The Issue The issues in this case are whether Respondent, an osteopathic physician who had a year-long consensual affair with one of his patients, committed sexual misconduct in the practice of osteopathic medicine; and if so, whether Petitioner should impose discipline on Respondent's license within the applicable penalty guidelines or take some other action.
Findings Of Fact Respondent David Simon, D.O. ("Simon"), is a family practitioner who was, at all times relevant to this case, licensed as an osteopathic physician in the state of Florida. His office was located in Palm Beach County, where he practiced medicine from 1985 through the events at issue and beyond, until at least the date of the final hearing. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed osteopathic physicians such as Simon. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Osteopathic Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. In May 2005, a 30-something year-old woman named C.K. became a regular patient of Simon's. As C.K.'s primary care physician from 2005 until the end of 2011, Simon treated C.K. for a variety of physical and psychological disorders. The nature and quality of Simon's medical care of C.K. are not in dispute, the Department having neither alleged nor proved that Simon's treatment of C.K. ever fell below the applicable standard of care, or that Simon's medical records failed to justify any course of treatment he undertook for her benefit. In or around November 2010, while their otherwise unremarkable physician-patient relationship remained intact, Simon and C.K. entered into a mutually consensual sexual relationship. This affair had its genesis in a discussion between Simon and C.K. that occurred on October 12, 2010, during an office visit. While being seen that day, C.K. expressed concern about having been exposed recently to sexually transmitted diseases as a result of experiences which she not only related in some detail to Simon, but also corroborated with photographic evidence stored in her cell phone. In view of these disclosures, Simon lost his professional detachment and entered into a flirtatious conversation of a personal, even intimate, nature with C.K. that was outside the scope of his examination or treatment of C.K. as a patient. C.K. was a willing participant in the non-clinical sexual banter which ensued. Some days or weeks later (the precise date is unavailable), C.K. stopped by Simon's office on a Friday afternoon after business hours, when Simon was there alone. The two resumed their previous, personal conversation, and C.K. proposed that they have sexual relations with one another, a suggestion to which Simon responded positively. Within weeks afterwards, Simon called C.K., and they made arrangements to meet privately after hours at his office, which they later did, as mentioned above, sometime in November 2010. Beginning with that visit, and continuing for about one year, Simon and C.K. met once or twice a month in Simon's office, alone, to engage in sexual activity.2/ Simon used his cell phone to call or text C.K. to schedule these trysts. C.K. consented to the sexual activity with Simon. She was, however, incapable of giving free, full, and informed consent to such activity with her physician.3/ Because C.K. was, at all relevant times, a competent adult, the undersigned infers that her incapacity to freely give fully informed consent stemmed from Simon's powerful influence over her as a patient of his. C.K. and Simon did not have sexual relations during, or as part of, any visit that C.K. made to Simon's office for the purpose of seeking medical advice or care. In other words, doctor's appointments did not provide occasions, or serve as cover, for intimate rendezvous. There is no persuasive evidence that Simon ever tried to convince C.K. that their sexual encounters would be therapeutic or were somehow part of a course of purported medical treatment or examination. Rather, Simon testified credibly (and it is found) that he and C.K. kept their personal and professional relationships separate and distinct.4/ The Department has made much of the type of sexual acts that Simon and C.K. engaged in. Simon described their behavior, somewhat euphemistically, as "sexually adventurous." The Department, in contrast, has implied that Simon is a paraphiliac or pervert, a contention which the undersigned rejects as not just unsupported, but disproved by the evidence. Although at least some of the sexual conduct in question might fairly be dubbed unconventional, more important is that every interaction between these adults took place in private, within the context of mutual consent. There is, moreover, no clear and convincing proof in this record of sexual violence or aggression, nor any evidence of actual injury, damage, or harm. For reasons that will be discussed, the undersigned has concluded that the details of Simon and C.K.'s sexual encounters are irrelevant to the charges at hand; thus, no additional findings about the specific sexual activities are necessary. Simon's liaison with C.K. lasted until late December 2011, at which time C.K. abruptly terminated the relationship. The evidence fails to establish C.K.'s reasons for doing so. Thus, the circumstances surrounding the end of the affair, of which scant evidence was presented in any event, are irrelevant. In the wake of the break up, Simon's affair with C.K. became a matter of public knowledge, gaining him the sort of notoriety few physicians would covet. Facing personal disaster and professional ruin, Simon sought counseling from Helen Virginia Bush, a specialist in sex therapy who is licensed both as a clinical social worker and as a marriage and family therapist. Ms. Bush counseled Simon on subjects such as professional boundaries and erotic transference. At her urging, Simon attended and successfully completed the PBI Professional Boundaries Course, a nationally recognized program for doctors and others at risk of developing inappropriate personal relationships with patients or clients. Ms. Bush testified credibly that in her opinion, which the undersigned accepts, Simon is unlikely to enter into another sexual relationship with a patient or attempt to do so. Simon shares office space and staff with Mary Scanlon, D.O., a physician who, like Simon, specializes in family medicine. Although she has an independent practice, Dr. Scanlon works in close proximity to Simon, whom she met in 2000 during her residency when Simon was the attending physician. Dr. Scanlon believes Simon to be an excellent physician from whom she has learned much about practicing medicine, and her credible testimony that Simon's patients hold him in high regard and have