97-003644 Department Of Health, Board Of Psychology vs. David Faustino Grabau Status: Closed Recommended Order on Monday, April 7, 2003.

Summary: Psychologist who had sexual relations with a client he was counseling committed misconduct justifying revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

PSYCHOLOGY, )

)

Petitioner, )

)

vs. ) Case No. 97 - 3644

)

DAVID FAUSTINO GRABAU, )

)

Respondent. )

)

SUPPLEMENTAL RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 6, 2003, in Tallahassee, Florida, before Susan B.

Kirkland, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petition er: Robert C. Byerts, Esquire

Department of Health

Practice Regulation -- Legal

4052 Bald Cypress Way

Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Paul Sexton, Esquire

Williams, Wilson & Sexton

215 South Monroe Street

Suite 600 - A

Post Office Box 10109

Tallahassee, Florida 32302 - 2109

STATEMENT OF THE ISSUE

Whether the deposition of K.R. is admissible either

pursuant to Rule 1.330(a)(3), Florida Rules of Civil Procedure,

or Section 90.804(2)(a), Florida Statutes.

PRELIMINARY STATEMENT

This proceeding arises as the result of the opinion of the

Fir st District Court of Appeal in Grabau v. Department of

Health , 816 So. 2d 701, (Fla. 1st DCA 2002), in which the court

reversed the Final Order of the Board of Psychology and remanded

the case for consideration of whether the partial deposition of

K.R. tak en in a prior civil action was admissible under

Section 90.804(2)(a), Florida Statutes, and Rule 1.330(a)(3),

Florida Rules of Civil Procedure. According to the court in

Grabau , if the deposition is admissible, the record is

sufficient to prove the violat ions asserted by the Petitioner,

Department of Health (Department), and, if not admissible, there

is an absence of competent substantial evidence to support the

Final Order. Grabau at 710.

The Department remanded the case to the Division of

Administrative Hearings. The hearing on the merits of the case

was held by Administrative Law Judge Arnold Pollock, who is now

retired. On remand, the case was assigned to Administrative Law

Judge Susan B. Kirkland.

At the final hearing on remand, the parties stipu lated to

the material facts pertinent to the issue in this proceeding.

The Department offered Petitioner's Exhibits 1 through 3, which

were admitted in evidence. Respondent, David F. Grabau, M.D.

(Dr. Grabau), offered Respondent's Exhibits 1 through 3, w hich

were admitted in evidence. Neither party called any witnesses.

At the close of the final hearing, the parties agreed to

file their proposed recommended orders within ten days of the

filing of the Transcript, which was filed on February 14, 2003.

Pet itioner filed an Agreed Motion for Extension of Time to

submit recommended orders, which was granted. The deadline for

submitting proposed recommended orders was extended to

February 28, 2003. The parties timely filed their Proposed

Recommended Orders wh ich have been considered in rendering this

Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with

regulating the practice of psychology pursuant to Chapters 455

and 490, Florida Statutes.

2. Dr. Grabau is and has been lic ensed as a psychologist

in Florida and is subject to the jurisdiction of the Department.

3. K.R. filed a civil lawsuit against Dr. Grabau and the

Board of Regents of the State of Florida in federal court, case

number 96 - 1995 - CIV - T - 25E.

4. The Department filed an Administrative Complaint

against Dr. Grabau on July 1, 1997, charging that in the course

of treatment of and relationship with K.R., Dr. Grabau committed

sexual misconduct in the practice of psychology and that his

conduct fell below the minimum s tandard of performance in

professional activities when measured against generally

prevailing peer performance, violating Subsections 490.0111,

490.009(2)(k), and 490.009(2)(s), Florida Statutes. This

administrative proceeding was continued and abated a nu mber of

times before the final hearing was held on January 13, 2000.

5. K.R.'s civil lawsuit was based on the same events as

the Department's Administrative Complaint filed against

Dr. Grabau.

