Findings Of Fact Respondent Hostetler holds Certificate #432348 covering the areas of business education, physical education, and administration and supervision. Said certificate is valid through 1987. On or about October 2, 1978, Respondent pled guilty to child molestation in the State of Georgia and was placed on five years probation by the Superior Court of Fulton County, Georgia. See Exhibit 4.
Recommendation Having found the Respondent, Barry L. Hostetler, guilty of violating Section 231.28, Florida Statutes, it is recommended that the teaching certificate of the Respondent be revoked. DONE and RECOMMENDED this 11th day of January, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 11th day of January, 1983. COPIES FURNISHED: Roy L. Glass, Esquire 1400 66th Street, North, Suite 480 Post Office Box 10008 St. Petersburg, Florida 33733 Mr. Barry L. Hostetler 360 24th Street, NW, #1031 Winter Haven, Florida 33880 Donald L. Griesheimer, Director Education Practices Commission 319 West Madison Street, Room 3 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA EDUCATION PRACTICES COMMISSION RALPH D. TURLINGTON, as Commissioner of Education, Petitioner, vs. CASE NO. 82-1468 BARRY L. HOSTETLER, Respondent. /
The Issue The issues in this case involve whether the Respondent has engaged in acts of misconduct alleged in the Administrative Complaint, and if so, whether the Respondent's Florida educator's certificate should be revoked or other disciplinary sanction imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged with regulating the standards for entry into practice as a teacher, including licensure and the regulation of practice of teachers once they are licensed. The Respondent is a licensed Florida Educator (teacher) holding certificate 795510, covering the area of mathematics. That license is valid through June 30, 2003. During the 1999-2000 and 2000-2001 school years the Respondent was employed with the Washington County School District as a teacher at Vernon Middle School. From September 1999 through December 2000 the Respondent was assigned to teach low-functioning exceptional student education (ESE) students. ESE students are those who have learning disabilities or physical impairments which adversely affect the ability to learn. In January 2001, the Respondent sought and obtained a transfer from her ESE assignment to a position teaching mathematics classes, which was within the scope of her certificate. She continued to teach mathematics until her suspension with pay in April 2001. During the 1999-2000 and 2000-2001 school years the Respondent also taught adult night school courses. When the Respondent became employed as an ESE teacher the Washington County School District issued her a laptop computer for the purpose of preparing individual education plans (IEP) and other paperwork required in the ESE program. The Vernon Middle School guidance counselor and its other ESE teacher were also issued laptop computers for ESE paperwork purposes. Witness Heather Miller, testifying for the Petitioner, stated that all ESE teachers received a letter limiting the use of the laptop to ESE purposes. The Respondent testified that she did not receive any letter or other instructions limiting her use of the computer. Ms. Miller admitted on cross-examination that she was not present when any such instructions may have been delivered to the Respondent. Be that as it may, the gravaman of the charges in the administrative complaint do not involve use of the ESE laptop computer for personal purposes versus employment-related purposes. The Respondent may have been instructed not to use the computer for anything other than ESE instructional-related purposes or may not have been given such instructions, or may simply not recall getting such instructions. Whether or not she received such instructions is immaterial to the charges in the administrative complaint, however. The Respondent had the laptop computer in her classroom when it was first issued to her, while she was learning how to use it. Sometime early in her use of it she installed a program called "Clue Finder" which is a software program for children for the third to fifth grade. She allowed the students to use this software in class. The laptop had never been connected to the internet at the time she permitted students to use it in her classroom and her classroom did not have internet access at that time. She ceased permitting students to use the laptop after she had a discussion with the other ESE teacher, Julie Johnson, about her not permitting her students to use her laptop. The Respondent's students were not permitted to use the laptop from that point forward, which was sometime in the month of February 2000. Each laptop was equipped with a "zip drive" and "zip disc" in order to download the "GibCo Dynamo Program," the program used for ESE paperwork purposes. Therefore, it was unnecessary for ESE employees to access the internet using their school board-issued laptop. ESE employees were permitted to remove and transport their laptops away from school premises so that they could work on IEP and other ESE paperwork at other locations, including their homes. The Respondent took her laptop home sometime during or after February 2000 and began becoming acquainted with the GibCo Dynamo Program, which helps ESE teachers correctly complete IEP's and other paperwork. It was necessary to periodically update the GibCO Program to reflect changes in the ESE forms. The Respondent already had the laptop at home and did her IEP work there because she did not have time to do it in class. Therefore, she asked Brenda Miller, the ESE resource person from the county office, if she could use her laptop to update her GibCo program through her home internet service provider. She received permission and did so in late February or early March 2000. On one occasion prior to the end of the spring 2000 school term, the Respondent permitted one of her adult alternative education students to use her laptop to complete a paper he was writing. She assisted him in using the laptop and was present the entire time he was using it. This incident occurred before she had begun any personal use of the laptop or put any of her programs on it. Therefore, the use occurred before the material contained in Petitioner's Exhibit one was received or stored on the laptop. The Respondent did not teach during the summer of 2000 and spent more time accessing the internet through the school laptop for personal purposes. Although they were still living in the same home, the Respondent and her husband had become estranged and were ultimately divorced. During the summer of 2000 the Respondent used the ICQ program to communicate with and strike-up non-sexual relationships with other people, including males. The ICQ program is a forum or "chat room," with the exchange of ideas and information on virtually any subject. Users fill out a personal profile which informs other users about the person's interests or subjects the person is interested in receiving or sending communications about. The Respondent contends that her ICQ profile only contained her name, age and gender. When such a user starts his or her computer other users are alerted to that user's presence and availability for communication. The user may send or receive communications to or from others, which communications can contain attachments, such as documents or pictures. During the time she was using the laptop to access the ICQ program, the Respondent's husband, her baby-sitter and her baby-sitter's mother also had access to the laptop at various times in her home. The Respondent's laptop was connected to the internet at her home for approximately three and one-half to four months. Sometime during the summer of 2000 lightening struck her modem and destroyed it. The laptop was never connected to the internet after that event. During the time the laptop was connected to the internet in the Respondent's home the documents contained in Petitioner's exhibit one were received on the laptop and placed on the hard drive in fifty-eight program folders. The Respondent maintains that she did not realize that the materials contained in Petitioner's Exhibit One, which were on her computer, had been recorded on her hard drive. She admits to seeing some of those documents in Petitioner's exhibit one but maintains that she had not seen all of them. She maintains that she did not see many of the items in Petitioner's Exhibit One, especially items which indicate the ICQ identification name "Hotrod," which was that of her husband. The Respondent claimed that she never knowingly or intentionally accessed or "downloaded" any pornographic materials on her school laptop, nor did she solicit such material from anyone else. During the time her laptop was operating on the internet, through the ICQ program, she would sometime receive messages with documents attached. On some occasions she states that she would discover sexually explicit material when she opened the document and that when she did so would immediately close the file and assumed that it had been deleted. She claims that she had no idea the information was being saved on the computer's hard drive. If the Respondent received unsolicited, sexually explicit material from someone she had wanted to chat with she states that she would inform them not to send that type of information if they wanted to continue to communicate with her. During the time period in question the Respondent also received unsolicited e-mail of a sexually explicit nature which indicated that she had subscribed to it, although she states she never had. The fact that an e-mail indicates that the recipient is a subscriber does not mean that the recipient actually solicited or subscribed to the e-mail. Rather, the recipient's name could have been obtained from another source merely upon the receiver's profile having been provided to a particular site. It is unclear how the material contained in Petitioner's Exhibit One was saved on the hard drive of the Respondent's laptop. It can not be precisely determined who saved a particular file or who if anyone opened and viewed a particular file, primarily because the Respondent did not have sole access to the computer while it was in her home. It is probable that the Respondent did obtain some of the material that was present on her laptop hard drive, as she did acknowledge having seen some of the material in the past, when confronted with the presence of it by her employer. It cannot be determined