largely stood by him throughout this scandal is accepted. Dr. Scanlon was an effective character witness for Simon who favorably impressed the undersigned with her earnest and forthright demeanor. That she has elected to continue practicing in the office she shares with Simon despite the public disclosure of Simon's disgraceful dalliance with C.K. (which she in no way condoned or tried to excuse), even though she is not contractually bound to stay there, manifests genuine support of and respect for Simon, and tells the undersigned—— more persuasively than any testimony——that his career is worth saving. This is the first time that any disciplinary action has been taken against Simon's medical license. Ultimate Factual Determinations The evidence establishes, clearly and convincingly, that Simon exercised influence within the patient-physician relationship, albeit probably unwittingly, for purposes of engaging C.K. in sexual activity. This ultimate finding is based in part on an inference which follows from the presumed fact of C.K.'s incapacity to consent to sexual activity with Simon, but also on other circumstances, the most salient of which are that the initial steps toward the affair were taken during a medical examination, and that all of the sexual activity at issue occurred in the doctor's office. It is therefore determined, as a matter of ultimate fact, that Simon is guilty of engaging in sexual misconduct with a patient, as more fully defined in section 459.0141, Florida Statutes, which is a disciplinable offense punishable under section 459.015(1)(l).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a final order finding Simon guilty of committing sexual misconduct with a patient, which is punishable under section 459.015(1)(l), Florida Statutes. Because this is Simon's first such offense, it is further RECOMMENDED that Simon be placed on probation for two years subject to such reasonable terms and conditions as the board deems appropriate, and that an administrative fine of $10,000 be imposed. DONE AND ENTERED this 30th day of July, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2014.
Findings Of Fact On or about May 6, 1993, the Department of Professional Regulation, Board of Medicine (predecessor agency to the Agency for Health Care Administration, Board of Medicine) received a complaint from patient A. L. alleging that the Petitioner had attempted inappropriate sexual contact with the patient during an examination. The complaint was assigned to a DPR investigator who notified the Petitioner that the complaint had been received. The DPR investigator interviewed the patient, obtained the patient's medical records from the Petitioner, and obtained a letter apparently written on the day of the incident from the patient confirming the nature of the complaint. The investigator also obtained information regarding the Petitioner's licensure and confirmation from the patient that he would appear to testify at a hearing if an Administrative Complaint was filed. During the interview and by letter, the patient alleged that during the dermatological examination, the Petitioner had asked the patient if he was single and did he "play" with himself. The patient further alleged that the Petitioner requested that the patient masturbate while the Petitioner watched. The DPR investigator compiled a report including the complete investigative file, relevant discovery, the agency's recommendation and memoranda, and the proposed administrative complaint. The report also advised that, allegedly according to agency legal counsel, other administrative complaints were pending against the Petitioner. The report was forwarded to the members of the Probable Cause Panel (PCP) prior to their meeting on September 14, 1993. The PCP received and reviewed the materials. Present at the September 14 meeting were panel members Edward A. Dauer, M.D., Robert Katims, M.D., and Maribel C. Diblan. Also present were legal counsel and administrative personnel. Upon review of the materials, the PCP unanimously determined that probable cause existed for the filing of the Administrative Complaint. Probable cause was found that the Petitioner violated Section 458.331(1)(j) and (x), Florida Statutes. On September 17, 1993, the agency filed the Administrative Complaint, AHCA Case No. 93-8352, subsequently DOAH Case No. 93-6252. On April 19, 1994, the case was heard in formal hearing before William F. Quattlebaum, Hearing Officer, Division of Administrative Hearings. A Recommended Order was issued, finding that the testimony of the patient lacked credibility and recommending that the Administrative Complaint be dismissed. On August 15, 1994, the agency issued a Final Order adopting the recommended order issued by the hearing officer and dismissing the Administrative Complaint. The Petitioner asserts that the agency investigation was flawed because no dermatological expert was sought to review the case. There is no credible evidence that an expert is required to review allegations of sexual misconduct such as those charged in the administrative complaint filed against Dr. Lattanand. The Petitioner further asserts that alleged inconsistencies in addresses provided by the patient to various entities warranted further review by the agency and apparently suggest a lack of credibility on the complainant's part. Review of the alleged address inconsistencies indicates only that the complainant maintained more than one address. The implication related to credibility is not supported by evidence. Based on the prehearing stipulation of the parties, the following Findings of Fact are made: The Petitioner qualifies as a small business party as defined by section 57.111, Florida Statutes. The Petitioner is the prevailing party. The amount of fees claimed by the Petitioner are reasonable. Special circumstances do not exist which would make an award of costs and fees unjust.