6. Counsel for Dr. Grabau in the federal civil action

deposed K.R. on October 16, 1996, from 9:52 a.m. to 5:29 p.m.,

at which time the deposition was continued, to be rescheduled at

another date, but was never completed, due to the settlement of

that civil action.

7. The copy of the transcript of the deposition is true

and correct.

8. At the time of the civil action and the initial

complaint to the Department, K.R. resided and worked in the

Tampa Bay area. At the deposition, she provided an address in

Lutz, Florida. She also provided a street address for her

pare nts in Plantation, Florida.

9. In 1998, K.R. moved to Broward County, Florida. In

November of 1998, K.R. purchased a condominium in Plantation,

Florida, and the deed was recorded in the official records of

Broward County, Florida. During and after 1998, an online

search of public records would have identified K.R.'s location

in Broward County, Florida.

10. Since 1998, K.R. has been a resident of Broward

County, Florida. On January 13, 2000, the date of the final

administrative hearing, K.R. was located in Broward County,

Florida.

11. Maureen Holz, Esquire, served as counsel for the

Department during the course of the administrative hearing

involving Dr. Grabau.

12. During March and April 1998, efforts were made by

Ms. Holz and Virginia Daire, then c ounsel for the Department, to

arrange a deposition for K.R. in Tampa, Florida, prior to the

administrative hearing, then set for April 15, 1998. During

April 1998, Ms. Holz became aware that K.R. was residing in

Broward County, Florida, and made arrangeme nts for K.R. to fly

to Tampa to testify at the final hearing.

13. Ms. Daire attempted to locate and serve a subpoena on

K.R. at various locations to compel her attendance at a

deposition in Tampa, Florida, on March 27, 1998, but was

unsuccessful. The ret urns of service of Ms. Daire's process

servers stated that they could not locate K.R. at her address of

record in Lutz, that K.R.'s civil attorney refused to accept

service on K.R.'s behalf, contending that she was currently out

of the state and that he di d not know how to contact her, and

that substitute service had been achieved through K.R.'s mother

at a Plantation, Florida, address. However, K.R. was not

residing with her parents at that time, and never received a

subpoena for the deposition.

14. Af ter initially exploring unspecified means of

contacting K.R., Ms. Holz attempted to obtain the participation

of K.R. at a deposition and in the administrative hearing only

by seeking the assistance of K.R.'s civil counsel. She made

arrangements for K.R. t o fly to Tampa for the April 15, 1998,

hearing, but the final hearing was cancelled. Thereafter,

Ms. Holz did not otherwise attempt to locate K.R. and serve her

with a subpoena, contact her parents to ascertain her location,

or request the state's investi gator to locate her.

15. In November of 1999, Ms. Holz received an affidavit

from Kennan Dandar, stating as follows: he was counsel for

K.R., the complainant in this action; he had discussed with his

client the need for her testimony at deposition and at the

formal hearing; and that K.R. had indicated to him that, even if

called she will persist in her refusal to testify due to severe

psychological impact in remembering the occurrences.

16. The Department filed its Motion to Introduce Videotape

as Eviden ce on February 5, 1999. The motion was renewed on

September 15, 1999, and was granted on October 19, 1999. Both

the videotape and transcript of the deposition of K.R. were

admitted at final hearing on January 13, 2000.

17. Neither the Department nor Dr. Grabau contacted K.R.

directly prior to the final hearing to ascertain her willingness

to attend or to arrange for her attendance in person, via

videoconference, or via other means, nor did they attempt to

subpoena K.R. for that hearing, and K.R. did not appear at the

administrative hearing on January 13, 2000.

18. In January 2003, K.R. was contacted by both parties at

her condominium in Plantation, Florida, and later appeared

voluntarily to testify at a deposition in the instant

proceeding. She testif ied that had she been contacted directly

to testify for the January 13, 2000, hearing, she would have

appeared and testified. Testimony is regularly received at the

Division of Administrative Hearings via videoconference,

teleconference, and similar means .

