petitioner. During this time, there was no reason for C.J. to fear her mother because her mother was not in C.J.’s life. Subsequently, C.J. and her mother developed a good relationship. However, Petitioner waited almost 24 years to recant. C.J. recanted after developing a relationship with her half-brother, Andrew Taylor, Jr. When Andrew Taylor, Jr., turned 18 years old, he began a relationship with his father, Petitioner. Prior to recanting, C.J. regretted her half-brother did not get to spend quality time with Petitioner because Petitioner was in prison. C.J.’s development of a relationship with her half-brother and her desire that he have a strong relationship with Petitioner could be a motive for her recantation. C.J. did not appear before the grand jury, she did not request a continuance, and she was not called as a witness at either of the hearings in the instant matter. The undersigned lacked the opportunity to observe C.J.’s demeanor because she was not called to testify as a live witness. However, the undersigned had the opportunity to observe C.J.’s demeanor while testifying in her videotaped deposition in 1990, at which time she testified credibly and persuasively to facts demonstrating that Petitioner sexually abused her. Petitioner was called as a witness at the August 8, 2017, hearing, at which he was simply asked on direct examination if he ever molested C.J., to which he responded no. Petitioner’s testimony at the hearing was unpersuasive.
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her sex and by retaliating against her.
Findings Of Fact Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008). As a Florida non-profit corporation, all of Respondent's activities are governed by its bylaws. Petitioner, a white female, has worked for Respondent off and on during the last five years. Most recently, Petitioner began working for Respondent on January 18, 2008, as a part-time food preparation (prep) worker and a part-time waitress in Respondent's restaurant. Petitioner accepted the job because she had recently left a full-time position with another employer due to the distance of that job from her house. As a prep worker, Petitioner earned a set hourly wage. Petitioner's responsibilities included assisting the chef in preparing meals and cleaning up the kitchen. The chef, Tony Mongone, directed Petitioner's kitchen work but he was not her supervisor. As a waitress, Petitioner earned $3.35 per hour plus tips. On Tuesdays and Fridays, Petitioner earned an average of $100 in tips per shift. Petitioner worked between five and six hours on Tuesday evenings and between five and eight hours on Friday evenings when Respondent served sit-down dinners to its members. On these occasions, Respondent's kitchen served an average of 200 dinners in a two-hour period of time. Petitioner also worked when Respondent catered for banquets and other special occasions. Petitioner worked a total of 41.66 hours in January 2008; 81.5 hours in February 2008; 45.13 hours in March 2008; and 71.17 hours in April 2008. She worked 10.32 hours for the first week in May 2008. Over the course of her 15.4 week term of employment, Petitioner averaged 16.23 hours per week. Although it varied according to the event, there were five to eight other servers or waitresses (all females) working along with Petitioner on any given night. There always were eight-to-10 workers in and around the kitchen, including the servers, the chef, one pizza maker, and the kitchen prep person. At all times relevant here, Linda Ferguson was the club manager and Petitioner's direct supervisor. Ms. Ferguson was responsible for day-to-day management of all club activities with the authority to enforce all club policies. Ms. Ferguson also was in charge of all aspects of hiring and terminating employees and managing volunteer personnel. Ms. Ferguson was in the restaurant on most Friday evenings. When Ms. Ferguson was not scheduled to work, the assistant manager, Carolyn Weeks, was on duty. On Petitioner’s first night as the kitchen prep worker, Chef Mongone was drinking from a pitcher of beer. Early in the evening, Chef Mongone made comments about her breasts, telling her they were nice and asking whether they were real. Later that evening, when the staff was cleaning the kitchen, Chef Mongone walked up behind Petitioner and touched her backside. Petitioner immediately turned on Chef Mongone, telling him assertively, "Don't ever do that again! How would you like it if someone did that to your wife?" Chef Mongone just stood there as Petitioner turned and walked away. Petitioner immediately informed Ms. Ferguson about the incident. Ms. Ferguson inquired whether Petitioner wanted her "to take care of it." Petitioner responded that she felt she "had already done so." Ms. Ferguson spoke to Chef Mongone about his drinking on the job and his inappropriate conduct. Chef Mongone responded in an insubordinate way, denying all allegations of improper conduct. Ms. Ferguson also spoke to Mike Mercante, Respondent's President at that time. Ms. Ferguson complained to Mr. Mercante about Chef Mongone's drinking and offensive conduct. In the following weeks, Chef Mongone sometimes raised his voice at Petitioner and she back at him. On days that Petitioner worked as a waitress, Chef Mongone held up Petitioner's food orders, causing delays in service that resulted in reduced tips for Petitioner. The delays in releasing Petitioner's food orders usually occurred after Petitioner and Chef Mongone exchanged angry words. On or about February 11, 2008, Petitioner was working as a waitress. When she placed her first food order, Chef Mongone began yelling at her for not putting her name and table number on the ticket. When Petitioner reached to retrieve the ticket, Chef Mongone told her not to touch it. At that point, Petitioner started yelling at Chef Mongone. Petitioner admits her response was not nice and describes herself as having "lost it." When Petitioner returned to the kitchen to get her next order, she overheard Chef Mongone telling the kitchen staff that she was stupid because she could not remember to put her name on a ticket. Once again Petitioner's temper got the best of her. Petitioner called Chef Mongone a drunk, triggering another argument with Chef Mongone. Despite the hard feelings between Chef Mongone and Petitioner, Chef Mongone made additional inappropriate remarks to Petitioner. On one occasion, Chef Mongone observed Petitioner wiping her hand on the seat of her pants. Chef Mongone then stated that he "would like to do that, too." On or about February 15, 2008, Petitioner was scheduled to work first as a prep worker and later as a waitress. While she was in the kitchen, she shared a bag of Valentine