The Issue Whether Respondent violated Sections 491.009(2)(k), and 491.009(2)(s), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all times material, Respondent held a license as a Mental Health Counselor in the State of Florida. Petitioner, through the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, is the state agency that licenses and has regulatory jurisdiction of Clinical Social Workers. Respondent was employed as a counselor by the ACT Corporation (ACT) at the time of the incident that is the basis for this case. ACT operates a residential psychiatric treatment facility at which Respondent was employed. T.J. was a patient in the ACT facility from December 26, 1996 until mid-February, 1997. While at ACT, T.J. was diagnosed with bipolar disorder. T.J. had both group sessions and private sessions with Respondent while she was an in-patient at ACT. The private sessions took place in Respondent's office. Respondent and T.J. talked on the telephone, and he brought her small items, like lip-gloss and gum, that she was not allowed to have. T.J. alleges that the sessions became sexual on or about the second private therapy session. She alleges sexual contact during the in-patient sessions involved kissing and touching, that was consensual. T.J. states that she trusted Respondent and was in love with him. T.J. alleges this sexual relationship with Respondent continued after T.J. left ACT in February. There was never a therapeutic relationship between Respondent and T.J. after T.J. left the hospital. There was never any discussion of a fee arrangement, and no fees were ever paid for counseling sessions. Two days after T.J. left ACT, Respondent picked her up from her home and took her to Sapporo's for dinner and drinks. Following dinner, they went to a bar called the Barracks. T.J. alleges that when Respondent brought T.J. home that night they engaged in oral sex and intercourse. A few days later, T.J. and Respondent met for dinner at the Olive Garden. At the Olive Garden they had dinner and drinks. T.J. alleges that following dinner, Respondent walked T.J. to the van she was driving, they kissed and then had sexual intercourse in the van. On Valentine's Day Respondent came to T.J.'s house for dinner. T.J. lived with her parents. He brought her flowers and a bottle of wine for her parents. A card accompanied the flowers that said: "Sorry! No candy. Hope this will do instead." The envelope said "Traci." Following dinner, they went out to the Flagler Tavern. T.J. alleges that when they returned to T.J.'s house Respondent stayed until early morning and they had oral sex and intercourse. Respondent denies any sexual intimacy with T.J., and asserts that their relationship was one of patient-therapist even after she left ACT. T.J.’s testimony was presented by deposition. There was no opportunity to observe her. She was diagnosed contemporaneously with the events to which she testified with a condition that makes her credibility difficult to assess. Respondent testified at hearing denying the sexual relationship with T.J. I do not find the deposition testimony of T.J. credible regarding the allegations of sexual relations with Respondent. I find that there was a relationship between Respondent and T.J. because Respondent verifies the social contacts T.J. reported. Respondent did not perform any counseling with T.J. on the various occasions when they went to the bars and restaurants. This relationship was inconsistent with existing standards of professional conduct, as testified to by experts at hearing and exemplified in the code of ethics which ACT had. T.J. continued therapy as an outpatient with another ACT therapist for a short time after she was released from the hospital. During one of these sessions, T.J. told the outpatient therapist about her social/personal relationship with Respondent. Shortly thereafter, ACT fired Respondent for violation of ACT's code of ethics. This code prohibited personal relationships between patients and employees of the facility. Respondent had his Florida Teaching Certificate permanently revoked when he worked as a counselor at Deland Senior High School. He was charged with sexual misconduct with a student, and did not contest the charges formally. Psychotherapy is dependent upon a personal relationship between the patient and the therapist. Patients often develop emotional relationships or attachments to counselors or therapists because of the creation of an environment of trust. It is important that therapist recognize that this relationship is an outgrowth of treatment, and not to take advantage of the patient. Respondent had a relationship with T.J. that is contrary to the professional standards of practice, notwithstanding the allegations of sexual misconduct. His professional relationship should have been confined to the clinical setting, and the social activities in which he engaged with T.J. were inappropriate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a final order adopting this order and revoking Respondent’s license and assessing a fine of $1,000 against him pursuant to Rule 64B4- 10.002 formerly 59P-5.001, Florida Administrative Code, the Board's penalty guidelines. DONE AND ENTERED this 17th day of May, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 17th day of May, 2001. COPIES FURNISHED: Ismael Lopez 13691 Gavina Avenue, No. 447 Sylmar, California 91342 Mary Denise O'Brien, Esquire Department of Health 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner, Andrew Anthony Taylor (“Petitioner”), timely filed a petition under the Victims of Wrongful Incarceration Act, chapter 961, Florida Statutes (2016)(“the Act”); and, if so, whether Petitioner demonstrated by clear and convincing evidence, his actual innocence, thereby entitling him to monetary compensation under the Act.
Findings Of Fact Petitioner seeks compensation pursuant to the Act after serving a prison term of 25 years for the sexual abuse of his stepdaughter, C.J. The jury verdict was vacated after C.J., in 2014, recanted her accusation that Petitioner sexually abused her in 1990, when she was eight years old. The undersigned will begin with a discussion of the events in 1990, when C.J. first reported the allegation of sexual abuse against Petitioner to Dr. Valerie Rao, a rape treatment medical examiner. On the evening of March 10, 1990, C.J. was brought to the Jackson Memorial Hospital Roxcy Bolton Rape Treatment Center by her mother and grandmother, at which time C.J. came under the care of Dr. Rao. Dr. Rao obtained a detailed history from C.J., during which C.J. reported that she had been sexually abused by her stepfather, “Andrew,” at two different locations--her old house and her new house. According to C.J., the most recent sexual encounter was when she was awoken by Petitioner on “Friday night,” March 8, 1990, and told to get up and go to her mother’s bed. C.J. did so, and Petitioner then told her to take off her pajamas, which she did. According to C.J., Petitioner got on top of her, put his “private part” in her, began kissing her, and put his mouth on her “private part.” C.J. also stated Petitioner made her touch his “private part,” and that he touched her in the anal area. C.J. also stated Petitioner often put his “private part” in her mouth. C.J. also stated Petitioner told her that if she told anyone, he would kill her. After obtaining the history, Dr. Rao examined C.J. and observed multiple bruises on her right arm and thighs, and abrasions on her back and on her