from a review of the laptop hard drive that the Respondent named or saved any specific file contained in the Petitioner's exhibit one. After the laptop's modem was destroyed by lighting, the Respondent continued to use the laptop for her IEP's until she returned the computer to the school in September 2000, at the request of Ms. Harrell. The Respondent specifically requested permission to lock the computer up and Ms. Harrell told her she could keep it in a locked storage room, which she did. The storage room was in the administration building, which was next to the building in which her classroom was located. The laptop remained in the locked storage room until October 2000, when the Respondent was assigned a new ESE student. She brought the laptop to the classroom for a short time on that one occasion to work on the new student's IEP, but the students never had access to the computer nor were they ever in a position to see what she was doing on the computer. In January 2001, the Respondent was re-assigned, at her request, from the ESE position to the position of math teacher, which was within her area of certification. She had no further use for the laptop and believed she had removed from it all programs, games and other information she had put on the computer as a result of her personnel use. The Respondent removed her internet service program, Digital Express, and the ICQ Program, believing that this action removed anything associated with these programs from the computer. She was unaware that there were separate program files for the ICQ Program saved to the hard drive. If she had known of this she would have deleted them. Gerald Fender, the Washington County School District Computer Technician indeed saw evidence that an attempt had been made to remove information from the Respondent's laptop when he inspected it. The Respondent's laptop was turned over to her successor, Aubrey Herndon, the new ESE teacher, who placed it into a locked closet in his classroom. The computer remained there until approximately April 10, 2001, when Mr. Herndon removed it to learn how to use it to prepare his IEP. On April 10, 2001, Heather Miller was assisting Mr. Herndon with transferring information from a zip disc to the laptop when she noticed two sites listed on the "favorites" screen, "ALT.Sex Stories" and "Asclepius Himself." Upon seeing these items, Ms. Miller took the laptop and reported what she had found to the principal, Ms. Harrell and the School Resource Officer, Deputy Mark Collins. Ms. Miller and Officer Collins searched the computer for other suspicious files but were unable to locate any. The next day, Gerald Fender, the school board computer technician was called in and asked to search the computer. After an extensive search, Mr. Fender located the ICQ Program in the program files. In the afternoon of April 11, 2001, the Respondent was called to Ms. Harrell's office and confronted with some of the information contained in Petitioner's Exhibit One. The first document the Respondent was shown was page eighteen of Petitioner's Exhibit One from a program called "pal talk" which was supposed to be a program which enables a person to speak to another person over the internet. The Respondent was shocked when she was shown this document because she had thought she had deleted the entire pal talk program and the file containing this document, after she had received the document when she first accessed the pal talk program. She was shocked when this sexually explicit document appeared through a program she had understood to be a voice program and which she thought she had immediately taken off the computer. The Respondent was also shown a copy of page twenty- nine of Petitioner's Exhibit One, which was a sexually explicit picture of a man standing in a shower. She recognized that picture as also coming from her computer. She acknowledged that the two pictures she was shown were from her computer and then she told "them" that they did not have to show her anymore. There was some conflict in the testimony regarding the precise number of pictures from Exhibit One which were shown to the Respondent. It is unnecessary to resolve this discrepancy because all of the testimony of all witnesses present is consistent that the Respondent acknowledged that the pictures were from her laptop computer after being shown a few of them and no more were therefore shown. The Respondent was asked whether the students had ever used the computer and she said that they had, but that the students were allowed to play games on the computer only during the time before she had taken the computer to her home and before the information contained in Petitioner's Exhibit One had ever been received. The Respondent also stated in that initial meeting on April 11, 2001, that she had thought that she had deleted all the information which she had been shown from the computer. During this meeting the Respondent also made a statement to the effect that she had used the laptop at night to access her ICQ file when she "would get bored" while working on class work. She was referring to working at home and not in the classroom. Also, during this meeting she told Officer Collins that the students had never seen the objectionable information, and he indicated that he would interview her students, which she encouraged him to do. No student interviewed indicated that he or she had seen any of the information contained in the Petitioner's Exhibit One. Officer Collins also consulted with Captain Strickland the Chief of Investigations of the Washington County Sheriff's Department Capt. Strickland advised that there was no basis for any criminal charges. The Respondent met with Superintendent Jerry Tyre in his office on May 3, 2001, and submitted her resignation effective May 14, 2001. The Respondent had already been informed by Ms. Harrell before this incident that she was not going to be recommended for renewal as an annual contract teacher for the next year. By resigning rather than contesting the superintendent's suspension, the Respondent believed that she could resolve the situation quickly without any further publicity or notoriety. In June 2001, the Respondent applied for employment as a teacher in Bay County, Florida. She submitted written references from three former colleagues, Paul Parker, her supervisor and director of the Washington County Technician Center; Mary Davis, Adult Education Coordinator and Genevelyn Brown, EAS Assistant. Each of the individuals was informed of the circumstances surrounding the Respondent's resignation and each was still willing to give her a positive reference. The Respondent also solicited support from several parents of students she had taught or tutored while employed in Washington County, during the investigation of this matter by the Department of Education. She informed each of these individuals of the nature of the allegations against her and the circumstances surrounding her resignation. Each of these individuals, Rhonda Duren, Julie Bielinski, Brenda Richards and Victor Marshall, submitted written statements supporting her ability and their belief she should continue as a teacher in Washington County or elsewhere. The Respondent obtained employment as a teacher with the School Board of Bay County at Mosely High for the 2001-2002 school year. She was still employed as a teacher in Bay County at the time of this hearing. She has had no disciplinary problems of a similar nature to that to which occurred in Washington County. It is not clear whether the authorities who hired her in Bay County were aware of the circumstances surrounding her resignation from her position in Washington County. Both prior and subsequent to the events at issue in this case, the Respondent has never had any accusations of any similar misconduct and has no disciplinary record. It has not been established that either the intentional or inadvertent accessing of sexually explicit materials in the privacy of the Respondent's home (even though on a school-issued computer), was immoral or grossly immoral. The downloading of the materials and the presence of them on the computer never became accessible to any students and no student was ever aware that such information was on the computer. It has not been established that the Respondent's failure to delete the sexually explicit material from the computer prior to taking it back to her place of employment constitutes immorality or gross immorality. It has not been shown that the conduct involved in this proceeding was a matter of any notoriety so that her position in the education profession could be the subject of any public disgrace or disrespect or that her service to the community in that profession could be impaired. There is no clear and convincing evidence that the Respondent engaged in personal conduct which is seriously reduced her effectiveness as an employee of the school board. The Petitioner elicited opinion testimony from witnesses which was conclusary and failed to specify precisely how the conduct could seriously reduce her effectiveness as a teacher. The opinion testimony was based on a factual assumption which was not established by the evidence, namely that the Respondent's students used her laptop after the sexually explicit material had been received and thus had reasonable access to the laptop with that material on it. In fact, the evidence of record supports the opposite conclusion; that the students had no such access to the laptop after the sexually explicit material had been received on it, so the opinions to the effect that her effectiveness has been seriously reduced cannot be accepted since they are based upon an invalid assumption. There is no clear and convincing evidence that the Respondent failed to make a reasonable effort to protect students from harmful conditions concerning learning or their mental health or physical safety. The Respondent tried to delete the material from her laptop, albeit unsuccessfully, prior to returning it to school, based upon what she knew at that time. She returned it to school thinking it was deleted when it was not. Nevertheless, her conduct after the computer was returned to her school prevented the students from gaining access to it since the computer was maintained in a locked storeroom, one building removed from the building where her classroom was located. Thus it was highly unlikely that the students would have access to the sexually explicit material on the computer. There is no evidence in the record that they did.
