Findings Of Fact Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989. Petitioner left work due to his illness before the end of his January 26, 1989 shift. Petitioner did not report to work after he left on January 26, 1989. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor. Before February 2, 1989, Mr. Minor did not see the excuse. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989. Petitioner was not scheduled to work on January 30 or January 31, 1989. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report. Notice before an absence is the standard policy of the Respondent. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989. JANE C. HAYMAN 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 15th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. The Respondent was the sole party who submitted Proposed Findings of Fact. Specific Rulings on Proposed Findings of Fact Adopted in Finding of Fact 1. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence. Rejected as conclusion of law. Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Findings of Fact 6 and 7. Adopted in Findings of Fact 5 and 11. Adopted in Findings of Fact 5 and 11. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12. Adopted in Finding of Fact 16. Adopted in Finding of Fact 14. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1550 Mr. Lewis C. Stewart 692 Waddel Way Pahokee, Florida 33476 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
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
Findings Of Fact On and after May 29, 1978, respondent Patricia Bose Haischer has been licensed by petitioner as a licensed practical nurse. She holds license No. 0482051. On May 1, 1981, an information was filed in the Circuit Court for the Sixth Judicial Circuit in Case No. CRC 8103052 CFANO (Pinellas County) charging respondent with "knowingly. . .commit[ting] a lewd and lascivious act in the presence of Yvonne Moir, a child under the age of fourteen years, by willfully and knowingly engaging in sexual activity in the presence of. . .Yvonne Moir. . .but without intent to commit sexual battery upon. . .Yvonne Moir." Petitioner's Exhibit No. 2. On her plea of guilty, respondent was adjudicated guilty of violating Section 800.04, Florida Statutes (1981), on August 19, 1981; and, on the same date, respondent was sentenced to twelve years' imprisonment. At the time of the hearing, respondent was confined at the Florida State Prison for Women. According to respondent's uncontroverted testimony, elicited in petitioner's case, she never fondled Yvonne Moir but was present and undressed while her husband had sexual intercourse with the child; she acted under the domination of her husband (who is now himself incarcerated for sex offenses) and was not altogether well emotionally at the time. Yvonne Moir was not in respondent's care as a nurse when these events transpired. Respondent's misbehavior evinced a disregard for Yvonne Moir's emotional health and reflects adversely on respondent's ability to practice nursing, for that reason. This opinion was expressed by a nurse with eighteen years' experience who testified for petitioner without objection from respondent. As a nurse, respondent has never harmed a patient or put a patient in jeopardy. She has had good recommendations from anybody who has ever supervised her, and one supervisor called her "trustworthy and dependable." During her imprisonment, respondent has visited a psychologist on a regular basis. She feels better and more confident about herself than she did at the time of the offense.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent suspend petitioner's license for two (2) years. DONE AND ENTERED this 20th day of April, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of April, 1982. COPIES FURNISHED: Patricia B. Haischer Box 202 F.C.I. Lowell, Florida 32663 William R. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING IN RE: PATRICIA MARIE B. HAISCHER, L.P.N. CASE NO. 0017303 License No. 0482051 DOAH NO. 81-3149 /
The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Gerald R. Straw, through sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes.