candy with the staff. When only one piece of candy was left, Petitioner asked Chef Mongone if he wanted it. Chef Mongone replied that he did not want the candy. However, when Petitioner put the candy in her mouth, Chef Mongone made some comment about the way Petitioner sucked the candy. Chef Mongone immediately stated that he did not mean for his comment to come out like it did. Nevertheless, Petitioner was offended and responded in a negative way. Sometime after February 15, 2008, Petitioner wrote a letter to the members of Respondent's Executive Board. The letter details Petitioner conflict with Chef Mongone. Petitioner gave the letter to Ms. Ferguson, who gave it to Mr. Mercante. February 15, 2008, was Petitioner's last day as a kitchen prep worker. From that time forward, Ms. Ferguson scheduled Petitioner to work only as a waitress in order to reduce the time Petitioner would have to spend in the kitchen. On February 20, 2008, Respondent's Executive Board had a meeting. At the meeting, the board members discussed Petitioner's letter. Chef Mongone attended the meeting and denied all allegations. At the conclusion of the meeting, the Executive Board directed one of its members to draft a letter of reprimand for Chef Mongone. In an internal memorandum dated February 22, 2008, Respondent's Executive Board advised Chef Mongone that he had been warned about his rule infractions and general behavior for the past recent months. According to the memorandum, Chef Mongone would receive no further warnings and any future infractions of club rules or Florida law would result in disciplinary action up to and including immediate termination of employment. Respondent does not have a written policy prohibiting sexual harassment. It does have a rule against drinking on duty. On or about May 6, 2008, Petitioner once again became upset at work because the kitchen was crowded and Chef Mongone yelled at her. Petitioner called her husband to complain that Chef Mongone had cursed at her, saying, "Bitch, get the f--- out of the kitchen.” Petitioner also alleged that Chef Mongone was holding up her food orders. When Petitioner's husband arrived at the restaurant, he met Petitioner, Chef Mongone, Ms. Weeks (Assistant Manager), and Lou Barletta (Respondent's Vice President) in the restaurant's parking lot. Petitioner's husband told Chef Mongone that Petitioner would show him respect if Chef Mongone demonstrated respect for Petitioner. The discussion in the parking lot was civil and ended with Chef Mongone and Petitioner's husband shaking hands. After the meeting, Chef Mongone made it clear that he could no longer work with Petitioner and that one of them had to go. Petitioner did not want to go back into the kitchen after the meeting. Ms. Weeks suggested that Petitioner go home until everything cooled down. Petitioner agreed and left the premises. Petitioner was scheduled to work the following Saturday. Before Petitioner reported to work, Ms. Ferguson talked to Mr. Mercante. After that conversation, Ms. Ferguson told Petitioner that she should not come back to work until Ms. Ferguson could replace Chef Mongone. Ms. Ferguson was actively looking for a new chef. After locating a replacement for Chef Mongone, Mr. Mercante would not approve the termination of Chef Mongone's employment. At the end of June 2008, Respondent did not renew Ms. Ferguson's contract. Ms. Weeks replaced Ms. Ferguson as Respondent's General Manager. Due to financial difficulties, Respondent did not hire an assistant manager when Ms. Weeks became the General Manager. Respondent also eliminated all table-busing positions, using volunteers to clear the tables. Respondent has not called anyone back to work after laying them off. Like Ms. Ferguson, Ms. Weeks had problems with Chef Mongone. She eventually hired a new chef and fired Chef Mongone due to his alcohol consumption at work. Petitioner initially drew unemployment compensation from Respondent's place of business. Except for a couple of days of work, Petitioner has been unemployed since May 6, 2008. She is still drawing unemployment compensation from her most recent employer. Petitioner acknowledges that the economy is the reason she has been unable to obtain a job.
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 25th day of June, 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 25th day of June, 2009. COPIES FURNISHED: David Glasser, Esquire Glasser & Handel 116 Orange Avenue Daytona Beach, Florida 32114 Mary Nelson Morgan, Esquire Cole, Stone, Stoudemire, and Morgan P.A. 201 North Hogan Street Suite 200 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
Findings Of Fact At all times pertinent to this proceeding, Respondent held Class "D" Security Officer License Number D00-26960 and Class "DI" Security Officer Instructor License Number DI89-00304. Both licenses were duly issued by Petitioner pursuant to the provisions of Chapter 493, Florida Statutes. Respondent has held his Class "D" license since 1976 and has held his Class "DI" license since 1989. Respondent has no previous record of a felony or misdemeanor offense and was, at the time of the formal hearing, working at an adult community condominium complex as a security guard. Officer Charles Wharton is a detective with the Fort Pierce Police Department who was, at the times pertinent to this proceeding, assigned to the juvenile division. T.G. is a female who was eleven years of age as of July 1993. F.S. 1/ is a female who was fourteen years of age as of July 1993. Both F.S. and T.G. were described by Officer Wharton as appearing their stated ages. Both of these girls were from what Officer Wharton referred to as "Fort Pierce's ghetto" and both were described by Officer Wharton as being "street wise". On or about July 1, 1993, Respondent paid T.G. and F.S. to have sexual relations with him at his house in Fort Pierce. The sex with F.S. included the penetration of her vagina with his penis. The sex with T.G. included her having oral contact with his penis. Officer Wharton questioned Respondent and read to him his Miranda rights. Respondent waived his Miranda rights and admitted to Officer Wharton that he had paid these two girls to have sex with him as described above. Officer Wharton referred this matter to the State Attorney's Office, which subsequently dismissed all charges against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and the conclusions of law contained herein, imposes an administrative fine in the amount of $1,000, suspends Respondent's licensure for a period of three months, and thereafter places Respondent's licensure on probation for a period of one year. DONE AND ENTERED this 10th day of November, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1994.