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 Commissioner of Education dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of March, 2003, 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 the Clerk of the Division of Administrative Hearings this 14th day of March, 2003. COPIES FURNISHED: J. David Holder, Esquire 24357 U.S. Highway 331 South Santa Rosa Beach, Florida 32459 Thomas W. Brooks, Esquire Meyer & Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Kathleen M. Richards, Executive Director Department of Education Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educators Specialist Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
The Issue Should Respondent be terminated from the Polk County School System based on the allegations contained in the letter from Gene Reynolds, Superintendent of Schools (Superintendent), Polk County, Florida, dated March 15, 1999?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner Polk County School Board is the county agency responsible for providing public primary, secondary, and adult education in Polk County, Florida, and to facilitate that responsibility the Board hires certified teachers for classroom and administrative activity. Respondent is employed by the Board as an elementary classroom teacher, a position he has held since March 8, 1993. During the 1998-99 school year, Respondent was employed as a kindergarten classroom teacher at Eastside Elementary School, located in Haines City, Florida. During his employment as a classroom teacher with the Board, Respondent has received satisfactory evaluations. Prior to the events giving rise to this proceeding, Respondent has had no disciplinary problems during his employment as a classroom teacher with the Board. In January 1999, Respondent missed three days of school as a result of an ankle injury. While Respondent was absent, a substitute teacher taught his classes. While looking for a video tape to show the class, the substitute teacher discovered what appeared to be a pornographic video tape in the cabinet next to the video cassette recorder where other video tapes used in the classroom were stored. The substitute teacher removed the video tape and delivered it to Josephine Howard, principal of Eastside Elementary School. The video tape contains explicit, graphic, hard-core pornographic sequences of adult men engaged in explicit sexual acts. Respondent purchased the video tape at a local video store and brought it to Eastside Elementary School for purposes of viewing the tape when students or other persons were not present. Respondent stored the video tape in the classroom in an unlocked cabinet next to the video cassette recorder with other video tapes used for educational purposes Respondent did not desire or intend to allow students to view the video tape. However, since the video tape was stored in an unlocked cabinet, students did have access to the video tape and could have inadvertently viewed the video tape. This incident has not been reported in any newspaper, including those covering the Polk County area, nor has there been any coverage by any radio or television station, including those covering the Polk County area. Other than the incident being brought to the attention of the Board for disciplinary purposes and the news release of the Board's action, the incident has not been made public. In fact, there has been a concerted effort by the Board, the Superintendent's office, and the office of the principal at Eastside Elementary School to prevent this matter from becoming public until after final action by the Board. Since the public is not generally aware of this matter, there has been no outcry of public, parental, or student demand for Respondent's dismissal. Likewise, there has been no demand by any parent that their child not be placed in Respondent's class. Although there has been no public "airing" of this incident, there has been an inquiry by at least one newspaper for the facts of this incident after final action by the Board. Therefore, it appears that there will be a public "airing" of the facts of this incident upon final action by the Board. Respondent has received numerous awards for his teaching technique and work in education. Additionally, Respondent has the support of his friends, associates, and fellow church members. Josephine Howard has taught or held positions as principal or as an assistant principal in the public schools in Haines City, Florida for approximately 30 and one half years. Sixteen and one half of those years have been as either a principal or as an assistant principal. Josephine Howard has lived in Haines City, Florida for approximately 34 years. Josephine Howard, based on her knowledge of, and experience with, the staff at Eastside Elementary School, and her knowledge of, and experience with, the community of Haines City and Petitioner's serious conduct of storing the video tape in a cabinet where persons other than school personnel would have access to such video tape, creating the possibility for children of such sensitive age to be exposed to the contents of the video tape, is of the opinion that upon this matter becoming public knowledge, Petitioner's effectiveness as a teacher at Eastside Elementary School, as well as other schools within the community of Haines City, would be impaired. Dennis Dunn has been employed by the Polk County School Board for 30 years, holding positions as a teacher (in elementary school, junior high school, and high school), assistant principal, principal (in junior high school and high school), deputy superintendent, and assistant superintendent for personnel. Mr. Dunn's work with the Polk County School System has brought him in touch with not only the community of Haines City, but all of the communities within Polk County, Florida Dennis Dunn, based on his knowledge of, and experience with, the staff of the several public schools in Polk County and his knowledge of, and experience with, the several communities that make up Polk County and Petitioner's serious conduct of storing the video tape in a cabinet where persons other than school personnel would have access to such video tape, creating the possibility for children of such sensitive age to be exposed to the contents of the video tape, is of the opinion that upon this matter becoming public knowledge, Petitioner's effectiveness as a teacher within all of Polk County would be impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order finding that Petitioner committed misconduct in office, that just cause for dismissal has been shown, and that Petitioner's contract of employment with the Board is terminated. DONE AND ENTERED this 20th day of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1999. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP Post Office Drawer 30 Bartow, Florida 33831 Phillip E. Kuhn, Esquire 1533 Tomahawk Trail, South Lakeland, Florida 33813 Mark S. Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Mr. Glenn Reynolds Superintendent of Schools Polk County School Board 1915 South Floral Avenue Bartow, Florida 33830-0391 Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether or not, on or about January 25, 1977, in the licensed premises located at 1600 North Dale Mabry Highway, Tampa, Hillsborough County, Florida, the licensed premises of the Respondent, the Respondent's employee, agent, servant, or entertainer, to wit: Linda Sue Richardson and/or Gayle Jeanette Landrum, allegedly employed at the licensed premises or employed on a contractual basis by the Respondent to entertain, perform, or work on the licensed premises known as, Tigers Den A Go Go, did commit or engage in a lewd and lascivious performance by a live person by committing obscene and indecent acts in violation of 847.011, F.S. and thereby subject the licensee to the penalty provisions of s. 561.29, F.S.