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Petition was received by the Division of Administrative Hearings on December 30, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department had requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. Final hearing in this cause was conducted on February 25, 1982. In the course of the final hearing, the Petitioner testified and offered as witnesses: Lois Turner, his mother; Alva Martin, R.N.; Larry Annis, Clinical Psychologist, and Kenneth Edwards, Vocational Education Instructor. The Respondent offered as witnesses: Robert Alcorn, Clinical Director for the Mentally Disordered Sex Offender Program at Florida State Hospital, and Larry Annis, Clinical Psychologist. The Respondent presented one (1) composite exhibit which was received into evidence. At all times pertinent to this proceeding, Petitioner has been in the custody of Respondent, in keeping with orders of court. His commitment has been on the basis of Chapter 917, Florida Statutes (1977), involving a breaking and entering criminal offense with related assault charges. In addition, the Petitioner has a past history in New York State for the criminal offense of sexual mischief. The arrest for the offenses in Florida occurred on July 22, 1977, and the Petitioner was committed to the Sexual Offender Program at North Florida Evaluation and Treatment Center on March 9, 1978. On August 3, 1978, a recommendation was made by staff of that facility to return the Petitioner to court for further disposition, based upon the belief that treatment had been exhausted. On September 13, 1978, he was released from that hospital program. That facility had not contacted other sex offender programs in the State of Florida prior to the release of the Petitioner and as a consequence, the Petitioner was recommitted to the Respondent by order of court dated October 31, 1978. He was placed in the sex offender program at Florida State Hospital in Chattahoochee, Florida, on January 27, 1979, and has resided in that program since that time. During his stay at Florida State Hospital, the Petitioner has undergone treatment in the program for the benefit of sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in dealing with the underlying disorder which caused his placement has reached a juncture where improvement is no longer expected in the patient. In the face of these circumstances, the Respondent has made a preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. These opinions were made known to the Petitioner and when confronted with this information, the Petitioner requested the formal hearing which is the subject of this Recommended Order. The program at Florida State Hospital has as its main focus the utilization of group therapy with adjunctive programs in recreation and occupational therapy, and this treatment regimen relies heavily on a patient's self-motivation. Respondent's Exhibit 1, admitted into evidence, is constituted of a series of clinical summaries related to the patient's performance during the course of his treatment at Florida State Hospital. In sum, the opinions stated in the clinical summaries accurately indicate that the Florida State Hospital has exhausted all available treatment for the Petitioner's underlying condition. Moreover, the presentation of the Petitioner's case to the Intra-Departmental Screening Committee, which is constituted of the administrative personnel of the various sex offender programs in the State of Florida, brought a correct perception that the Respondent has exhausted all available treatment for the Petitioner. Finally, the testimony given in the course of the hearing was in accord with those opinions expressed in the clinical summaries and the attitude of the Intra-Departmental Screening Committee. Petitioner's primary therapist, beginning in August, 1981, and continuing until the time of hearing, gave testimony in the course of the hearing. The therapist is Larry Annis, Clinical Psychologist. Annis shared the responsibility with a co-therapist until November, 1981, when he became the sole therapist for the Petitioner. Annis' testimony established that the Petitioner has been given a full and complete opportunity for participation in group therapy and in addition has been exposed to individual therapy sessions, and adjunctive therapy; to include, school, occupation and vocational training, ward government and participation in the ward milieu. The observed pattern of the Petitioner's participation in group therapy, on the part of Annis, is one of noting that the Petitioner talked to other persons in the group about their problems, but avoided talking about himself. In the group therapy sessions, Straw has denied having sexual problems and denied any guilt in connection with the underlying criminal offenses for which he stands convicted. (This was a similar attitude during the course of his stay at North Florida Evaluation and Treatment Center.) Annis indicated that the Petitioner has done well in adjunctive therapy, in particular, electrical wiring in which his performance has been exemplary. The Petitioner has not been found to be a management problem in terms of his conduct, according to Annis. The comments by Annis are correct. From Annis' observations, the Petitioner presents himself as attentative and having the ability to verbalize his feelings; however, his progress in the group therapy sessions has not been significant. In the therapy sessions, Annis has correctly identified that Straw is not interested in emotional discussions involving topics such as personal feelings, likes and dislikes, depression and anger. Petitioner is more interested in data collection