The Issue The issue presented by this case is whether the Respondent, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Frank J. Lugo, Jr., through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977). The parties have submitted Proposed Recommended Orders. Those proposed findings not included in this Recommended Order were not supported by competent and substantial evidence or were considered immaterial to the results reached.
Findings Of Fact On January 19, 1981, the Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Department requested the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes, to consider the matters set forth in the Petition. At the final hearing the Petitioner testified on his own behalf. Dr. Robert Berland, Ph.D., a psychologist and the Director of the Behavior Disorders Unit in the Forensic Service at the Florida State Hospital testified for the Respondent. Respondent's Exhibit 1, a composite exhibit consisting of a clinical summary, intradepartmental staffing report and an abstract of a staff conference, was admitted as evidence. At all times pertinent to this proceeding the Petitioner has been in the custody of the Respondent pursuant to an order of the Circuit Court of Pinellas County, Florida and Chapter 917, Florida Statutes (1977). From August 6, 1979 through the present, Petitioner has resided in the Florida State Hospital in Chattahoochee, Florida, where he has undergone treatment in a hospital program for mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. The success rate within the program is very low due to patients' long established behavior patterns. Although the Petitioner has progressed during the course of his treatment, the Department has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is participating and has also concluded that similar programs for sex offenders within the state do not offer viable treatment alteratives. The primary treatment modality for mentally disordered sex offenders at Florida State Hospital is group therapy. The Petitioner has participated in group therapy sessions during his current hospitalization, but no significant change in his behavior has occurred. Dr. Berland has diagnosed his present condition as (1) exhibitionism, (2) voyeurism, (3) other sexual deviations, (4) mixed substance abuse, (5) psychogenic pain disorder, (6) anti-social personality, (7) passive-aggressive personality with contained hostility, and (8) narcissism. Exhibitionism has been the Petitioner's primary problem with his first arrest for indecent exposure occurring in 1971. Group and milieu therapy are the basic treatments available in the sex offender program at Florida State Hospital. Milieu therapy consists of interacting with people who share similar problems. Petitioner has participated in both therapies since his admission to the hospital. From August, 1979 to January, 1980, Mr. Lugo regularly attended group therapy and participated in the group. He developed a degree of insight into his condition. During this period, the group was led by Sam Cuningham, a psychologist, and met for one hour each week. From February, 1980, to August, 1980, Petitioner regularly attended group but did not actively participate. Dr. Berland became head of the group and its size increased from five to ten members. When Mr. Lugo participated, his discussions centered on other patients' problems rather than his own. Although there is a benefit in listening and discussing other patients problems such benefit is not substantial when coupled with a denial of a patient's own problem as was the case with Mr. Lugo. One of the reasons given by Mr. Lugo for not participating was a CERonic sore throat. After Dr. Berland had the Petitioner examined by a physician who could find no medical basis for the problem, it was concluded by Dr. Berland that the disorder was psychogenic. During this period the Petitioner joined another group started by psychology interns at Florida State University which offered individual counseling in addition to group therapy. This group lasted for approximately two months. On August 6, 1980, Mr. Lugo was presented for staffing by his treatment team. He was informed that his group participation was inadequate and given three areas where improvements was necessary: (1) analysis of and solution to sexual problems, (2) anti-social, manipulative and rule-violating behavior, and (3) hostility in interactions with others. During the period September, 1980, to October, 1980, the Petitioner's behavior did not significantly change. Although he did attempt to cooperate by complaining less about his physical problems and changing his manner of dress, Petitioner's participation during group therapy remained superficial. After being informed by staff that his group participation remained inadequate, Mr. Lugo began writing summaries of his group experiences. He continued to write summaries after being informed by the staff that he should discuss experiences with the group rather than write summaries. During September to October, 1980, Mr. Lugo's attendance at group therapy was erratic. On October 29, 1980, the treatment team met and after reviewing the Petitioner's case, concluded that Mr. Lugo continued to meet the criteria of a sex offender under Chapter 917, Florida Statutes, and that he was not amenable to further treatment in the behavior disorder unit. Having exhausted Florida State Hospital's treatment capabilities, the staff recommended that the patient be presented to an Intra-Departmental Screening Committee to determine if further treatment capabilities existed within any other sex offender treatment programs in the Department. On December 24, 1980, the Committee considered Mr. Lugo's case and recommended that he be returned to the appropriate Circuit Court as a treatment failure. Petitioner has progressed in areas outside of group therapy including ward activities and vocational training. However, his involvement in these areas is insufficient to cause a meaningful alteration of Petitioner's aberrant behavior. Although individual therapy is available for patients such as the Petitioner, it was not attempted in this case because Mr. Lugo never achieved a level of progress necessary to make such therapy feasible. The Petitioner desires to remain in the program at Florida State Hospital and be given individual therapy and assignment to a different treatment team.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Frank J. Lugo, Jr., and that the said Frank J. Lugo, Jr. be returned to the committing court for further disposition. DONE and ENTERED this 26th day of June, 1981, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1981. COPIES FURNISHED: Steven L. Seliger, Esquire Post Office Box 324 Quincy, Florida 32351 Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue The issue is whether Dr. Wise abused his position as a treating psychiatrist for five young women by using his influence over them to engage in sexual relationships with them in violation of Section 458.331(1)(k), Florida Statutes, (1979), [now codified as Section 458.331(1)(j), Florida Statutes (1987)] and whether he is therefore guilty of unprofessional or immoral conduct in violation of Section 458.1201(1), Florida Statutes, (1969) [now codified as Section 458.329, Florida Statutes, (1987)]. If Dr. Wise is guilty of any of these activities, he would also be guilty of violating Section 458.331(1)(x), Florida Statutes (1987), which proscribes the violation of any portion of Chapter 458. Sexual misconduct with patients would also constitute gross or repeated malpractice, which is forbidden by Section 458.331(1)(t), Florida Statutes (1987).