Findings Of Fact At present and at all times pertinent to this cause, to include January 25, 1977, the Respondent, Mardi Gras De Tampa, Inc., was the holder of license no. 39-0246, series 4-COP, held with the State of Florida, Division of Beverage. This license was held to trade as Tigers Den A Go Go in a premises located at 1600 North Dale Mabry Highway, Tampa, Hillsborough County, Florida. On January 25, 1977, officers of the Hillsborough County Sheriff's Office entered the licensed premises. The officers were Detectives Ridgeway and Coakley. While in the licensed premises the officers observed an entertainer Linda Sue Richardson dancing. In the course of the dancing Richardson inserted a plastic straw into the g-string costume which she was wearing, and simulated masturbation. The officers also observed Richardson, in the course of the dance, take a napkin and rub it on her vagina, and then roll the napkin up and place it in her mouth and simulate oral sexual activity. At the time the officers were in the licensed premises and on the same date, they observed the dancing of a second female entertainer, one Gayle Jeanette Landrum. They saw Landrum place her hand in her g-string costume and simulate masturbation. Landrum also fondled her breasts in a provocative manner. The exact location within the licensed premises where the above described dancing took place is not specifically known, beyond the fact that one dancer was dancing on a large stage behind the bar and the other dancer was dancing on a smaller stage which was placed in the area where patrons would be seated. The dancing took place at a time that customers were in the licensed premises. The two women were arrested and charged with lewd and lascivious conduct and both were convicted of a violation of s. 847.011, F.S. On the date of the arrest of the two dancers, Carol Alcorn was in charge of the licensed premises in the capacity of manager. Alcorn was also serving as bartender on that occasion. The two female entertainers were employed on January 25, 1977 for compensation by the Respondent, Mardi Gras De Tampa, Inc. The two women were operating under the specific instructions of the Respondent on the subject of their conduct while performing. These instructions were generally to not commit acts which would be considered lewd and lascivious within the meaning of the "Florida Law". In addition the dancers were not to touch themselves or fondle themselves or let customers touch them. The women had been told these basic rules in individual conferences. Another policy which the management had, was to call the performers attention to any improper conduct, and dismiss performer if the performer failed to abide by management rules on the subject of proper conduct. In fact, the Respondent's management employees had corrected dancers before. On the occasion when the officers observed the conduct of Richardson and Landrum, it is unclear what period of time was encompassed to achieve the acts described. In the normal course of events the women would have been dancing for the duration of three records, which would be approximately nine minutes. They would have been dancing as a part of a group of six to eight dancers. The bartender would have been able to see any dancer performing on the stage behind the bar or performing on the stage in the area where the patrons were seated. The view of the two stages from the location the bartender would have behind the bar would have been unobstructed. Whether or not the bartender, Carol Alcorn, actually saw the subject dancing of Richardson and Landrum can not be determined from the facts offered in the hearing. What was shown was that the bartender went to the restroom, which was away from the bar itself, and was confronted by the two officers when leaving the restroom area. This confrontation was for the purposes of complaining about the activities the officers had observed on the apart of Richardson and Landrum. The acts which took place in the course of the dancing, by Linda Sue Richardson and Gayle Jeanette Landrum, constitute lewd and lascivious conduct within the meaning of s. 847.011, F.S. From the facts presented in the course of the hearing, it has not been shown that the Respondent, Mardi Gras De Tampa, Inc., has violated s. 561.29, F.S., as a result of the acts of their employees Linda Sue Richardson and Gayle Jeanette Landrum. The facts do not show that the Respondent is responsible for those acts of the employees either through its own negligence, intentional wrongdoing, or lack of diligence.
Recommendation It is recommended that the charge filed by the Petitioner against the license of Mardi Gras De Tampa, Inc., t/a Tigers Den a Go Go, under license no. 39-0246, series 4-COP, as set forth above, be dismissed. DONE AND ENTERED this 28th day of July, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Tom Whitaker, Esquire Division of Beverage 403 North Morgan Street 725 South Bronough Street Tampa, Florida 33602 Tallahassee, Florida 32304
The Issue Whether the Respondent's real estate license in Florida should be disciplined as a result of his criminal conviction of crimes involving moral turpitude in violation of Section 475.25(1)(f), Florida Statutes.
Findings Of Fact At all times material to these proceedings, Respondent Rosenberg has been licensed as a real estate broker in Florida, and has held license number 0308769. The last license issued was as a broker and was sent in care of Monopoly Realty, Inc., 944 Country Club Boulevard, Cape Coral, Florida. On April 7, 1989, the Respondent entered guilty pleas to the eleven criminal charges set forth in an Information filed in Case No. 89-3310-CF10, Brevard County, Florida. Counts I-IV of the Information charged the Respondent with the crimes of unlawful and knowing possession of four different motion pictures containing sexual conduct by children. Counts V-XI of the Information charged the Respondent with possession of seven additional motion pictures or videotapes containing obscene materials. It was alleged that the Respondent intended to sell, show or distribute these videotapes. Upon acceptance of the pleas, the judge found the Respondent guilty of Counts V-VII and withheld adjudication on all other counts. The Respondent was sentenced to two years of community control followed by three years probation on Counts I-IV. In addition, he received six months probation to run concurrently with the first sentence on all other counts. Other conditions of the community control portion of the sentence required the Respondent to pay $774.50 in investigative costs to the Organized Crime Division, continue in sexual therapy, and required that he not accept employment in video stores or any establishment where adult magazines or videos are sold. After his pleas were accepted by the Court, the Respondent notified the Florida Real Estate Commission of the court's judgment and sentence by letter on May 3, 1989. Mitigation In mitigation, the Hearing Officer finds that the Respondent has never had a complaint filed against him during the eleven years he has been licensed and actively engaged in the sale of real estate in Florida. The Respondent realizes that his interest in pornography is prurient, and he is sincerely involved in the sexual therapeutic program. The Respondent has a supportive family which is anxious to assist him in overcoming his problem. The charges filed against the Respondent in the Information were based upon one criminal episode which involved eleven pornographic films or tapes.
Recommendation Based upon the foregoing, and having reviewed the mitigating factors presented by Respondent at hearing, it is recommended: That Respondent David Rosenberg be found guilty of having violated Section 475.25(1)(f), Florida Statutes, as set forth in the Administrative Complaint. That the Respondent's real estate broker's license be suspended for a period of four years in accordance with the guidelines set forth in Rule 21V- 24.001, Florida Administrative Code. This recommendation aligns itself with the sentence of the circuit court judge who has given Respondent the opportunity to be placed in a community control program with probation over a five-year period in order to receive sexual therapy and repay his debt to society for having committed crimes which violate Florida's obscenity laws. As one year of the sentence imposed by the court has passed, the recommended four-year suspension would run concurrently with the remaining term of the Respondent's sentence. RECOMMENDED this 7th day of May, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5858 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #2 and #3. Rejected. Irrelevant. Respondent's proposed findings of fact are addressed as follows: Rejected. Improper legal conclusion and irrelevant. Rejected. Immaterial and Irrelevant. Rejected. Irrelevant. A collateral attack on Respondent's plea is improper as this is not the proper forum for such review. Rejected. Irrelevant. Accept that adjudication was withheld on all but Counts V- VIII in the Information. See HO #3. Accept that Respondent will be receiving therapy. See HO #3. Accept that Respondent has no prior arrests. The state of Respondent's future record once he successfully completes his sentence is irrelevant and is rejected as irrelevant. The assertion that child pornography is a victimless crime is rejected as contrary to fact. Accept subparagraphs 6(a) - (d). See HO #4 and HO #5. Reject subparagraph 6(e). Contrary to fact. See HO #2 and HO #3. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1990 Orlando, Florida 32801 Peter L. Rosenberg Qualified Representative 1224 Southeast 23rd Place Cape Coral, Florida 33990 Darlene F. Keller, Executive Director DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The abuse incident central to the underlying proceeding in this case was a sexual assault against a female child by an older male child, both of whom were residents at the Lee County Children's Home where L. T. was employed as a caregiver. The abuse occurred while the residents were on a trip to the beach with other residents of the facility. Three adults, one male and two female, accompanied a total of 19 residents to the beach. The residents did not remain together once at the beach. The males residents went with the male adult and the females remained with the females. A series of events resulted in L. T. being the only one of the three who was able to visually locate the residents. She became aware that not all the residents were accounted for and began to search for the missing children. She discovered that a sexual assault had taken place. Subsequent to the abuse incident, the DHRS received an abuse report related to the matter. The investigative report in this matter incorrectly indicates that an investigation was performed by Michael B. Gregory. Another investigator, Mike Hally, investigated the incident, and apparently forwarded the materials to his supervisor for review prior to closing the case. A substantial period of time passed without DHRS action on the matter, during which time Mr. Hally transferred to another DHRS job. Agency officials eventually decided to classify the case as "proposed confirmed." Because Mr. Hally was, for technical reasons, unable to close out the case file, the matter was brought to Mr. Gregory by Jane Pigott, a DHRS official, who directed Mr. Gregory to close the case as "proposed confirmed." L. T. was apparently notified of the matter and requested that the report be expunged. By letter dated November 21, 1991, the Department of Health and Rehabilitative Services informed Respondent L. T. (through counsel) that her request to expunge the report of abuse was denied. The letter stated, "[o]n August 20, 1990, the department received a report that your client failed to ensure proper supervision resulting in injury to a child. A child protective investigation took place and was classified as proposed confirmed. As a result of your request, the record was reviewed and determined to be classified correctly." Respondent L. T. requested an administrative hearing to challenge the classification of the report. The Department forwarded the case to the Division of Administrative Hearings, which scheduled and noticed the proceeding. At hearing, the evidence failed to establish that the injury to a child was a result of any failure by L. T. to ensure proper supervision of the child.