and inquiring about why something is required, which is a more superficial concern. In the group sessions, Annis has found Petitioner to be truthful, if unwilling to explore personal areas such as those mentioned above, and in addition, sexual concerns. In the latter course of treatment, Annis has indicated that the matters of concern on the subject of the Petitioner's progress in the program relate to the Petitioner's ability to admit to negative feelings, anger and to explore antecedents to this type of emotion in order to arrive at alternative responses to he made to those emotions. Other specific concerns are as outlined in the fourteen (14) problem areas discussed in the August 13, 1981, clinical summary which is part of Respondent's Exhibit 1. Annis further indicated at the point where the determination was made that the treatment had been exhausted, that he, as therapist, has nonetheless continued to treat the Petitioner's condition and has undertaken a new method of dealing with the problem, to include the removal of bimonthly reports in trying to see how Petitioner would perform in a less structured environment. This technique has not been one leading to progress on the part of the Petitioner. In summary, Annis has correctly concluded that the Petitioner has reached maximum benefits from the program at Chattahoochee, and having exhausted available treatment, there would be no benefit to be derived by the Petitioner's continued participation in the program. The Unit Director at Florida State, Robert H. Alcorn, testified that the Petitioner's stay in the program was about average in terms of duration. Alcorn has observed no significant progress in the Petitioner in dealing with the underlying sexual problem. Alcorn finds the Petitioner to be socially isolated, and a person who refuses to discuss emotional matters and issues central to himself. Alcorn notes that the Petitioner deals in universal terms when dealing with the matters of daily life, to include other members of the sex offender program. Alcorn's observations are valid, and in the face of these observations, Alcorn presented the Petitioner's case to the Intra-Departmental Screening Committee and no further placement could be found for the Petitioner. In other words, it was correctly concluded that the Department, as well as Florida State Hospital had exhausted all appropriate treatment for the Petitioner. Petitioner's mother, Lois Turner, gave testimony. She has seen progress in the Petitioner's emotional demeanor and that opinion is borne out by observations of persons in the treatment program. In particular, HRS. Turner notes that her son does not now have periods in which his thinking seems to be disassociative. This is as contrasted with her observations of her son five (5) years ago when she found him to be very disoriented. HRS. Turner also observed that the Petitioner has been truthful with her in her discussions with him. Alva Martin, R.N. and therapist in the Sex Offender Program at Chattahoochee, indicated that she had treated the Petitioner from November, 1979, through May, 1980. During the course of her treatment, she observed that the Petitioner had improved in that he did not appear as withdrawn and became more involved in activities with other persons within the program. The goals in this entry level into the Sex Offender Program, which were set out by Martin for the benefit of the Petitioner, were to try to get Straw to converse more with other people about his problems and to have general conversations with individuals in the ward milieu. It was not the intention of this element of the therapy to question the Petitioner about the underlying charges for which he was placed in the program. Martin noted some progress on the part of the Petitioner in his dealing with his angry feelings and improvement in his ability to verbalize. Again, from her observations, the Petitioner was always truthful in his discussions. Kenneth Edwards, a Vocational Instructor at Florida State Hospital, first met the Petitioner in April of 1980. At that time, Edwards noted that the Petitioner lacked self-confidence and an ability to relate to others. Petitioner tended to stay by himself. There has been a dramatic improvement in this circumstance to the extent that the Petitioner now serves as an instructor for other program participants, in the field of television repair. Edwards feels that he has a good relationship with Straw and feels that Straw has improved in his relationship with other persons. Petitioner, in his testimony, indicated that he feels that he is not guilty of the offenses as charged. In addition, he feels that he has progressed while being treated in the program at Florida State Hospital, and although he feels that he still has an underlying problem with sexual acting out, he feels that he has completed the program successfully and could control any temptations of a sexual nature. He also feels that he has discussed his underlying sexual problems in the past and would be willing to in the future. He feels that he is being removed from the program because he refuses to admit that he is guilty of committing the offenses which caused him to be placed in the program. He also takes issue with the fourteen (14) problem areas set forth in the August 13, 1981, clinical summary. He thinks that any human being would have problems similar to that nature and that those are problems which are not unique to Gerald Straw. In summary, the Respondent has exhausted all appropriate treatment for the Petitioner's sexual deviance, but that treatment has not been totally successful and the patient continues to suffer with an underlying sexual disorder.