Findings Of Fact At all times material to the Administrative Complaint, Dr. Wise has been a licensed medical doctor, holding license ME0008520. He has been licensed in Florida since 1957 and practices in the area of Adult and Child Psychiatry in Miami. He has been a board certified psychiatrist in since 1965. Patient L. H. From July 1969 through April 1971, Dr. Wise treated L.H, who was 21 years of age. When she began treatment, she was experiencing panic attacks and had other problems resulting from sexual molestation as a child, rape, alcoholism, and family problems. At first she had visited Dr. Wise weekly, but toward the end of her 1 1/2 years of therapy, she saw him every other week. L.H. alleges that shortly before she terminated her treatment with Dr. Wise she had a severe panic attack which caused her to telephone Dr. Wise, who then offered to provide therapy at Dr. Wise's apartment. When she arrived, she says Dr. Wise was in his bathrobe, took her to the bedroom, told her to place her hand on his penis and had sexual relations with her. She also maintains that Dr. Wise saw her on one other occasion in his office, when no sex occurred. L. H. said nothing about Dr. Wise's conduct at the time the incident was to have taken place. Fourteen years later, L.H. was seeing a psychologist in St. Louis, Missouri, Dr. Gertrude Williams. In the course of therapy with Dr. Williams, L.H. stated that she had sexual intercourse with Dr. Wise while she was his patient. This disclosure to Dr. Williams is consistent with the testimony L. H. gave at the final hearing. In October of 1985, L.H. filed a complaint against Dr. Wise with the South Florida Psychiatric Society alleging sexual misconduct, but after a two-day hearing a panel of twelve doctors found against L.H. and in favor of Dr. Wise. The testimony of L. H. was no more persuasive in this case than it was before the Psychiatric Society. In October, 1985, L.H. also filed a complaint which the Department investigated, but found the charges unsubstantiated. No disciplinary action was initiated against Dr. Wise at that time. The evidence in the instant case with respect to the allegations of misconduct by Dr. Wise with L.H. was not clearly convincing or persuasive. Patient S.P. Dr. Wise treated S.P. from July, 1980 through July, 1981 at his office in Miami. She was then approximately 19 years old and had complaints of nervousness, insomnia and hyperventilation. She saw Dr. Wise approximately two times per week (on Tuesdays and Thursdays) for therapy. Although originally seen in the morning, her appointments were changed to late in the afternoon. S.P. alleges that within two months after beginning treatment, while she was sitting on the couch during a therapy session, Dr. Wise got up from another couch, sat down next to her and began to kiss her. She also alleges that during subsequent visits Dr. Wise had sexual intercourse with her. S.P. filed a civil lawsuit for malpractice against Dr. Wise alleging the same sexual misconduct alleged here as the basis for her damage claim. After a jury trial, the jury returned a verdict in favor of Dr. Wise. S.P.'s marriage failed while she was seeing Dr. Wise. She had often stayed out late, and told her husband that she was at therapy sessions with Dr. Wise. It is not clear whether these late night absences from home were actually the result of appointments with Dr. Wise or were the result of other appointments which she justified to her husband by claiming they were appointments with Dr. Wise. After terminating treatment with Dr. Wise, S.P. began seeing a Roman catholic priest who was also trained as a counselor. She told him that she had been seeing a local psychiatrist who, after a few sessions, had engaged in sexual intimacy with her. After moving back to her mother's home due to her breakup with her husband, S.P. also told her mother that she and Dr. Wise had been sexually intimate. These statements by S. P. were consistent with her testimony at final hearing; that the testimony is consistent, however, does not make it persuasive. Taken as a whole, the evidence that Dr. Wise may have engaged in a sexual relationship with S. P. is not clearly convincing. Patient L. M. Dr. Wise treated L.M. during the period from late 1972 through February of 1973. She was sixteen years old and was seeking to improve her relationship with her parents. She alleges that during one of her early visits Dr. Wise questioned her about the pimple on her forehead, and asked whether she had pimples on any other area of her body. She says she responded that she had a pimple on her back, and alleges that Dr. Wise then asked to see her back. When she lifted her pullover, she says Dr. Wise fondled her breasts briefly. Viewing the testimony of L.M. as a whole, the evidence is not clearly convincing that Dr. Wise ever fondled her breasts. Patient K. M. Dr. Wise treated K.M. from 1982, when she was 18 years old, until 1984. K. M. came to see Dr. Wise because of problems including an abortion she had when she was 15 years old, as well as a prior incestuous relationship with her brother. K.M. testified that she would go to Dr. Wise's office for treatment late in the evening, when they also would engage in sexual intercourse. She also testified that in 1985, after she terminated her therapeutic relation with Dr. Wise, she told her general practice physician, Dr. Peter Shea, during an office visit, that she had an affair with Dr. Wise. As with the foregoing witnesses, the statement made to Dr. Shea is consistent with K. M.'s testimony at final hearing, but that consistency does not enhance K. M.'s testimony. The testimony of K.M. concerning liaisons with Dr. Wise is not clearly convincing. Patient L. G. L.G. saw Dr. Wise beginning in April, 1974 when she was 21 years old. When she first came to Dr. Wise she complained of depression, unhappiness, and confusion. She told Dr. Wise that she was lonely and did not have a good relationship with men. Dr. Wise also treated L.G.'s sister, Joan. After about two months of seeing her on a weekly basis, L.G. alleges that Dr. Wise came over to the couch where she was sitting, embraced her, and during the course of the treatment, their physical relationship became more intimate. The intimacies were to have included oral sex which L.G. performed on Dr. Wise, which she thought was therapy for her psychological problems with sexual intimacy. L.G. terminated her relationship with Dr. Wise and began seeing a psychologist at the University of Miami, Edward Rappaport. During the course of treatment L.G. reported to Dr. Rappaport that she had been sexually involved with Dr. Wise. The testimony of L.G. at final hearing is consistent with the statement she made to Dr. Rappaport during therapy that Dr. Wise engaged in sex with her while she was seeing Dr. Wise for professional help. The consistency of the testimony does not make it persuasive. Considering the testimony of L.G. and Dr. Rappaport, the evidence offered to show that Dr. Wise had engaged in sexual intimacies with L.G. while she was seen as a patient is not clearly convincing.