19. The October 16, 1996, deposition of K.R. was

incomplete, and material areas of examination were left

unexplored by counsel for Dr. Grabau due to the settlement of

the case. These areas included, among other things, examination

concerning the partic ulars and specific time frames relating to

the alleged sexual relationship between Dr. Grabau and K.R. in

comparison to the period during which he counseled her,

comparison of K.R.'s testimony with police reports, and

examination of the notes that K.R. too k during and after the

time Dr. Grabau was counseling with her. Counsel for Dr. Grabau

in the civil case were not familiar with the regulatory statutes

and rules at issue in the administrative proceeding, were not

retained for such purposes, and were not in a position to

examine K.R. in light thereof.

20. Plantation and Fort Lauderdale, Florida, are more than

100 miles from Tallahassee, Florida, where the final hearing was

held on January 13, 2000.

CONCLUSIONS OF LAW

21. The Division of Administrative H earings has

jurisdiction over the parties to and the subject matter of this

proceeding. Sections 120.569 and 120.57, Florida Statutes.

22. In Grabau v. Department of Health, Board of

Psychology , 816 So. 2d 701 (Fla. 1st DCA 2002), the court held

that the deposition of K.R., which was admitted in evidence in

the underlying administrative proceeding pursuant to

Section 90.803(22), Florida Statutes, was not admissible because

Section 90.803(22), Florida Statutes, was unconstitutional as a

violation of Articl e V, Section 2(a) and Article II, Section 3,

Florida Constitution. On appeal, the Department argued that

K.R.'s deposition was admissible based on Section 90.804(2)(a),

Florida Statutes, and Rule 1.330(a)(3), Florida Rules of Civil

Procedure. The court s tated: "Because the issues of

'unavailability' under section 90.804(2)(a) and rule

1.330(a)(3), and other factors governing the admissibility of

the partial deposition, have not been fully addressed below, we

decline to review the question for the first t ime on appeal."

Id. at 710. The court remanded the case to the Department with

directions to remand the case to the Administrative Law Judge.

23. As the party seeking to have the deposition of K.R.

admitted, the Department has the burden to show that th e

deposition is admissible. Webster v. Berry , 133 So. 2d 327

(Fla. 2nd DCA 1961).

24. Rule 1.330, Florida Rules of Civil Procedure provides:

(a) Use of Depositions. At the trial or

upon the hearing of a motion or an

interlocutory proceeding, any par t or all of

a deposition may be used against any party

who was present or represented at the taking

of the deposition or who had reasonable

notice of it so far as admissible under the

rules of evidence applied as though the

witness were then present and te stifying in

accordance with any of the following

provisions:

(1) Any deposition may be used by any

party for the purpose of contradicting or

impeaching the testimony of the deponent as

a witness or for any purpose permitted by

the Florida Evidence Code .

(2) The deposition of a party or of

anyone who at the time of taking the

deposition was an officer, director, or

managing agent or a person designated under

rule 1.310(b)(6) or 1.320(a) to testify on

behalf of a public or private corporation, a

partn ership or association, or a

governmental agency that is a party may be

used by an adverse party for any purpose.

(3) The deposition of a witness, whether

or not a party, may be used by any party for

any purpose if the court finds: (A) that

the witness is dead; (B) that the witness is

at a greater distance than 100 miles from

the place of trial or hearing, or is out of

the state, unless it appears that the

absence of the witness was procured by the

party offering the deposition; (C) that the

witness is unable to attend or testify

because of age, illness, infirmity, or

imprisonment; (D) that the party offering

the deposition has been unable to procure

the attendance of the witness by subpoena;

(E) upon application and notice, that such

exceptional circums tances exist as to make

it desirable, in the interest of justice and

with due regard to the importance of

presenting the testimony of witnesses orally

in open court, to allow the deposition to be

used; or presenting the testimony of

witnesses in open court , to allow the

deposition to be used; or (F) the witness is

an expert or skilled witness.