left breast. The bruises and abrasions were caused when C.J.’s mother beat her with a baseball bat after C.J. told her mother of Petitioner’s sexual abuse. Dr. Rao immediately reported the mother to law enforcement, and C.J.’s mother was arrested at the rape treatment center for aggravated child abuse. Dr. Rao conducted a vaginal examination of C.J. and used a colposcope to observe and document the status of C.J.’s hymen. Dr. Rao observed and documented several healed tears of the hymen, which made the opening of C.J.’s hymen bigger than it should be for a child of her age. According to Dr. Rao, C.J. did not show any natural signs of progression of the hymen tissue that might be present due to a child approaching puberty. Dr. Rao persuasively and credibly testified at hearing that C.J.’s history was consistent with her physical examination. According to Dr. Rao, the healed tears could have resulted from Respondent “trying to push his penis into her” consistent with C.J.’s history. Dr. Rao acknowledged the tears also could have been caused by a finger, a pencil, or any object that is bigger than the opening of the hymen. However, no evidence was presented at hearing indicating that a finger, pencil, or any other object was placed in the opening of C.J.’s hymen. Dr. Rao further acknowledged there was no physical evidence that she could discern or collect that identified Petitioner as the assailant in this case. However, in 1990, obtaining DNA samples and the gathering of other types of physical evidence in an effort to specifically identify perpetrators of sexual abuse were not as advanced and reliable as it is today. Following Dr. Rao’s examination on March 10, 1990, C.J. was separated from her mother, and her mother no longer had custody of her. C.J. lived with her maternal great grandmother, and without her mother in her life, until she was 16 years old. On March 27, 1990, Mercy Restani, a trained interviewer who was employed by the Dade County Children’s Center within the office of the State Attorney, interviewed C.J. at the children’s center. C.J. provided a detailed history to Ms. Restani. C.J. told Ms. Restani that the sexual abuse by Petitioner happened in the old house and at the new house. C.J. told Ms. Restani that Petitioner would get her out of her bedroom and take her into her mother’s bedroom. C.J. told Ms. Restani that Petitioner would touch her “pocketbook” (the child’s word for a vagina) with his “private” (the child’s word for penis). C.J. told Dr. Restani that Petitioner got on top of her, that he moved very fast, and that it hurt when he did so. C.J. said Petitioner touched her breasts, put his mouth on her “pocketbook,” and his “private” in her mouth. C.J. also told Ms. Restani that Petitioner told her he would kill her if she told anyone. Ms. Restani asked C.J. if she had told her mother or anyone about what had happened to her. C.J. told Ms. Restani that she did not tell her mother because she was afraid. C.J. told Ms. Restani that her mother “had been asking her for several days if Andrew had been messing with her.” When C.J. eventually told her mother what had happened, C.J. said her mother beat her with a baseball bat. On April 3, 1990, C.J. was interviewed by a clinical forensic psychologist, Manuel E. Alvarez, Ph.D. The purpose of the interview was to assess C.J.’s current mental status and emotional therapeutic needs. According to Dr. Alvarez, C.J. was able to distinguish between the truth and a lie. C.J. had the intelligence to comprehend what had happened to her, to be able to relate it to others, and she was competent to testify. C.J. provided a detailed history to Dr. Alvarez. Dr. Alvarez observed that C.J. was able to provide a synopsis of her living arrangements at the time of the incidents. C.J. identified her stepfather, “Andrew,” as the perpetrator of the sexual abuse. C.J. told Dr. Alvarez it occurred at the old house and current house. C.J. told Dr. Alvarez it occurred when Petitioner would wake her, take her into the room, and tell her to get onto the bed. C.J. was reluctant to verbally tell Dr. Alvarez what Petitioner did to her, but C.J. wrote it down on a piece of paper (Petitioner’s Exhibit 4) in her own handwriting: He would get on me. He would start moving fast on me. He would take out his private part. On my private part and In my mouth. C.J. also told Dr. Alvarez that after the incidents, Petitioner threatened to kill her if she told anyone about it. On April 5, 1990, C.J. executed an affidavit, attesting to the fact of her name, that she was eight years old, that she lived with her mother and Petitioner at a specific street address in Dade County, Florida, and that: Early in the morning on Friday, March 9, 1990, Andrew woke me up and took me to his bedroom. Andrew told me to take off my panties. He touched my breasts. He put his private part into my pocketbook. It hurt. He kissed me on my mouth and on my pocketbook. He had done this before. He told me he would kill me if I told. My mother asked me if anyone was messing with me. For several days I wouldn’t tell her. When I did tell her what Andrew did, she beat me with a baseball bat. In August 1990, C.J.’s mother entered a plea of nolo contendere to the offense of aggravated child abuse against C.J. She was adjudicated guilty, sentenced to community control, and ordered not to have any contact with C.J. until approved by the court. On October 22, 1990, C.J. gave a videotaped deposition in Petitioner’s criminal case, in which she provided details of the sexual abuse by Petitioner. In the deposition, C.J. described how Petitioner woke her up, took her to her mother’s room, touched her “pocketbook” with his mouth, and placed his “wee-wee” in her “pocketbook.” C.J. testified he moved his body around while putting his “wee-wee” in her “pocketbook,” and that it hurt when he did so. She testified that on another evening, Petitioner woke her up again, took her to her mother’s room, and touched her “pocketbook” with his hand moving up and down as he did so. She testified it happened at the new house and at the old house. Petitioner’s criminal jury trial was held in March 1991, before the Eleventh Judicial Circuit in and for Dade County, Florida, in the case of State of Florida v. Andrew Anthony Taylor, Case No. F90-009928. At Petitioner’s criminal trial, C.J. testified via closed circuit television that Petitioner came to her bedroom, woke her up, and took her to her mother’s room. C.J. testified that she was wearing pajamas and panties and that Petitioner removed them. Using anatomically correct dolls, C.J. showed the jury that Petitioner touched her vagina with his hand and put his mouth on her breasts. She further indicated