Recommendation It is RECOMMENDED that the Board of Medicine enter a Final Order dismissing the second amended Administrative Complaint filed against Respondent. DONE AND ENTERED this 22rd day of May, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY 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 22rd day of May, 1989. APPENDIX The following constitutes my rulings on Proposed Findings of Fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1987). Rulings on Findings of Fact Proposed by the Department of Professional Regulation Covered in finding of fact 1. Covered in finding of fact 1. Accepted in findings of fact 2, 6, 10, 11 and 12. Covered in finding of fact 11. 6-7. Rejected for the reasons stated in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 9. Rejected as unnecessary. Rejected as unnecessary. Covered in finding of fact 11. 13 Covered in finding of fact 6. Covered in finding of fact 7, of the facts stated that are rejected. Rejected because the testimony of S.P. was not clearly convincing. Covered in finding of fact 9. Covered in finding of fact 9. The proposals concerning the telephone calls are rejected as unnecessary. Rejected because the testimony of S.P. was not clearly convincing. Covered in finding of fact 9. Rejected as subordinate to finding of fact 9. Rejected as subordinate to finding of fact 9. Covered in finding of fact 9. Covered in finding of fact 9. To the extent necessary, covered in finding of fact 24. The proposal concerning the telephone calls is rejected as unnecessary. Rejected as unnecessary. 26.-29. To the extent necessary, covered in finding of fact 10. Rejected as unnecessary. Covered in finding of fact 12. Rejected as unnecessary. Covered in finding of fact 13, although the proposals are rejected because L.G.'s testimony was not clearly convincing. Rejected as unnecessary. Rejected because the testimony of L.G. is not clearly convincing. Rejected as unnecessary. 37.-38. To the extent necessary, covered in finding of fact 13. 39. Rejected as unnecessary. 40. Covered in finding of fact 13. 41.-42. Rejected because the testimony of L.G. was not clearly convincing. 43. Covered in finding of fact 2. Covered in finding of fact 3, although the proposed findings are rejected. Covered in finding of fact 3, although the proposed findings are rejected. Covered in finding of fact 3. Covered in finding of fact 4. Rejected as unnecessary. Rejected because of the testimony of the complaining witnesses has not been clearly convincing. 50.-53. Rejected as unnecessary. 54. Rejected as unnecessary. Rulings on Findings of Fact Proposed By Dr. Wise Rejected as unnecessary. Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2 Covered in finding of fact 4. Covered in finding of fact 5. Rejected as unnecessary. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 6. Rejected as unnecessary. Covered in finding of fact 7. Covered in finding of fact 8. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 11. Covered in finding of fact 12. Covered in finding of fact 12. Covered in finding of fact 12, to the extent necessary. Covered in finding of fact 14. Covered in finding of fact 10. Covered in finding of fact 10. Rejected as unnecessary. Covered in finding of fact 10. Rejected as unnecessary. COPIES FURNISHED: Susan Sewell, Esquire Law offices of Mark P. Lang 20 North Orange Avenue Suite 707 Post Office Box 2127 Orlando, FL 32802-2127 Jonathan King, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Kenneth D. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 130 North Monroe Street Tallahassee, FL 32399-0750A =================================================================
Findings Of Fact Having listened to the testimony and considered the evidence presented in this cause, it is found as follows: Dr. Richard M. Dunham is licensed to practice psychology in the State of Florida by the State Board of Examiners of Psychology. Dr. Dunham is primarily employed as a tenured professor on the faculty of Florida State University. Dr. Dunham is not trying to build a private practice, and over a two or three month period may see three to four people professionally. In connection with this limited private practice he maintains an office in his home in Wakulla County and did so at all times pertinent to this cause. It was Dr. Dunham's usual practice to see patients for counseling in his home, rather than in his office on the University campus or some other place. In 1973, Dr. Dunham was acquainted, through his service in the United States Naval Reserve, with Dan Holsenbeck, then the husband of Judy Holsenbeck. He was likewise acquainted with Judy Holsenbeck. Dr. Glenn King, a clinical psychologist with the Auburn University Clinic, counseled Mrs. Holsenbeck on October 23, 1973, in Auburn, Alabama. Over the next five or six weeks, he saw her a total of five times for counseling, the last session being November 5, 1973. She related to Dr. King that she was concerned because she was sexually attracted to other men and she was unable, to achieve orgasm during intercourse with her husband. Further, she was depressed because she felt she could not be faithful