The Issue The issue to be resolved is whether Respondent, Dr. Christopher Carter, M.D. (“Respondent” or “Dr. Carter”), was convicted of, pled guilty, or pled nolo contendere to a crime directly related to the practice or the ability to practice medicine, in violation of section 456.072(1)(c), Florida Statutes (2009), and if so, what penalty should be imposed?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of health care professionals pursuant to section 20.43 and chapter 456, Florida Statutes. The Board of Medicine is the professional licensing board charged with final agency action with respect to discipline against medical doctors pursuant to chapter 458, Florida Statutes. At all times material to the allegations in the Second Amended Administrative Complaint, Respondent was licensed as a physician by the State of Florida, having been issued license number ME 82836. On April 19, 2010, the United States Attorney for the Northern District of Florida filed a one-count Information against Respondent, alleging that Respondent knowingly possessed material containing images of child pornography as defined in 18 U.S.C. § 2256(8)(A), namely, “visual depictions of sexually explicit conduct, the production of which involved the use of minors engaging in sexually explicit conduct, having been mailed, shipped and transported using any means . . .” in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). The case was filed in the Gainesville Division of the United States District Court, Northern District of Florida, and docketed as Case No. 1:10CR19 MMP/AK. On May 14, 2012, a Plea and Cooperation Agreement (“Plea Agreement”) was filed wherein Respondent agreed to plead guilty to the charge recited in the Information. He also agreed to cooperate “fully and truthfully with the United States Attorney and his designated representatives . . . including providing complete and truthful debriefings and testimony at grand jury, trial, and as otherwise requested, involving any matter under investigation.” As part of the Plea Agreement, Respondent was advised that he would be required to register as a Sex Offender and keep the registration current in the state of his residence, the location of his employment, and if a student, the location of his school. The Plea Agreement also specifies that, subject to provisions not at issue in this proceeding, any statements, agreements or other evidence provided by Respondent may be used against him in the federal proceeding or any other action. The Statement of Facts filed with the Plea Agreement stated the following: This case is the result of a Peer-to- Peer file sharing investigation initiated by the North Florida Internet Crimes Against Children (ICAC) Task Force. On September 11, 2009, special software was utilized to locate computers sharing images of child pornography utilizing the Gnutella network. One computer offering to participate in the distribution of child pornography had an Internet Protocol (IP) address which corresponded with an Internet Service Provider (ISP) in Gainesville, Florida. A publicly available listing of the files offered for distribution by the computer at the IP address was reviewed. They included sexually explicit file names describing sexual acts with children. In addition to the file names, the unique SHA values were reviewed and confirmed that the files had previously been identified as depicting child pornography. . . .The files identified by their SHA values were examined and observed to be sexually explicit images of minor children engaged in sexual acts. A check of the IP address offering to distribute child pornography showed the same IP had been recorded one hundred and forty- two times between March 5, 2009, and October 28, 2009, offering different child pornography files for distribution. An Internet search for the origin of the IP address found it to be issued to a cable modem subscriber with Bellsouth Internet of Atlanta, Georgia. A subpoena sent to them revealed that the IP had been assigned to an account in Gainesville, Florida. The account contained information identifying the account holder at a residence located at 5818 NW 45th Drive Gainesville, FL 32653. The account holder was identified as CHRISTOPHER SCOTT CARTER. A federal search warrant was obtained for the CARTER residence. Six known video files depicting child pornography were included in the search warrant and identified by their file titles and SHA hash values. The names of the files are included in the Statement of Facts filed in conjunction with the Plea Agreement and need not be repeated here. Suffice it to say that the file titles indicate that the images are of children from one to ten years old portrayed in sexual activity, and some included violent imagery. The Statement of Facts also indicated that computer equipment seized from Respondent’s residence included a Compac Presario desktop computer belonging to Respondent, upon which the file sharing software was confirmed. The forensic examiner was able to locate the SHA values and associated file paths corresponding to the six videos described in the search warrant. On July 21, 2010, an Amended Judgment was filed, accepting Respondent’s guilty plea and adjudicating him of one count of possession of child pornography. Respondent was sentenced to prison for a period of 48 months, followed by supervised release for life. The sentence requires that Respondent register as a sex offender with the appropriate agency in the state where he lives, works, or is a student. Standard Conditions of Supervision include the following: 7. the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except a prescribed by a physician: * * * 9. the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer. * * * 13. as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement. The Additional Conditions of Supervised Release imposed by the court include the following: The defendant shall have no unsupervised contact with minor children, except the defendant's own child. The defendant shall not possess any pornographic material, adult or child. The defendant shall relinquish his pilot's license, nor shall he obtain a new pilot's license without the Court's approval. The defendant shall notify any employer of the offense of conviction. The defendant shall not occupy a vocation or volunteer in a position in which he had direct contact with minor children. * * * The defendant shall participate in a program of mental health counseling to include sex offender counseling. The defendant shall register with the state sex offender registration agency in any state where the defendant resides, is employed, carries a vocation, or is a student, as directed by the supervising probation officer. The probation officer will provide state officials with any and all information required by the state sex offender registration agency and may direct the defendant to report to that agency personally for additional processing such as photographing and fingerprinting. * * * The defendant shall not be in the presence of minors, nor have any contact in any form, direct or indirect, including but not limited to, personally, by computer, telephone, letter or through another person, with children under the age of eighteen, without the approval of the probation officer. Any contact must be reported immediately to the probation officer. Respondent reported his plea, as required, to the Board of Medicine. The letter written by Dr. Carter is lengthy and need not be repeated in its entirety. However, Dr. Carter's remarks include the following: I downloaded these horrendous images thinking that my viewing them was invisible and innocuous. However, I now appreciate a larger perspective: that after these perverse images are produced, they circulate in hyperspace indefinitely, so that the victimization is twofold. Following their original exploitation, the victims of child pornography are haunted by the knowledge that these pictures will persist on the internet, to be downloaded and seen by anyone, indefinitely. While our ability to remove the images is limited, we do have the ability to condemn them, to reject viewing them, and to refuse to possess them. This I failed to do. With an appreciation of the coercion involved in producing these horrible images, and the emotional injury of both the production and of having the images circulating indefinitely, I regret having viewed child pornography and I more deeply affirm my decision to avoid this revolting material. Respondent asserted, both in his letter and in his hearing, that he should be able to continue practicing medicine for three reasons: 1) that no activity associated with child pornography occurred at work or was associated in any way with medical practice; 2) that the offense was limited to viewing internet images in his home, and no “hands-on” offense or production or distribution of material was alleged or occurred; and 3) his crime does not endanger patient safety because he does not treat children. The undersigned notes that Respondent indicates in his letter that “some time before a search warrant was served at my residence, I had independently discontinued my use of child pornography and had deleted all such files from my computer.” The last activity involving Dr. Carter’s IP address was one week before the issuance of the search warrant. However, as stated by the Department’s expert witness, Dr. Francisco Calimano, the qualities essential to the practice of medicine include sound judgment and respect for the welfare of others. Respondent’s behavior in possessing and viewing child pornography shows total disregard for one of the most vulnerable segments of our population, and represents the antithesis of what a physician should be. Dr. Calimano’s view of the