that Petitioner put his mouth on her vagina and demonstrated how he put his penis in her mouth and vagina. C.J. testified that it hurt when Petitioner placed his penis in her “private part.” She testified she did not tell her mother about this that night because Petitioner said he would do something bad to her. C.J. testified that another incident occurred that same week where Petitioner did the same things to her. C.J. also testified Petitioner put something “greasy” on his “private part” before he put his “private part” in her “private part.” C.J. indicated Petitioner’s sexual abuse of her also occurred at the old house. C.J. testified that when she told her mother about Petitioner’s sexual abuse of her after the last incident, her mother became upset and hurt her. C.J. testified that when she told Dr. Rao she got all the bruises when her mother hit her with a baseball bat, it was the first time her mother ever hit her with a bat. C.J. testified she has not been able to live with or have contact with her mom since her mother hurt her. C.J.’s mother did not testify at the criminal trial against Petitioner because she had an open warrant for her arrest at the time for violating her community control. Petitioner testified at his criminal trial. Although Petitioner denied he sexually abused C.J., he acknowledged that he was C.J.’s stepfather; he married C.J.’s mother in 1989; he had a son with C.J.’s mother in 1998; he was having an extramarital affair with another woman; and while he divided his time between Maryland and Miami because of work, he was sleeping in the same home as C.J. during the timeframe that C.J. indicated she had been sexually abused by him. Following the criminal trial, Petitioner was convicted on March 15, 1991, of three counts of capital sexual battery and one count of lewd and lascivious behavior for the sexual abuse of C.J. Petitioner was sentenced to life in prison on the three capital offenses. The judgment and sentences were per curiam affirmed on appeal in Taylor v. State, 610 So. 2d 644 (Fla. 3d DCA 1992). After reporting the incidents of sexual abuse, C.J. went through counseling two times per week for several years. At no time did C.J. tell any therapists that she was not sexually abused by Petitioner. In 2006, C.J. was approached at her grandmother’s home by a male private investigator for Petitioner. The investigator wanted to ask C.J. questions about what happened with Petitioner, but C.J. refused to speak with the investigator. In either late 2013 or early 2014, C.J. was again approached by a private investigator for Petitioner, this time a female who came to C.J.’s place of employment (“Walmart”). The investigator wanted to ask C.J. if anything had happened with Petitioner. In response, C.J. immediately told her “no.” The investigator then gave C.J. a card, and C.J. told the investigator she would call her in couple of weeks. On February 17, 2014, C.J. executed an affidavit formally recanting the accusation that Petitioner sexually abused her when she was eight years old. In this affidavit, C.J. asserted now, at the age of 32, that she made the allegation because her mother was either drunk or high on drugs who would ask her “if anybody touched me inappropriately.” C.J. asserted that late one night after telling her mother that nobody touched me, her mother beat her with a baseball bat and started yelling, “did Andrew touch you.” C.J. asserted that after telling her mother no, her mother began to beat her and beat her for hours. C.J. asserted that after an extensive beating, she told her mother that “Andrew” had touched her so that she would stop beating her, and after telling her that Andrew touched her, the beating stopped. However, by this time, C.J. had developed a close relationship with her half-brother Andrew Taylor, Jr. C.J. further asserted: A while back, I began to talk with my half- brother, Andrew Jr., and would see him interacting with his own son. This started me thinking about what I had done and only I knew the real truth that Andrew was innocent. My conscience started bothering me every time I would see Andrew, Jr. playing and interacting with his son and it got to the point where I couldn’t sleep and hardly eat. I finally called my half-brother, Andrew Jr., and told him I needed to meet with him and explain what had happened regarding his father. I told Andrew Jr. that his father never touched me or bothered me sexually and that I was so sorry for his dad not being in his life because of what I did. I asked Andrew Jr. to forgive me and he agreed. I also asked Andrew Jr. what I should do and who I could write in order to correct this situation. Investigator Jeannie Rogers came to see me a few months ago and spoke to me about coming forward. I have finally gotten the courage to stand up and do what is right. On June 23, 2014, Petitioner filed a Motion for Post- Conviction Relief Based on Newly Discovered Evidence in Case No. F90-009928. The newly discovered evidence was C.J.’s recantation of the sexual abuse allegation against Petitioner. On April 2, 2015, an evidentiary hearing was held on the motion before Circuit Court Judge Diane Ward. At the hearing before Judge Ward, Petitioner presented the live testimony of C.J., who testified she made up the allegation that Petitioner sexually abused her because her mother beat her with a baseball bat to make her provide a false allegation against Petitioner. C.J. testified she told her mother Petitioner sexually abused her because she wanted the beating to stop. However, C.J. also testified when she told her mother that Petitioner sexually abused her, the beating did not stop, and her mother continued to beat her with the baseball bat for not telling her about the sexual abuse sooner. During the hearing before Judge Ward, C.J. acknowledged she provided specific details of sexual abuse by Petitioner to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her prior testimony in the underlying criminal proceedings involving Petitioner. C.J. was asked how she could have had such knowledge of sexual activity as an eight year old in order to provide the details that she did to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her testimony in the underlying criminal proceedings. In response, C.J. testified she came up with the details by watching cable television and walking in on her mother and Petitioner while they were having sex. At the hearing before Judge Ward, Respondent presented the live testimony of C.J.’s mother, who acknowledged she was a cocaine addict in March 1990. C.J.’s mother testified on direct examination that she recalled an incident in which she had returned home one night on March 5, 1990, and found