to her husband. Dr. King counseled her and found her to have a passive aggressive personality disorder with depressive features. In early December, 1973, Mrs. Holsenbeck moved to Tallahassee, Florida. Through her husband's contact with Dr. Dunham, she met with him in his office on the FSU campus sometime around December 20, 1973, to discuss her psychological problems and to seek counseling. Dr. Dunham suggested several other psychologists whom she could consult, and, in the alternative, offered to take Mrs. Holsenbeck as a patient himself. Mrs. Holsenbeck requested Dr. Dunham to take her as patient, to which request he acceded. The psychological problems Mrs. Holsenbeck related to Dr. Dunham for which she sought counseling, involved her sexual activity and were similar in nature to those related to Dr. King at Auburn. After the initial meeting on or about December 20, 1973, Dr. Dunham saw Mrs. Holsenbeck as a patient on five separate occasions. These were as follows: December 27, 1973; January 1, 1974; January 17, 1974; February 6, 1974; and February 28, 1974, which meeting Mrs. Holsenbeck recalls occurring on March 6, 1974. Each of these meetings was a counseling session and took place at the home of Dr. Dunham in Wakulla County. It was alleged that in the course of the counseling sessions on January 17, 1974, and February 6, 1974, Dr. Dunham engaged in sexual intercourse and other sexual activities with Mrs. Holsenbeck. It was further alleged, that at the last counseling session, which occurred on February 28, 1974, Dr. Dunham made sexual advances toward Mrs. Holsenbeck, which were rebuffed. No one other than Dr. Dunham and Mrs. Holsenbeck were present in the home of Dr. Dunham at the time of the counseling sessions on January 17, 1974, and February 6, 1974. Similarly, no one other than Dr. Dunham and Mrs. Holsenbeck were present at the inception of the last counseling session. However, Mrs. Dunham, Dr. Dunham's wife of 7 or 8 years, came home during that counselling session. Mrs. Dunham was aware of Mrs. Holsenbeck's presence in the house and was not aware of any sexual activity or problem between Dr. Dunham and Mrs. Holsenbeck at that time. The counseling sessions on January 17, 1974, and February 6, 1974, took place at approximately 9:00 a.m. and lasted from one hour to one and one-half hours. The last counseling session occurred in the early evening. In December of 1973, and continuing through the date of the last counseling session, Mrs. Holsenbeck worked in a race relations program headed by Dr. Dunham at F.S.U. Mrs. Holsenbeck was very dissatisfied and eventually withdrew from it in the spring of 1974. On April 18, 1974, Dr. King contacted Mrs. Holsenbeck, at the request of her husband, whereupon Mrs. Holsenbeck alleged that Dr. Dunham had made certain sexual advances toward her during the course of his treatment of her. After a further meeting with Mrs. Holsenbeck, Dr. King told her that Dr. Dunham's alleged conduct was a serious breach of ethics and asked her if she would lodge a complaint against Dr. Dunham. Thereafter, Dr. King put Mrs. Holsenbeck in touch with Dr. Wallace Kennedy, also of the FSU faculty, and under whom Dr. King had studied. Dr. King had Mrs. Holsenbeck contact Dr. Kennedy so that her allegations might be conducted to the Florida State Board of Examiners of Psychology for action by them. There was evidence presented of a serious professional and, perhaps, personal disagreement between Dr. Dunham and Dr. Kennedy, who are both in the same psychology department at FSU. This disagreement arose long before December, 1973. Both the Petitioner, Florida State Board of Examiners of Psychology and the Respondent, Dr. Richard Dunham, agree that acts of the nature alleged constitute a serious ethical breach warranting suspension or revocation of a license to practice psychology. It was not proved by clear and convincing evidence that Dr. Richard Dunham made sexual advances toward, nor engaged in sexual activities with Mrs. Holsenbeck at any time. It is a very unwise practice on the part of Dr. Dunham to counsel patients in the privacy of his own home with no one else present, particularly when such a patient is a female manifesting sexual problems. Had Dr. Dunham been more circumspect concerning this practice, there would probably have been no opportunity for charges such as those presented herein.
Recommendation There having been no finding of fact that the Respondent, Dr. Richard Dunham, engaged in the alleged activities of misconduct, it is hereby recommended that the Florida State Board or Examiners of Psychology take no action against the Respondent and dismiss the charges herein. DONE and ORDERED this 26th day of September, 1975, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1975. COPIES FURNISHED: Ronald C. LaFace, Esquire W. Dexter Douglass, Esquire P. O. Box 1752 Douglass & Powell Tallahassee, Florida 32302 Post Office Box 1674 Attorney for Petitioner Tallahassee, Florida 32302 Attorney for Respondent
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, Lewis J. McLean, through sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes.