level of poor judgment exhibited did not change with the knowledge that Dr. Carter had decided to delete the pornographic files of his own accord. The undersigned shares his view. In addition to the serious judgment lapse and breach of public trust involved in Respondent’s behavior, the practical ramifications of the terms of Respondent’s supervised release make the practice of medicine problematic if not impossible. One of those limitations is that Respondent have no contact with children under 18 without a probation officer’s approval. While Dr. Carter indicates that his practice is limited to adults, that factor does not erase the presence of children from the practice setting. As stated by Dr. Calimano, children are brought into hospitals, waiting rooms, intensive care units, and similar practice settings, as patients, visitors, or dependants of patients or visitors. The same can be said of convicted felons. Likewise, the ability to practice without contact with controlled substances is virtually non-existent. In addition, upon his release from prison, Respondent is required to register as a sex offender wherever he lives or works. This status undermines the trust a member of the general public would have in the judgment and integrity of the care giver. Respondent’s conviction has effectively imposed serious practical impediments related to his continued ability to continue practicing medicine, without risking a violation of the terms of his lifetime supervised release. It is found that the crime of possession of child pornography is related to the practice or the ability to practice medicine. Respondent testified that prior to his arrest, he had made the conscious decision to stop viewing child pornography and had deleted the files from his computer. He also testified that he sought treatment and continues to do so. These factors, however, do not go to the actual commission of the offensive acts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding that Respondent has violated section 456.072(1)(c), Florida Statutes, and revoking his license to practice medicine. DONE AND ENTERED this 26th day of November, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2012. COPIES FURNISHED: Laura L. Glenn, Esquire Department of Health, Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Christopher Carter, M.D., #20674-017 Federal Correctional Institution Englewood 9595 West Quincy Avenue Littleton, Colorado 80123 Joy Tootle, Executive Director Department of Health Board of Medicine 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent was certified as a law enforcement officer, holding certificate number 102208. He was certified on August 5, 1985. Respondent was employed as a deputy sheriff with the Osceola County Sheriff's Office at the time of this incident. On January 11, 1993, a woman parked her car at a convenience store. While she was in the store purchasing some items, Respondent placed a Polaroid photograph of his naked erect penis on the ground beside the driver's door of the car. The female was unknown to Respondent. She was shocked and disgusted by her discovery of the photograph. After being given his Miranda rights, Respondent admitted to an investigating detective that he had placed the photograph beside the car. He claimed that he had been under a lot of stress in his personal life at the time. Respondent later pleaded no contest to one count of a misdemeanor offense of distributing obscene material. The court withhold adjudication and placed him on probation for one year.
Recommendation It is RECOMMENDED That the Criminal Justice Standards and Training Commission enter a final order suspending Respondent's certificate for two years and placing it on probation for a period of eight years, starting with the end of the suspension. The conditions of probation are that, first, Respondent produce satisfactory evidence from a licensed health care professional reasonably satisfactory to Petitioner that he is not likely to repeat this behavior and, second, that he continue counseling at the frequency and for the period of time recommended by the licensed health care professional. ENTERED on October 10, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on October 10, 1996. COPIES FURNISHED: Amy J. Bardill Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Randy J. Miller 1262 N 550 W Kokomo, Indiana 46901 A. Leon Lowry, II, Director Florida Department of Law Enforcement Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent violated Section 760.10(1), Florida Statutes, by allowing Petitioner to be sexually harassed by her immediate supervisor.
Findings Of Fact Respondent is an employer within the meaning of Sections 760.01-760.11, Florida Statutes, Florida Civil Rights Act of 1992, as amended. Respondent manufactures rubber parts for housewares, aircraft, and the automotive industry. Respondent typically employs an untrained workforce then provides its employees with on-the-job training. Respondent experiences a high turnover in entry level jobs. Petitioner began working for Respondent on or about November 15, 1995. Her immediate supervisor was Walter Tate. Part of Mr. Tate's job was to train Petitioner how to operate a rubber injection machine. There is no persuasive evidence that Mr. Tate ever touched Petitioner or spoke to her in a sexually inappropriate manner. On December 6, 1995, Petitioner's hand was injured at work. This injury occurred when another employee drove a forklift into the platform where Petitioner was working. Mr. Tate did not blame Petitioner for the accident. He did not use the accident as a means to sexually discriminate against Petitioner. On or about February 16, 1996, Petitioner's machine caused a shut down in production. The machine broke down when someone placed a metal bar in the feed hole. The metal bar broke off between the machine's feed hole and its extruder, preventing the rubber from passing through. The machine was a silicon extruder; this type of machine is usually turned off when the designated operator takes a break. Based on a good faith belief that Petitioner was responsible for damage to her machine, Mr. Tate gave Petitioner a verbal warning for using the metal bar instead of a plastic one. Mr. Tate advised Petitioner that the next time she would be given a written warning. There is no credible evidence that Mr. Tate had any hidden agenda when he reprimanded Petitioner. Petitioner became visibly upset about the verbal reprimand and cursed Mr. Tate. Subsequently, Petitioner signed an employee warning report, indicating that she disagreed with the verbal warning but gave no reasons for her disagreement. Shortly thereafter, Petitioner met with Respondent's plant manager, Steve Wieczorek, and second-shift plant superintendent, Robbie Misenheimer. Petitioner complained that she did not like Mr. Tate telling her what to do because she already knew her job. Petitioner also complained that she did not like Mr. Tate's use of profanity. The greater weight of the evidence indicates that Petitioner never complained to Respondent about any form of sexual harassment or discrimination by Mr. Tate during this or any other meeting. During the meeting, Mr. Wieczorek took handwritten notes of Petitioner's complaints. According to Petitioner, she signed these notes before she left the meeting. Shortly thereafter, Mr. Wieczorek typed the notes in accordance with his customary procedure. Mr. Wieczorek and Mr. Misenheimer signed the typed notes before placing them in Petitioner's personnel file. Petitioner did not sign the typed notes. The location of the handwritten notes was not established during the hearing. After the meeting, Mr. Wieczorek directed Mr. Misenheimer to investigate Petitioner's complaints. In accordance with that directive, Mr. Misenheimer talked to Mr. Tate and several of Petitioner's co-workers. Mr. Misenheimer concluded that there was no merit to Petitioner's complaints that Mr. Tate was treating her unfairly. Nevertheless, Mr. Misenheimer continued to check with Petitioner personally and to observe Mr. Tate for several days to ensure that Petitioner was not being mistreated. On February 27, 1996, Petitioner walked out of the plant, voluntarily leaving her workstation in the middle of her shift. Petitioner did not advise Mr. Tate or any other supervisor of her reason for leaving the work site. There is no persuasive evidence that Mr. Tate threatened Petitioner for turning him in before she abandoned her workstation. After leaving the plant, Petitioner did not call Respondent for three days to explain why she had not returned to work. Respondent did not attempt to contact Petitioner during this time. In accordance with the company's personnel policies, Respondent terminated Petitioner's employment on March 1, 1996. At all times material to this proceeding, Respondent's policy was that sexual harassment was not to be tolerated. This policy was communicated to employees in group meetings. Petitioner admits that she received instruction on the procedure for complaining about sexual discrimination when she began working for Respondent. However, she could not remember whether she received the information in a training session or in a printed form. Respondent posted information in the employee break room about state and federal laws prohibiting discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2000. COPIES FURNISHED: Bruce Committe, Esquire 17 South Palafox Place, Suite 322 Pensacola, Florida 32501 Heather Fischer Lindsay, Esquire Gordon, Silberman, Wiggins & Childs 1400 South Trust Tower Birmingham, Alabama 35203 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated section 456.072(1)(c), Florida Statutes, as alleged in the Administrative Complaint; and if so, what is the appropriate penalty.