C.J. lying in bed with her hands covering her front “private parts.” She testified that she could smell a “sexual scent” in the room and that she asked C.J. “what was wrong.” She testified C.J. did not indicate anything was wrong, but she was still suspicious something was wrong because of the sexual odor in the room. C.J.’s mother testified that due to this suspicion, she asked C.J. a second time on March 9, 1990, if “anyone had been messing with her.” According to C.J.’s mother, C.J. indicated this time that Petitioner “[h]ad been bothering her,” which meant that he had been sexually molesting her. C.J.’s mother testified on direct examination that when C.J. began telling her specific details of the abuse by Petitioner, she became irate and beat C.J. with a baseball bat. However, C.J.’s mother’s testimony as to when she began to beat C.J. with a baseball bat is inconsistent. C.J. and her mother acknowledged their relationship over the past several years has been good, and there is no current animosity between them. At the conclusion of the evidentiary hearing, Judge Ward orally announced her ruling that C.J.’s change in testimony is newly discovered evidence. In reaching this conclusion, Judge Ward specifically found C.J.’s testimony “reliable and credible.” Judge Ward commented she “had the opportunity to view her, and observe her during the testimony, and as well as consider any motive that she had for the recantation of her testimony.” On the other hand, Judge Ward specifically found the live testimony of C.J.’s mother to be “incredible.” In reaching this conclusion, Judge Ward commented that at the time of the events, she was by her own admission using drugs, and she had a poor recollection of the events, which is attributable to her drug use rather than to the passage of time. Judge Ward further stated: There were multiple lengthy pauses between the attorney’s questions and her answers where she seemed to be searching in her memory for answers. The Court observed that she seemed very hesitant and unsure of her own recollection of the events, and I further find that this is attributable to her extensive drug use, and that, and her intoxication on drugs at the time that this occurred. With regards to the beating, but with a baseball bat, although at some times she did acknowledge, did state that she beat her child with the baseball bat after she implicated the Defendant in the sexual assault, there were times that she said that she couldn’t recall and it could have been before she implicated her. And this is the most damaging testimony you could possibly have given the fact that there was no direct evidence otherwise implicating the Defendant as the person who sexually assaulted her. She did have six healed tears on her hymen which could have occurred at any time, and been caused by any other person. There was no DNA, blood evidence, semen, eyewitnesses, or a confession, so the only evidence that the State had, or the strongest evidence that the State had was the victim’s testimony, which was obviously obtained through a beating with a baseball bat by her mother when she was a very tiny child. The pictures of her are very sad at such a young age. There is no doubt that if a jury were to hear that the victim, hear from the victim that the Defendant was not the person that sexually abused her, and that she lied because her mother beat her with a baseball bat when she was eight years old, would have produced an, could have, would have produced an acquittal on retrial, and that the Defendant would probably be acquitted on retrial, so based on the foregoing I’m going to grant the motion for post-conviction relief. We need to schedule it for trial now. I think it has to be set in ninety days; isn’t that correct? Okay, I’ll answer my own question yes. Pet. Ex. 14, pp. 245-247. On April 2, 2015, a written order was entered vacating the finding of guilt, judgment, and sentence, and a hearing was scheduled for April 10, 2015, at which time a new trial date would be set. On April 10, 2015, the State announced a nolle prose of all criminal charges against Petitioner. On June 30, 2015, Petitioner timely filed a Petition to Establish Wrongful Incarceration in Case No. F90-009928. On July 31, 2015, Respondent filed a response contesting the petition. After the filing of the initial petition, a grand jury returned an indictment recharging Petitioner for the same crimes. C.J. was notified of the grand jury proceeding, but she did not appear or request a continuance. After the criminal case was re-filed, Respondent and Petitioner were unable to reach a settlement. On December 12, 2016, the second set of charges were nolle prossed. On January 25, 2017, Petitioner filed an amended petition. On March 17, 2017, pursuant to section 961.03(4)(a), Judge Ward issued an “Order Finding That Defendant Was a ‘Wrongfully Incarcerated Person’ and Is ‘Eligible for Compensation’ Pursuant to Section 961.03, Florida Statutes.” Judge Ward held that the petition was timely filed and that Petitioner met his burden of establishing, by a preponderance of the evidence, his “actual innocence” of the charges. Central to Judge Ward’s conclusion that C.J.’s recantation is reliable and that Petitioner met his burden of establishing his actual innocence by a preponderance of the evidence is that she had the opportunity to observe C.J. and her mother’s demeanor when they testified live at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. Judge Ward’s findings are largely based on credibility assessments of C.J. and her mother based on observations of their demeanor while testifying. In concluding that Petitioner established his “actual innocence” by a preponderance of the evidence, Judge Ward relied on the evidence presented at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. In the instant proceeding, however, Petitioner failed to meet his burden of establishing his actual innocence by clear and convincing evidence. Whether Petitioner is actually innocent turns on whether Petitioner presented clear and convincing evidence that C.J.’s recantation is reliable. The evidence presented in this case does not clearly and convincingly establish the reliability of C.J.’s recantation. To begin with, C.J. consistently provided details about sexual conduct perpetrated against her by Petitioner in her visits with Dr. Rao, Ms. Restani, and Dr. Alvarez, and in her prior deposition and trial testimony in the underlying criminal proceeding against Petitioner. C.J. gave details about how Petitioner would wake her up and take her to another room. She gave details about oral sex by Petitioner on herself and that she performed on Petitioner. She gave details about Petitioner