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Petition was received by the Division of Administrative Hearings on January 18, 1982, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department has requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. Final hearing in this case was conducted on April 2, 1982, following a continuance of the originally scheduled hearing date of February 25, 1982, which continuance was granted to the Petitioner to allow him to attempt the employment of counsel to represent him in this action. In the course of the final hearing, the Petitioner testified in his own behalf. Respondent offered as witnesses: Robert Alcorn, Clinical Director, Mentally Disordered Sex Offender Program at Florida State Hospital, and Charles Schaefer, Clinical Psychologist. Respondent submitted two (2) items of evidence which were received. At all times pertinent to this proceeding, Petitioner has been in the custody of Respondent, in keeping with the court order. His commitment has been on the basis of Chapter 917, Florida Statutes (1977), involving Lewd and Lascivious and Indecent Assault or Act upon a child under the age of fourteen (14) related to the handling, fondling or making an assault upon that child, without the intent to commit sexual battery, by committing fellatio on the victim. The commitment order to the program dates from May 23, 1979, and the Petitioner was placed in the Forensic Service, Mentally Disordered Sex Offender Unit at Florida State Hospital on July 30, 1979. During his stay at Florida State Hospital, the Petitioner has undergone treatment in the program for the benefit of sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in dealing with the underlying disorder, Pedophelia, has reached a place where improvement is no longer expected by the patient. In the face of these circumstances, 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 opportunities for progress. Those opinions having been made known to the Petitioner, Petitioner requested and was granted the hearing which lead to the entry of the Recommended Order. The program at Florida State Hospital has as its main focus the utilization of group therapy with adjunctive programs in recreation and occupational therapy, and this treatment regimen relies heavily on a patient's self-motivation. Respondent's Exhibit 1, admitted into evidence, is constituted of a series of clinical summaries related to the patient's performance during the course of his treatment at Florida State Hospital. The most recent of these summary statements was prepared from the session of November 18, 1981. In brief, the opinions stated in the clinical summaries accurately indicate that the Florida State Hospital has exhausted all available treatment for the Petitioner's Pedophilia. Moreover, the presentation of Petitioner's case to the Intra-Departmental Screening Committee, which is constituted of administrative personnel of the various sex offender programs in the State of Florida, correctly concluded that the Respondent has exhausted all available treatment for the Petitioner in any program in the State of Florida. Finally, testimony given in the course of the hearing was in keeping with the opinions expressed in the clinical summaries and the opinions held by the members of the Intra- Departmental Screening Committee. Notwithstanding the efforts of the Respondent, Petitioner continues to meet the definition of sex offender as set forth in Chapter 917, Florida Statutes, to include the propensity to commit further sexual offenses of the nature for which he was placed in the Sex Offender Program. Charles Schaefer became the Petitioner's primary therapist in August, 1981, and has continued to perform that function. Schaefer's testimony establishes that Petitioner's stay in the program, in terms of duration, has been average. Schaefer continues to meet with the Petitioner in group therapy sessions, which sessions are the primary focus of the treatment modality. These sessions occur four (4) times a week and the patients within those sessions, through discussion, are primarily responsible for bringing about an understanding of the underlying disorder which caused their placement in the program. In addition, McLean has participated in individual therapy sessions with Schaefer and in adjunctive therapy, in particular small engine repair. At the time that Schaefer undertook the care of Petitioner as primary therapist, he reviewed the past clinical reports and matters of record on file at Florida State Hospital and noted that those reports indicated that Petitioner was superficial in his understanding of his sexual deviation and had little or no insight into why he had committed the offense which caused his placement. These recorded observations were accurate in outlining Petitioner's condition. Over the period of time of his attendance in group sessions with Schaefer, Petitioner has ceased bringing his problems to the group therapy sessions to discuss them with others and his problems were only discussed in group, based upon other members within the group learning of those problems by conversations held with Petitioner while on the ward and carrying forward the topics at group sessions. This form of ward discussion is not designed and will not achieve improvement in Petitioner's understanding of his sexual deviation. Moreover, Petitioner tends, in the course of the group sessions, to minimize the severity of his problems and is more motivated toward being relieved of the responsibility of dealing with the problem and being removed from those sessions, as opposed to attempting to understand and deal with his aberrant life style. Schaefer, in his attempts to assist the Petitioner, tried an approach which gave the Petitioner great latitude to find a way to discuss the patient's problem. This method was followed by a more confrontive style of working with Petitioner. Neither of these choices was successful and the Petitioner has continued to be evasive, silent in group therapy sessions and has only talked in those sessions when confronted with a direct question. On those occasions, McLean gives answers which are short and uninformative. Schaefer has taken McLean out of the patient volunteer work program as a means to achieve better performance in group therapy sessions. This form of motivation has not borne a better result in terms of participation. Neither has the attempt to have individual therapy sessions once a week lead to any better result. In those individual therapy sessions with Schaefer, Petitioner has not talked. Recently, McLean has been dealt with only through the group therapy sessions and no progress has been made in dealing with his condition. It is only on a couple of occasions within the last nine (9) months that McLean has been forthright in his discussion of his condition. As can be seen in the Respondent's Exhibit 1, admitted into evidence, in the November, 1981, staffing conference, to consider the question of his retention in the program, Petitioner stated that he knew that he needed more help and felt that he could benefit from another six (6) months' stay in the hospital so that he could become a former sex offender and not be felt to meet the criteria related to sex offenders. At present, McLean seems satisfied with his personality as it now exists. That personality allows him to perform in an acceptable fashion on the hospital ward and in the adjunctive therapy involvement; however, he would not be appropriate in a social circumstance which gave the Petitioner opportunity to commit a further sexual offense. Robert Alcorn, the Unit Director at Florida State Hospital, in charge of the Sex Offender Program, indicated that the McLean case had been presented to the Intra-Departmental Screening Committee described herein. This was done on December 31, 1981, and as indicated in Respondent's Exhibit 2, it was the opinion of all administrative officials in the various programs that Respondent had exhausted treatment for McLean's condition. McLean, through his testimony in the course of the hearing, indicated that he feels that he has done his best and that he tries to express himself on the subject of his Pedophilic condition. Nonetheless, he feels that he has a problem discussing those matters in a group setting and that he is uncomfortable talking to members of the group. He does feel that he has brought some problems to the group discussion. In his mind, the reason that he committed the crime for which he was placed in the program, was based upon his tendency to "keep everything in" and his difficulty communicating with his wives. He does not feel that he will commit a sex offense in the future and that he could address his problems by talking to a marriage counselor or someone of that nature. He feels that he is well, but he would like to stay in the program if it is determined that he is not ready to be released. In summary, the Respondent has exhausted all appropriate treatment for this Petitioner's sexual disorder, but that treatment has not been successful and the patient continues to suffer from that condition and continues to pose a danger to commit another sex offense.
The Issue The issue for determination is what should be the award to Petitioner as to back pay, interest on the amount awarded, retirement system contributions, attorney's fees, and costs.