Findings Of Fact Respondent, Teresa D. Mejico, was certified as a correctional officer by petitioner, Criminal Justice Standards and Training Commission, on February 17, 1988, and issued certificate number 03-87-502-02. At approximately 2:45 a.m., on October 3, 1988, respondent, while employed as a correctional officer at the Broward Correctional Institute, was observed by her supervisor leaning on her desk in the officer's station at Dormitory H-4. Sitting in a chair at respondent's side was Inmate Deronda Lemmonds, who was observed holding respondent's right arm, and kissing, licking and nuzzling it, while her right hand was between respondent's legs in the area of her crotch. Respondent was immediately relieved of duty, and later that day was discharged from her employment at Broward Correctional Institute for her failure to comply with Florida Department of Corrections Rule 33-4.002(28), Florida Administrative Code. That rule provides: Employees shall maintain a professional relationship with all persons in the custody or under supervision of the Department, and their immediate family or visitors. No personal or business relationships are permitted. Marriage between employees and inmates is prohibited. That respondent was fully aware of the foregoing rule, and the standard of conduct it established, cannot be gainsaid for she acknowledged such at hearing. Notwithstanding such knowledge, however, respondent persisted in fostering the personal relationship which existed between her and Inmate Lemmonds despite denials to her superintendent that any such relationship existed and counseling from her superintendent to avoid any such relationships. Following the termination of her employment at Broward Correctional Institute, respondent maintained contact with Inmate Lemmonds through the mail and by telephone, and variously expressed her affection and love for the inmate. On one occasion, she mailed the inmate 20-25 photographs of herself, including some photographs that captured respondent in partially nude and suggestive poses. In all, the proof demonstrated that respondent was romantically involved with Inmate Lemmonds while she was employed at Broward Correctional Institute, and continued to be so involved as of the date of hearing. It further demonstrated that she was untruthful with her superintendent, failed to abide the rules of conduct for correctional officers, and neglected her duty to guard Dormitory H-4 while engaged in a liaison with an inmate under her charge.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent' s certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May 1990. WILLIAM J. KENDRICK 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 24th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6410 Petitioner's proposed findings of fact are addressed as follows: 1. Adopted in paragraph 1. 2-4. Adopted in paragraph 4. 5-9. Not material or not necessary to result reached. 10-14. Adopted in paragraph 5. Adopted in paragraph 2. Adopted in paragraph 3. COPIES FURNISHED: Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Teresa D. Mejico 7502 S.W. 5th Street North Lauderdale, Florida 33068 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Petitioner' termination from employment was in violation of Section 760.10, Florida Statutes.
Findings Of Fact On March 9, 1999, the Petitioner was an employee of the State of Florida, Department of Corrections (Department) working as a correctional officer at the Santa Rosa County Correctional Institution in Milton, Florida. The Petitioner was employed as a Correctional Officer, on probationary status. On February 25, 1999, the Petitioner was arrested for a purported traffic violation by a law enforcement officer in Escambia county. An officer of the Escambia County Sheriff's Department, at approximately 1:08 a.m., on that day, observed the Petitioner's blue Toyota Tercel run a stop sign. The officer pulled in behind the vehicle and the vehicle made a quick turn off the road behind a closed business establishment and turned off its lights. The officer stopped near the vehicle and approached the driver's side and asked the driver for identification. The driver was later identified as the Petitioner, Perry Foster. Mr. Foster told the officer that his one-year-old son had torn up his driver's license. While the officer was talking with the Petitioner the officer detected a strong odor of marijuana emanating from inside the vehicle. Believing a narcotic violation was taking place the officer summoned another officer with a drug-detecting dog. The dog detected marijuana in the vehicle. Both the Petitioner and his passenger, Eric Adams, were placed outside the vehicle while the investigation was continuing. Officer Price, who brought the dog to the scene, detected the odor of marijuana on the person of Eric Adams. Ultimately, Eric Adams allowed a search and Officer Price retrieved a small package of marijuana from Mr. Adams shirt pocket. Mr. Adams was arrested for "possession of marijuana under 20 grams." The officer found no marijuana or drugs inside the vehicle although the dog strongly alerted on the driver's seat where the Petitioner had been sitting. There was the odor of marijuana along with signs of blunt cigar usage. Blunt cigars are typically used, hollowed out and packed with marijuana to smoke marijuana, without revealing its presence and use. In any event, the Petitioner was not arrested for possession or use of marijuana, none was found on his person, and he was given a traffic citation and released. The friend or family member who was his passenger was arrested for possession of marijuana. The evidence is unrefuted that the Petitioner was driving the vehicle with a passenger, knowing that that passenger possessed and was using marijuana in his presence. The Petitioner's employer, specifically Warden Ardro Johnson, was made aware of the Escambia County Sheriff's Office offense report that detailed the above facts and circumstances concerning the Petitioner's arrest and the arrest of his companion on the night in question. While the Petitioner remonstrated that he only was charged with running a stop sign and had not been using drugs and that he later passed a drug- related urinalysis, that position misses the point that his termination was not