using a lubricant on his penis. She gave details about how he would place his penis in her vagina and move up and down really fast. She said it hurt when he did so. Dr. Rao persuasively and credibly testified that the injuries to C.J.’s hymen were consistent with her history. C.J. consistently stated in 1990 and 1991 that her mother beat her with a baseball bat after she told her of the sexual abuse by Petitioner. Over 20 years later, C.J.’s story changed, and she stated that her mother beat her with a baseball bat before she told her of the sexual abuse by Petitioner. In her recantation affidavit, C.J. stated that after telling her mother that Petitioner touched her, the beating stopped. However, in the hearing before Judge Ward, C.J. testified that her mother continued to beat her with the baseball bat after she told her about the abuse for not telling her about the abuse sooner. From March 10, 1990, when C.J. was removed from her mother until she was 16 years old, C.J. had many opportunities to come forward and recant the allegation of abuse against Petitioner. During this time, there was no reason for C.J. to fear her mother because her mother was not in C.J.’s life. Subsequently, C.J. and her mother developed a good relationship. However, Petitioner waited almost 24 years to recant. C.J. recanted after developing a relationship with her half-brother, Andrew Taylor, Jr. When Andrew Taylor, Jr., turned 18 years old, he began a relationship with his father, Petitioner. Prior to recanting, C.J. regretted her half-brother did not get to spend quality time with Petitioner because Petitioner was in prison. C.J.’s development of a relationship with her half-brother and her desire that he have a strong relationship with Petitioner could be a motive for her recantation. C.J. did not appear before the grand jury, she did not request a continuance, and she was not called as a witness at either of the hearings in the instant matter. The undersigned lacked the opportunity to observe C.J.’s demeanor because she was not called to testify as a live witness. However, the undersigned had the opportunity to observe C.J.’s demeanor while testifying in her videotaped deposition in 1990, at which time she testified credibly and persuasively to facts demonstrating that Petitioner sexually abused her. Petitioner was called as a witness at the August 8, 2017, hearing, at which he was simply asked on direct examination if he ever molested C.J., to which he responded no. Petitioner’s testimony at the hearing was unpersuasive.
The Issue The issue is whether respondent's law enforcement certification should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Base upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Lloyd H. Sisk, held law enforcement certificate number 2252 issued by petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission). Respondent has held his license since April 3, 1971. When the events herein occurred, Sisk was employed as a detective with the Charlotte County Sheriff's Department. The charges against respondent are based upon an allegation of sexual abuse lodged against him by his niece, S. C., who is now seventeen years of age. The abuse allegedly occurred between December 1986 and February 1988. To place this controversy in proper perspective, a brief discussion of the living arrangements in the Sisk household is appropriate. In 1983 respondent, his wife, Brenda, and Brenda's mother (grandmother) decided to jointly purchase a home in Port Charlotte, Florida. Also residing with the Sisks were their teen-age son, Jeffrey, and the alleged victim. The grandmother had been given legal custody over the alleged victim, who was the daughter of Janis, Brenda's sister. Janis lived in Pinellas County, but because of various legal and personal problems, she had relinquished custody of her daughter to the grandmother shortly after S. C.'s birth. In late 1986, and over the objections of the grandmother and alleged victim, the Sisks decided to sell the home. This in turn engendered antagonism and animosity between the members of the family component and eventually culminated in the sexual abuse charges being made. The home was finally sold in February 1988, or more than a year later. Before the sale occurred, the Sisks advised the grandmother and alleged victim that, because of constant friction, the grandmother and S. C. would not live with the Sisks and their son when they relocated to a new home. At almost the same time the sale took place, S. C. began making sexual abuse allegations against respondent. In this regard, the testimony is sharply conflicting. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence. The allegations first surfaced on an undisclosed date in February 1988 when S. C. told her sixteen year old boyfriend, James, that respondent had touched her breasts, buttocks and vaginal area while giving her back massages and had put a condom on his penis while in her presence. On February 17, 1988, S. C. telephoned her mother in Pinellas County and said respondent had been coming home in the afternoon and asking to give her backrubs. The alleged victim further complained that, during those backrubs, respondent was "rubbing her butt and in between her legs". That same day, S. C. told her grandmother that respondent had touched her breasts, buttocks and vaginal area while giving her backrubs. Three days later, S. C.'s mother, while in an intoxicated state, telephoned the Largo Police Department and relate the abuse allegations to a detective. That led to an investigation by the Charlotte County Sheriff's Office and the eventual filing of criminal charges by the state attorney and sexual abuse charges by the Department of Health and Rehabilitative Services (HRS). 1/ At final hearing, the former boyfriend, grandmother and natural mother related the allegations described in the previous finding of fact. In addition, statements made by S. C. to an HRS counselor were offered into evidence. Finally, the alleged victim gave her version of what transpired. This included a rather graphic account of respondent, while in the presence of S. C., placing a condom on his penis and masturbating, and after attaining an erection a few minutes later, positioning his body next to S. C. and demonstrating various coital positions to his niece. The testimony of the alleged victim is not accepted as being credible for a number of reasons. To begin with, S. C. was extremely upset with respondent because the family home was being sold and she had been told that she could not remain with the Sisks. Her animosity towards respondent is also evidenced by the fact that, just prior to final hearing, she encouraged her mother (Janis) to "slam him (respondent)" with her testimony. It is also noted that the alleged victim's testimony at hearing differed in several material respects with the complaints she made to the Commission, HRS and in prior court testimony. Finally, the testimony of Lloyd, Brenda and Jeffrey Sisk, which is accepted as being credible, demonstrated numerous inconsistencies in S. C.'s testimony. Accordingly, it is found that respondent did not commit a lewd and lascivious act in the presence of his niece by exposing his penis and masturbating, and he did not handle her breasts, buttocks and vaginal area as alleged in the administrative complaint.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED that the administrative complaint be DISMISSED, with prejudice. DONE and ENTERED this 27th day of August, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Heading Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1990.