Findings Of Fact The following Findings of Fact are based on the testimony and documentary evidence presented at the final hearing, and the entire record of this proceeding. Parties The Department is the state agency charged with licensing and regulation of healthcare professionals pursuant to section 20.43 and chapter 456, Florida Statutes. The Board of Psychology is the professional licensing board charged with final agency action related to discipline against psychologists pursuant to chapter 490, Florida Statutes. At all times material to the allegations in the Administrative Complaint, Respondent was licensed as a psychologist by the State of Florida, having been issued license number PY 9171. Underlying Criminal Case On or about April 26, 2017, two images of suspected child pornography were uploaded to the cloud storage associated with mobile phone number 321-890-7266. That event prompted Synchronoss Technologies to report this information to the National Center for Missing and Exploited Children (“NCMEC”)1. Synchronoss Technologies provides cloud and digital storage for Verizon cell phone subscribers. On May 9, 2017, NCMEC forwarded that 1 NCMEC is an organization that maintains databases of material that has been identified through law enforcement as child abuse material. It assists law enforcement and other agencies with locating missing children. information as a CyberTip to Brevard County Sheriff’s Office (“BCSO”). The CyberTip included the suspected pornographic images. The BCSO Special Victim’s Unit, which investigates online exploitation and abuse of children, investigated the case. Agent Sorokin, a law enforcement officer with extensive experience investigating crimes involving child exploitation and child pornography, was assigned to investigate the CyberTip. Agent Sorokin reviewed the two images provided with the CyberTip and confirmed they were sexually explicit pornographic images depicting minor girls between the ages of 11 and 13 with exposed genitalia.2 Agent Sorokin then issued a subpoena to Verizon and Synchronoss Technologies for the mobile phone number, 321-890-7266, to identify the subscriber of the phone that uploaded the pornographic images. Verizon identified the account subscriber as Respondent, and provided Respondent’s address of 1323 Brumpton Place, Rockledge, Florida. On April 13, 2018, Agent Sorokin conducted an interview with Respondent at his then-office, located at the VA clinic. During that interview, post-Miranda, Respondent admitted that he uploaded the images of the girls using the application BitTorrent and subsequently deleted them. He then initialed the images signifying that he recognized them as the images he uploaded.3 Respondent wrote an apology letter in which, among other things, he stated, “I am sorry I viewed anything and I am sorry to you and your families. You did not do anything wrong you were not at fault.” 2 Child pornography is defined as any image depicting a minor engaged in sexual conduct. § 847.001(3), Fla. Stat. Sexual conduct is defined as actual … lewd exhibition of the genitals. §§ 827.01(1)(h) and 847.001(16), Fla. Stat. 3 Respondent signed the card acknowledging he understood his Miranda rights. He then made a series of voluntary admissions to Agent Sorokin. For instance, when asked how he recognized the images, Respondent stated that the images were on his phone; and when asked the ages of the girls in the images, Respondent stated the girls were 11 or 12. With Respondent’s consent, Agent Sorokin took possession of Respondent’s cell phone. After obtaining a search warrant, BCSO investigators searched his phone. A subsequent forensic analysis of the phone revealed that the phone contained a web history with search terms including “innocent_girl2 at Chaturbate: full naked,” and “seventeen-excuse me 13-Pornhub.com.” The web bookmarks included a URL address titled “Child Psychologist Salary and Job Information.” The search did not reveal any pornographic images of children on Respondent’s phone as he had deleted the images. On June 21, 2018, pursuant to an arrest warrant, Respondent was arrested for two counts of possession of child pornography. On August 28, 2018, the State Attorney for the Eighteenth Judicial Circuit filed a two-count Information in Case No. 18-CF-033336 against Respondent, alleging Respondent contributed to the delinquency or dependency of a minor, namely allowing and/or encouraging the sexual exploitation of a child. On September 21, 2018, Respondent pled nolo contendere to two counts of contributing to the delinquency or dependency of a minor, in violation of section 827.04(1)(a), Florida Statutes, with adjudication withheld.4 He was sentenced to two years of probation, one year for each count. Although Respondent was not required to register as a sex offender, he was required to undergo sex offender counseling. Specifically, the sentence required that Respondent not have contact or overnight visits with children under age 18. Additional conditions of supervision included: no working or volunteering at any place where children under age 18 congregate; no viewing, accessing, owning, or possessing any obscene, pornographic, or 4 The Administrative Complaint alleged “On or about September 21, 2018, Respondent plead nolo contendere to one count of Contribute to Delinquent Dependency of Minor or Child, in the County Court, in and for Brevard County, Florida, Case No.: 2018-MM-33336.” The reference to one count instead of two counts appears to be a typographical error as the overwhelming evidence in the record reflects Respondent was charged with two counts of the crime. The typographical error does not impact the outcome of this matter. sexually stimulating visual or auditory material; active participation and successful completion of a sexual offense treatment program; and continued psychiatric treatment, including medication management and therapy. Respondent completed the terms of his sentence and probation early. There is no dispute that Respondent pled nolo contendere to a criminal offense. The question remains whether that crime relates to the practice of psychology. The Department’s expert, Dr. Carolyn Stimel, answered this question in the affirmative. Expert Testimony Dr. Stimel, a practicing psychologist, has been licensed in the state of Florida for more than 30 years. Dr. Stimel has been board certified by the American Board of Professional Psychology and Forensic Psychology since 1989. Forensic psychology is the intersection between psychology and criminal legal matters. In addition to her private practice, Dr. Stimel works with the Jimmy Ryce program for sexually violent predators. Dr. Stimel’s responsibilities working with the Jimmy Ryce program includes assessing whether a person should be tried as a sexually violent predator. Through her work with the program, she has evaluated and treated sex offenders for criminal cases. In preparation for her testimony, Dr. Stimel relied upon the pertinent evaluations, interview of Respondent by Agent Sorokin, criminal records, and relevant depositions. More importantly, she also relied upon her observation of the full hearing to formulate her opinion. Dr. Stimel opined that downloading child pornography as related to the practice of psychology requires trust, good judgment and integrity, ability to establish appropriate boundaries, ability to control impulses, and ability to behave appropriately and responsibly. Dr. Stimel’s opinion of Respondent’s poor judgment did not change when she learned that Respondent had voluntarily deleted the pornographic images from his phone. In addition to the serious judgment lapse, Respondent’s behavior was a significant breach of public trust. As stated by Dr. Stimel, the qualities essential to the practice of psychology include good judgment and trustworthiness. Respondent’s poor judgment and an inability to be boundary-observant poses a high risk of Respondent engaging in further sexual offenses involving children. Respondent’s viewing child pornography, even if for a brief moment, demonstrates a disregard for a vulnerable population of society. Respondent contends that he should