because of drug use. Rather, the Petitioner was dismissed by Warden Johnson from his position as a probationary employee pursuant to Rule 60K-4.003(4), Florida Administrative Code, because his employer believes that he committed conduct unbecoming a correctional officer. The true reason the Petitioner was terminated was because, as delineated by Warden Johnson in his letter to the Petitioner of March 23, 1999 (in evidence as Petitioner's Exhibit 1), the Petitioner made a personal choice to overlook, ignore, or fail to report a criminal violation occurring in his immediate presence. Warden Johnson thus explained that this leaves a clear question as to whether the Petitioner had, or would in the future, perform his correctional officer duties in the same manner by ignoring, overlooking or failing to report infractions. Because of this and because he was a probationary employee and thus had not yet established his full job qualifications, the Petitioner was terminated. There is no evidence that he was terminated based upon any considerations of his race. There is also no evidence that he was replaced in his position. Moreover, there is no evidence that if he was replaced he was replaced by a new employee who is not a member of the Petitioner's protected class. The evidence that the Petitioner was in the car at approximately 1:00 a.m., on the morning in question with a passenger who was possessed of and using marijuana is unrefuted and is accepted as credible.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition in its entirety. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 2nd day of August, 2002. COPIES FURNISHED: Mark J. Henderson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Perry A. Foster 1882 Gary Circle Pensacola, Florida 32505 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 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (2002), by unlawfully soliciting a woman to commit prostitution, in violation of Section 796.07(2)(f), Florida Statutes (2002).
Findings Of Fact Respondent has been a certified correctional officer since 1990. He holds Correctional Certificate Number 53627. On December 8, 1999, Respondent was operating his motor vehicle in a light rain in the vicinity of 68th Avenue and 17th Street at approximately 8:45 p.m. He saw a young female standing alongside the road. Respondent stopped his car and rolled down the passenger side window. He asked the woman if she needed a ride. She replied, "Do I ride?" This response implied to Respondent that she would assume the superior position in any sexual activity. Respondent repeated his initial question, and the woman replied with the same answer. The woman was a police officer who was conducting a prostitution sting operation with other officers, who were not visible to Respondent. The woman did not testify, and the other officers did not hear the conversation that took place between the woman and Respondent, so the sole source of the conversation is Respondent, who testified at the hearing and gave a statement to investigators. The conversation as described in these findings of fact is derived entirely from Respondent. Respondent replied to the woman, "I got $20." The woman asked, "For what?" Respondent answered, "For a fuck." The woman asked Respondent would he give her a ride back to their current location, and Respondent assured her that he would. The woman then turned away, explaining to Respondent that she was getting her pocketbook, but actually signalling to her fellow officers to take down Respondent. Respondent had felt that something was wrong and had started to drive away, but the officers quickly apprehended him. Following his arrest, Respondent was charged with soliciting a prostitution. However, he completed a pretrial diversion program, and the State Attorney's Office dismissed the case.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 6th day of November, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Laurie Beth Binder Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William Chennault Chennault Attorneys & Counsellors at Law Post Office Box 1097 Fort Lauderdale, Florida 33302-1097
The Issue At issue in this proceeding is whether respondent committed the offense charged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, respondent, Frank L. Hiler, was employed as a correctional officer at the Martin Correctional Institution (MCI). Although no direct proof was offered on the issue, it is inferred that, since respondent held such a position, he was appropriately certified by the Criminal Justice Standards and Training Commission. In April 1989, the Florida Department of Law Enforcement (FDLE), at the request of the Department of Corrections (DOC), commenced an investigation to address allegations that narcotics were being smuggled into MCI. During the course of such investigation, information was developed which implicated respondent in such illegal activity. Pertinent to this case, the proof demonstrates that in June 1989, respondent, on behalf of an inmate, picked up a package containing two ounces of cannabis, commonly known as marijuana, and one or two ounces of cocaine from the inmate's wife in Miami, Florida, for delivery to the inmate at MCI. At the time respondent took possession of the narcotics he was dressed in the uniform of a correctional officer and was driving a van with the DOC logo on the side. Such narcotics were not, however, delivered to the inmate because of events that were to have occurred a day or so later. Acting on a tip that respondent might be attempting to smuggle narcotics into MCI, FDLE stopped the vehicle in which he was riding outside the complex and conducted a search. Such search uncovered a "small quantity" of marijuana in the vehicle. 1/ Respondent was then offered the opportunity to give a urine sample to test for narcotics, which he declined, but offered to do so at a later date. Respondent did not, however, return to MCI, and his employment was terminated on June 28, 1989, premised on job abandonment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner render a final order revoking respondent's certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of December 1992. WILLIAM J. KENDRICK 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 22nd day of December 1992.