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged sexual harassment of a co-worker. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner has employed Respondent as a maintenance worker at Yulee Primary School in Yulee, Florida (the "school") for approximately 18 years. Petitioner has employed Ms. Joyce Sullivan as a food service worker for approximately three years. Respondent and Ms. Sullivan are co-workers. Respondent has no supervisory authority over Ms. Sullivan, has no authority to discipline Ms. Sullivan, and has no authority to affect the conditions of employment for Ms. Sullivan. The material facts in this case transpired over approximately ten minutes during work hours on April 6, 2000. Respondent approached Ms. Sullivan in the back kitchen of the school cafeteria shortly after breakfast and asked to speak to her privately. Ms. Sullivan agreed, and the two moved to the adjacent serving area near the checkout counter in the cafeteria. Respondent asked Ms. Sullivan to pose for pictures that would be nude, semi-nude, or partially clothed and that Respondent would enter into a contest on the internet. Respondent explained that the pictures would not identify Ms. Sullivan because the pictures would be taken from the neck down and that Ms. Sullivan could wear a bikini, a thong, or a bra. Ms. Sullivan asked Respondent what he was talking about. Respondent assured Ms. Sullivan that she would not be identified because the pictures would not identify Ms. Sullivan's face. Ms. Sullivan told Respondent that he was crazy. The entire conversation lasted approximately three minutes. Ms. Sullivan left Respondent and walked to the cash register to "ring up" the school principal who purchased some food. Ms. Sullivan went to an office in the back of the cafeteria with Ms. Sullivan's assistant manager. Respondent went to the back room and told Ms. Sullivan that he would show her some pictures on his computer. Respondent exited the room through the back door of the room to retrieve a laptop computer. Ms. Sullivan and her assistant manager went outside the back room and discussed the situation. Ms. Sullivan was embarrassed. After four or five minutes, Respondent returned to the back room and placed the laptop on the desk in front of Ms. Sullivan. The assistant manager was in the same room at another desk engaged in a telephone conversation. It took about 1.5 minutes for Respondent to turn on the laptop and display some pictures. The pictures included pictures of partially clad women and topless women. The situation terminated after 1.5 minutes when the assistant manager ended her telephone conversation, a child asked Ms. Sullivan to "ring up" some papers, and Ms. Sullivan's manager approached the room. Respondent changed the computer screen to a picture of his daughter and began talking to Ms. Sullivan's manager. Respondent left the school with the computer. Ms. Sullivan reported the incident to her manager, but Ms. Sullivan did not file a complaint for sexual harassment or state to her manager that she had been sexually harassed. Ms. Sullivan's manager relayed the information to Respondent's supervisor who discussed the matter with Respondent. Respondent admitted to the facts and expressed regret. Respondent's manager relayed the information to the Superintendent. The Superintendent investigated the matter and determined that Respondent had engaged in sexual harassment. The Superintendent based his determination on the definition of sexual harassment in the Board's Official Rule 3.54I.C. Rule 3.54I.C., in relevant part, states that sexual harassment consists of: . . . unwelcomed sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: . . . such conduct substantially interferes with an employee's work performance . . . or creates an intimidating, hostile, or offensive work . . . environment. Respondent's request for Ms. Sullivan to pose for sexually revealing pictures was either an unwelcomed sexual advance, request for sexual favor, or other inappropriate oral or written conduct of a sexual nature within the meaning of Rule 3.54I.C. Respondent's conduct substantially interfered with Ms. Sullivan's work performance or created an offensive work environment. The Superintendent testified during cross-examination that he would not have determined that Respondent engaged in sexual harassment if Ms. Sullivan had not said no to Respondent's request. A preponderance of the evidence fails to show that Ms. Sullivan expressly said "no" when asked pose or view pictures. However, a preponderance of the evidence shows that Ms. Sullivan was embarrassed and that the entire episode was unwelcomed and offensive within the meaning of Rule 3.54I.C. Respondent has no previous discipline history. Article VII of the collective bargaining agreement between the Board and its employees prescribes progressive discipline procedures for this case. Except in unusual circumstances, employment can be terminated only after an oral warning for a first offense, a reprimand for a second offense, a written warning for a third offense, and suspension for a fourth offense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of sexual harassment and suspending Respondent from employment for the time of the current suspension. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Florida. DANIEL MANRY 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 20th day of November 2000. COPIES FURNISHED: Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. John L. Ruiz, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32304 Brent P. Abner, Esquire Suite F 4741 Atlantic Boulevard Jacksonville, Florida 32207 Brian T. Hayes, Esquire 245 East Washington Street Monticello, Florida 32344 Martha F. Dekle, Esquire 806 G Street Post Office Box 1644 Jacksonville, Florida 32207