(4) If only part of a deposition is

offered in evidence by a party, an adverse

party may require the party to introduce any

other part that in fairness ought to b e

considered with the part introduced, and any

party may introduce any other parts.

(5) Substitution of parties pursuant to

rule 1.260 does not affect the right to use

depositions previously taken and, when an

action in any court of the United States o r

of any state has been dismissed and another

action involving the same subject matter is

afterward brought between the same parties

or their representatives or successors in

interest, all depositions lawfully taken and

duly filed in the former action may be used

in the latter as if originally taken for it.

(6) If a civil action is afterward

brought, all depositions taken in a medical

liability mediation proceeding may be used

in the civil action as if originally taken

for it.

25. The deposition of K. R. was not taken in the

administrative proceeding in which it was sought to be used, but

was taken in a civil proceeding in which K.R. sued Dr. Grabau.

Rule 1.330(a)(3), Florida Rules of Civil Procedure, deals

principally with depositions that are sought to be used in the

actions in which they were taken. In Johns - Manville Sales Corp.

v. Janssens , 463 So. 2d 242, 259 (Fla. 1st DCA 1984), the court

stated:

It is highly questionable, however, that

deposition testimony can be used under rule

1.330 unless offered in the same judicial

proceeding in which it was originally taken.

Dinter v. Brewer , 420 So. 2d 932 (Fla. 3d

DCA 1982). The scope of the rule is

directed more to resolution of the problem

presented when the testimony is sought to be

used in a supp lemental proceeding or

retrial, or when another party is added to

the proceeding after a deposition has been

taken and the added party desires to use

such testimony against a party represented

by counsel at the deposition. Certainly

rule 1.330 is not inte nded to supplant the

"former testimony" rule now codified in the

Florida Evidence Code section 90.804(2)(a),

Florida Statutes (1983).

26. In Dinter , 420 So. 2d at 934, the court opined:

Exceptions to the rule excluding

depositions as hearsay are fou nd not only in

the rules of civil procedure, but in the

rules of evidence. While it is true, that

when considering the admissibility of a

deposition we are conditioned to look to

Florida Rule of Civil Procedure 1.330, that

rule merely supplies certain exc eptions to

the rule excluding hearsay, that is, when

the deposition is to be used in the action

for which it was taken, or in a proceeding

supplemental to, or a retrial of that

action. But when the deposition does not

come within the exception provided in the

civil procedure rule, we must turn to the

rules of evidence in our search for an

exception. These latter rules, "expand the

admissibility of depositions taken in the

action and in prior actions, but do not

limit admissibility as provided for [in the

rule of civil procedure]."

27. Rule 1.330(a)(3), Florida Rules of Civil Procedure,

does not provide a basis for the admissibility of K.R.'s

deposition because K.R.'s deposition was not taken in the

administrative proceeding, a supplemental proceeding to the

administrative case, or a rehearing of the administrative case.

However, Rule 1.330(a)(1), Florida Rules of Civil Procedure,

does allow the use of any deposition for any use permitted by

the Florida Evidence Code.

28. Section 90.804, Florida Statutes , deals with the

admissibility of deposition testimony taken in other proceedings

and provides:

(1) DEFINITION OF UNAVAILABILITY. --

"Unavailability" as a "witness" means that

the declarant:

(a) Is exempted by a ruling of a court

on the ground of pri vilege from testifying

concerning the subject matter of the

declarant's statement;

(b) Persists in refusing to testify

concerning the subject matter of the

declarant's statement despite an order of

the court to do so;

(c) Has suffered a lack of mem ory of the

subject matter of his or her statement so as

to destroy the declarant's effectiveness as

a witness during the trial;

(d) Is unable to be present or to

testify at the hearing because of death or

because then - existing physical or mental

illnes s or infirmity;

(e) Is absent from the hearing, and the

proponent of a statement has been unable to

procure the declarant's attendance or

testimony by process or other reasonable

means.