The Issue Whether Respondent committed an unlawful employment practice in the case of Petitioner.
Findings Of Fact Ms. Rippy commenced her employment with the Department on June 30, 2000, as a correctional officer, at the Florida State Prison Work Camp at Starke, Florida. She was terminated on June 19, 2001. The Department of Corrections is a state agency that is charged with providing incarceration that supports the intentions of criminal law, among other things. The Florida Commission on Human Relations administers the Florida Civil Rights Act of 1992. When Ms. Rippy was hired as a correctional officer on June 30, 2000, she, and the Department, believed she was subject to a one-year probationary period. During that time, the parties believed she could be terminated without cause. Subsequent to her employment she had unscheduled but excused absences on as many as 15 occasions. On June 12, 2001, Ms. Rippy requested that her supervisor, Lt. J. L. Oliver, approve leave for her to commence Sunday, June 17, 2001. Lt. Oliver did not approve this request because to approve the request would cause the staffing level at the facility to recede below permitted limits. On Saturday June 16, 2001, at 6:00 p.m., Ms. Rippy called Sergeant K. Gilbert, Third Shift Control Room Sergeant, and told him that she was taking medication prescribed by a doctor that she had seen that day and that she would be sleeping and that as a result, she would be unable to report to work on her shift which began at midnight, June 17, 2001. She also volunteered that she would bring in a doctor's note excusing her absence. On Monday, June 18, 2001, Lt. Oliver asked her if she had a doctor's note explaining her absence on June 17, 2001. She replied that she had not been ill as reported to Sergeant Gilbert, but had in fact attended a party. She told him that she had not seen a doctor, was not on medication, and had attended a "bachelorette party" on June 17, 2001. In other words, she admitted that she had lied about the reason for her absence. She admitted this, under oath, at the hearing. Lt. Oliver informed her that it was his intention to charge her with unauthorized absence without pay, and possibly to take other disciplinary measures. Subsequently, persons higher in the chain-of-command decided to terminate Ms. Rippy. This decision was made because she had excess absences and because she had lied to persons in authority. This occurred 11 days before everyone believed she would have attained the status of permanent career service. On June 21, 2001, Correctional Officer Corey M. McMurry (Officer McMurry), a white male, was arrested in Starke, Florida, for driving under the influence of alcohol. As a result, on July 11, 2001, he was adjudicated guilty and sentenced to twelve months supervised probation, and suffered other court-ordered sanctions. Officer McMurry, at the time of his arrest, was a probationary employee. He was served a written reprimand because of his conviction of driving under the influence on December 19, 2001. Ms. Rippy testified, without foundation, that Officer McMurry's probation terminated on November 15, 2001, and that the Department did not learn of his arrest until December 2001. Ms. Rippy's testimony provides a plausible explanation for why more than five months expired from the time of his conviction until the issuance of the written reprimand. Ms. Rippy believes that the circumstances surrounding her offense were substantially similar to those of Officer McMurry. However, the chronic absenteeism of an employee, including unexcused absences, is more likely to disturb the good management of a correctional facility than an employee being convicted of driving under the influence on one occasion. Assistant Warden Doug Watson believes that correctional officers should be trustworthy. He believes that the credibility is critical and that lying is an extremely serious offense, when committed by a correctional officer. Ms. Rippy was paid $13.30 per hour and received substantial fringe benefits when she worked for the Department. Following her termination she was unemployed until January 2002, when she began working for a Wendy's restaurant for $5.75 per hour. In April 2002, she obtained employment with a private security company named Securitas. She started at $6.40 and received an increase to $7.00 per hour at a subsequent unknown date, and she continues to be employed with the company.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that a final order be entered which dismisses Ms. Rippy's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 25th day of August, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of August, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mark Henderson, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399 Juliette C. Rippy 1622 Northeast 19th Place Gainesville, Florida 32609 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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.