Findings Of Fact Had Petitioner retained her employment with Respondent, she would have earned $161,014.11. However, she actually earned $125,865.87. As a result of Petitioner's being terminated by Respondent, she lost income in the amount of $35,148.24. As a result of Petitioner's being terminated by Respondent, she lost pension contributions in the amount of $7,110.16. Consequently, Petitioner incurred a total monetary loss in the amount of $42,258.41. As to whether Petitioner incurred a break in service, no one from the Division of Retirement was called to testify. Consequently, no evidence was presented as to that issue. Petitioner suggests that she should receive credit for retirement from October 8, 1993, the date of her termination when she was a career service employee, to January 1995, the date that she again became a career service employee. Petitioner's suggestion is a reasonable resolution to the issue of break in service and should be implemented if there exists a break in service. No argument was presented to contradict that the statutory interest rate is ten percent per annum. Petitioner's counsel testified that she expended 437.80 hours on this matter and Petitioner's expert opined that such hours are reasonable. Respondent's expert opined that 241.30 hours are reasonable. Petitioner's expert did not review the index of the official file of this matter, which was maintained by the Division of Administrative Hearings. Respondent's expert reviewed the index online. Further, Respondent's counsel reviewed the Verified Motion, but did not review the file of Petitioner's counsel. Respondent's expert questioned whether Petitioner's counsel personally performed the tasks in certain entries in the Verified Motion or whether a secretary performed the tasks, not whether the tasks were performed. However, Respondent's expert did not question, and did not indicate that he was required to question, Petitioner's counsel on such entries prior to hearing. Regarding such entries, Petitioner's counsel testified that she, not her secretary, performed the tasks in the entries. The testimony of Petitioner's counsel is found credible. Respondent's expert also questioned whether some entries contained adequate detail and specificity to support them, not whether the tasks were performed. The expert's testimony is found to be credible. The detail and specificity are inadequate in the entries identified by Respondent's expert. The lack of detail and specificity dictate a reduction in the number of hours requested by 98.30 hours. Consequently, the number of hours reasonably expended by Petitioner's counsel in this matter is 339.50. Petitioner and her counsel entered into a mixed agreement (Agreement) for representation at $250.00 per hour and for contingent fees. The Agreement provided in pertinent part as follows: agree to pay my attorneys from the proceeds of the gross recovery including costs and fees awarded attorney's fees, if applicable the following fee: * * * b. 40% of any recovery up to $1 million after the filing of an answer or the demand for appointment of arbitrator through the trial of the case; 40% becomes immediately applicable as soon as the matter is set for trial; * * * My attorneys shall be entitled to choose the fee at the hourly rate [$250.00 per hour] if I am entitled to an award of attorneys fees from the client or the contingency, whichever is greater. In the event there is a court-awarded fee which is more than the contingency fee, the attorneys shall keep the court-awarded fee in lieu of the contingency fee provided it is greater than the contingency fee and provided the court-awarded fee is actually collected. The hourly rate of $250.00 by Petitioner's counsel is within the range of rates for this matter. The hourly rate of $250.00 is reasonable. Therefore, the amount of reasonable attorney's fees in this matter is $84,875. Petitioner requests an enhancement of attorney's fees by one-third because of the uniqueness or unusualness of this matter. The evidence is insufficient to demonstrate that this matter is a unique or unusual case involving employment discrimination. Petitioner's counsel requests costs in the amount of $3,094.49. The Verified Motion contains taxable and non-taxable costs.2 Costs identified as fax or facsimile, postage, cab fare, and transportation to and from the courthouse should be excluded as inappropriate. As a result, the reasonable amount of costs is $2,844.48. Petitioner's Verified Supplemental Motion indicates additional attorney's fees associated with this hearing in the amount of $11,200.00, representing 44.80 hours (out of a total of 65.30 hours indicated) at a rate of $250.00 an hour; and additional costs associated with this hearing in the amount of $12,100.91. Regarding the supplemental attorney's fees, no explanation was submitted as to why the entries from June 6, 2003 to August 20, 2003 were not available at hearing. Notwithstanding, the supplemental documentation is sufficiently detailed and specific. As a result, the number of supplemental hours reasonably expended by Petitioner's counsel is 44.80, and the reasonable amount of supplemental attorney's fees is $11,200.00. Regarding the supplemental costs, the cost for the services rendered by Petitioner's experts are included in the $12,100.91. Petitioner obtained the services of an expert on attorney's fees and an expert on lost wages and benefits. For the services rendered by the expert on attorney's fees, the cost was in the amount of $1,775.00. For the services rendered by the expert on lost wages and benefits, the cost was in the amount of $9,006.25. The total cost for the services rendered by the experts is in the amount of $10,781.25. Again, costs identified as fax or facsimile, postage, cab fare, and transportation to and from the courthouse should be excluded as inappropriate. Additionally, regarding costs, Petitioner represents that the parties agreed to equally share in the expense of the court reporter for the hearing, which is shown on the Verified Supplemental Motion as $663.00. Respondent did not refute the representation. Consequently, the reasonable amount of supplemental costs is $12,054.91.
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 as to back pay, interest on the amount awarded, retirement system contributions, attorney's fees, and costs: Ordering the Department of Health and Rehabilitative Services n/k/a Department of Children and Family Services (Department) to pay Gloria Garcia (Garcia) back pay in the amount of $35,148.24. Ordering the Department to make contributions to the Florida Retirement System on behalf of Garcia in the amount of $7,110.16. Ordering the re-evaluation of Garcia's break in service by the Division of Retirement. Further, ordering that, if it is in compliance with and satisfies applicable statutes and rules of the Division of Retirement, Garcia receive credit in time for retirement from October 8, 1993, the date of her termination, to January 1995, the date that she again became a career service employee. Ordering the Department to pay to Garcia's counsel attorney's fees in the amount of $96,075.00 and costs in the amount of $14,899.39, totaling $110,974.39. Ordering the statutory interest rate of ten percent per annum be applied to the amounts awarded. DONE AND ENTERED this 22nd day of October, 2003, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 22nd day of October, 2003.