However a declarant is not unavailable as a

witness if such exemp tion, refusal, claim of

lack of memory, inability to be present, or

absence is due to the procurement or

wrongdoing of the party who is the proponent

of his or her statement in preventing the

witness from attending or testifying.

(2) HEARSAY EXCEPTIONS . -- The following

are not excluded under s. 90.802, provided

that the declarant is unavailable as a

witness:

(a) Former testimony. -- Testimony given

as a witness at another hearing of the same

or a different proceeding, or in a

deposition taken in compli ance with law in

the course of the same or another

proceeding, if the party against whom the

testimony is now offered, or, in a civil

action or proceeding, a predecessor in

interest, had an opportunity and similar

motive to develop the testimony by direct,

cross, or redirect examination.

29. In order for deposition testimony taken in another

proceeding to be admissible, the declarant must be unavailable

as defined in Subsection 90.804(1), Florida Statutes. K.R. was

not exempted from testifying at the fi nal hearing by a court

ruling on the ground of privilege. There was no court order

requiring K.R. to testify at the final hearing; thus any refusal

of K.R. to testify at the final hearing would not make her

unavailable pursuant to Subsection 90.804(1)(b), Florida

Statutes. There was no evidence that K.R. suffered from a lack

of memory. Nor is there any evidence that K.R. was suffering

from a mental or physical illness, was infirm, or was dead. The

issue becomes whether the Department was unable to procu re the

attendance of K.R. at the final hearing by process or other

reasonable means.

30. The Department admits in its Proposed Recommended

Order that "as of 1998, more than eighteen months before the

hearing, Patient K.R. was readily locatable by anyone w ho looked

for her, using information in her deposition and an online

search" and argues that if Dr. Grabau had wanted to take her

deposition that he could have done so prior to the final

hearing. Just as Dr. Grabau could have located and deposed

K.R., the Department also could have located K.R. and subpoenaed

her to appear for a deposition or to testify at the final

hearing. The Department did neither; therefore, the Department

has not demonstrated that K.R. was not "unavailable as a

witness" so as to mee t the hearsay exception of former testimony

as set forth in Section 90.804(2)(a), Florida Statutes.

31. K.R.'s deposition is not admissible based on either

Rule 1.330(a)(3), Florida Rules of Civil Procedure, or

Section 90.804(2), Florida Statutes.

32. In Grabau at 710, the Court stated:

We, note however, that if K.R.'s deposition

is found admissible under

Section 90.904(2)(a) and Rule 1.330(a)(3),

then the record evidence is sufficient to

prove the violations. Although the

deposition might be admissible under

Section 120.569(2)(g), it is nevertheless

hearsay evidence unless it would be

admissible in a civil action. Because the

deposition is the only evidence of

Dr. Grabau's inappropriate behavior, there

is an absence of competent substantial

evidence to support the order under review

unless the deposition would be admissible in

a civil action pursuant to a recognized

hearsay exception.

33. Having determined that K.R.'s deposition is

inadmissible, the evidence does not support a finding that

Dr. Grabau i s guilty of the violations as set forth in the

administrative complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that the

deposition of K.R. is inadmissible an d dismissing the

Administrative Complaint against David F. Grabau, M.D.

DONE AND ENTERED this 7th day of April, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administ rative 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 7th day of Apr il, 2003.

COPIES FURNISHED :

Robert C. Byerts, Esquire

Department of Health

Practice Regulation -- Legal

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

Paul Sexton, Esquire

Williams, Wilson & Sexton

215 South Monroe Street, Suite 600 - A

Po st Office Box 10109

Tallahassee, Florida 32302 - 2109

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. Kaye Howerton, Executive Director

Board of Psychology

Department of Health

4052 Bald Cypress Way, Bin C05

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writt en exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.