be able to continue practicing psychology because he does not pose a threat to children. To support his argument that he does not pose a threat to children, Respondent offered the testimony of Dr. Duncan Bowen, a licensed mental health counselor. On October 9, 2018, Dr. Bowen performed a risk assessment of Respondent and concluded that Respondent does not pose a risk of emotional or physical harm to children. On April 8, 2020, Dr. Bowen performed a psychosexual evaluation of Respondent and opined that Respondent may return to the practice of psychology safely. While Dr. Bowen has conducted evaluations to determine the ability of professionals to return to work, namely law enforcement, aviators, and department of defense personnel, he has not conducted evaluations of healthcare professionals. Moreover, given that Dr. Bowen is not a licensed psychologist, Dr. Bowen could not offer an opinion on whether Respondent’s crime(s) relates to the practice of psychology. Respondent saw Dr. James Hunt for psychiatric sexual offender treatment, which was ordered by the court. Dr. Hunt was also Respondent’s treating psychiatrist before the court ordered treatment. Respondent admitted to Dr. Hunt that he looked at child pornography and indicated that he committed the act because of obsessive compulsive disorder (“OCD”). Dr. Hunt ultimately concluded that Respondent had a compulsion to check the website depicting child pornography as a symptom of OCD and prescribed Luvox to treat the compulsive behaviors. Dr. Hunt testified that Respondent should remain on Luvox indefinitely; otherwise, he would risk viewing child pornography again. Testimony of Lay Witnesses While Respondent contends that he should still be permitted to continue to practice psychology because he only treats adults; that factor does not erase the presence of children from the practice setting. For instance, Dr. Stewart, Respondent’s employer and a licensed clinical social worker, treats patients as young as five years old. As a result, there are times children or adolescents may be in the waiting room before their appointment. In addition, a psychology license is a general license that is not restricted to any specific group of people. The licensee may see children or may be retained to see a family that includes children. Although, Dr. Stewart testified he had no concerns about the safety of patients, he installed a security system after Respondent began working at his office. He also testified that he believed Respondent could continue to practice psychology safely. However, Dr. Stewart is not a licensed psychologist so his opinion does not have much weight, if any, on Respondent’s ability to practice safely. In support of Respondent, Dr. Stewart testified that Respondent is well thought of in the community and is gentle with patients. As expected, Respondent’s parents, Bruce and Helene Levinsky, also offered support. Mrs. Levinsky described her son as being compassionate and empathetic toward others. She also testified that he would not be a danger to children. Respondent’s father, Bruce Levinsky, joined his wife in support of their son by testifying that he is a caring psychologist. Allegations of Coerced Confession At hearing, Respondent testified that his confession was coerced by Agent Sorokin, and he actually did not download child pornography. Respondent testified that Agent Sorokin coerced him to give a false confession through the use of intimidating tactics. Agent Sorokin did not testify in person and, thus, was unable to defend himself against Respondent’s claims at the hearing. However, the undersigned carefully observed the demeanor of Respondent as he testified and carefully reviewed the record regarding all aspects of this case, including the circumstances surrounding the alleged false confession. Based on the circumstances, namely the recorded interview; identifying information associating Respondent with the phone used to upload the images; Respondent’s motivation to cast the events in a particular light;5 and the number of admissions Respondent made to others besides Agent Sorokin, it is determined that Respondent’s claim of a coerced confession is not supported by the record.6 Likewise, the undersigned finds Respondent’s denial that he downloaded child pornography is not credible. Respondent’s denial was not credited based on more credible evidence discovered during the criminal investigation. Furthermore, his credibility was diminished by deceptive testimony at hearing. For example, Respondent testified that he was not aware that he had a right to an attorney during a criminal interrogation and claimed that Agent Sorokin did not read him his Miranda rights. When confronted with the transcript of the interview, he acknowledged that Agent Sorokin read his Miranda rights. The undersigned’s review of the transcript and audio recording revealed that the agent read Miranda rights to Respondent and Respondent acknowledged his understanding of those rights verbally and in writing by initialing the card with Miranda warnings. 5 Dr. Stimel testified that most people accused of a sexual offense attempt to minimize, deny, or rationalize their actions. 6 In his recorded statement, he verbally admitted to downloading and viewing the pornographic images of two prepubescent girls. He wrote an open letter apologizing to the persons depicted in the images. During his visits with Dr. Hunt, he admitted that he viewed the images due to OCD and there was no reference to him being coerced into the statement until a year later. For instance, on July 11, 2018, Respondent reported to Dr. Hunt that he had to watch [child pornography] because of his OCD. In another example, Respondent admitted to Dr. Bowen and Dr. Hunt, who were tasked with evaluating him, that he downloaded and viewed child pornography, and he later testified at hearing that he did not provide truthful information to those evaluators. Despite the Respondent’s contention that Agent Sorokin coerced him to confess, the alleged false confession has not been considered with respect to whether Respondent committed the violations alleged in the Administrative Complaint. The undersigned is charged with assessing whether the crime to which Respondent pled nolo contendere relates to the practice of psychology, and not to try the underlying criminal case (nor does the Division have jurisdiction to reconsider the findings of those criminal allegations in this proceeding). The evidence of record contains clear and convincing evidence that Respondent’s crime relates to the practice of psychology. In addition to the other findings herein, the undersigned finds Respondent did not access the two images while physically at work and the images did not depict a known patient, or family member of a patient. Respondent’s license has never been disciplined. Ultimate Findings of Fact Dr. Stimel credibly opined that the crime of contributing to the delinquency of a minor relates to the practice of psychology because it demonstrates that the psychologist lacks good judgment and trustworthiness, and lacks an inability to be boundary-observant. The undersigned also finds, by clear and convincing evidence, that Respondent’s plea of nolo contendere to two counts of contributing to the delinquency of a minor by downloading child pornography, is related to the practice of psychology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Psychology enter a Final Order finding that Respondent violated section 456.072(1)(c), Florida Statutes, and revoking his license to practice psychology. DONE AND ENTERED this 23rd day of October, 2020, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 23rd day of October, 2020. COPIES FURNISHED: Christina Arzillo Shideler, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Jonathan Rose, Esquire Jonathan Rose, P.A. 201 South Orange Avenue, Suite 1017 Orlando, Florida 32801 (eServed) Ryan Sandy, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Allen Hall, Executive Director Board of Psychology Department of Health 4052 Bald Cypress Way, Bin C-05 Tallahassee, Florida 32399 (eServed) Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
