97-005193 Department Of Health, Board Of Clinical Social Workers vs. Martin Ludwig Status: Closed Recommended Order on Thursday, July 27, 2000.

Summary: Licensed clinical social worker who engaged in sexual activities with a patient is guilty of "sexual misconduct."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

CLINICAL SOCIAL WORK, MARRIAGE )

AND FAMILY THERAPY, AND MENTAL )

HEALTH COUNSELING, )

)

Petitioner, )

)

vs. ) Case No. 97- 5193

)

MARTIN LUDWIG, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

accordance with Section 120.57(1), Florida Statutes, on May 19,

2000, by video teleconference at sites in Fort Lauderdale and

Tallahassee, Florida, before Stuart M. Lerner, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Maureen L. Holz, Esquire

Williams & Holz, P.A.

211 East Virginia Street

Tallahassee, Florida 32301

For Respondent: Michael I. Schwartz, Esquire

410 North Gadsden Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

Administrative Complaint, as amended, and, if so, what penalties

should be imposed.

PRELIMINARY STATEMENT

On April 13, 1995, Petitioner's predecessor, the Agency for

Health Care Administration (AHCA), filed an Administrative

Complaint against Respondent, a Florida-licensed clinical social

worker, alleging that Respondent engaged in the following

conduct:

3. From on or about August, 1992, through

sometime shortly after April 27, 1993, the

Respondent was the therapist of record for

Patient S. G.

4. On or about April 27, 1993, and/or on

other dates unknown to the Petitioner, but

occurring during the course of therapy, the

Respondent engaged, attempted to engage, or

offered to engage Patient S. G. in sexual

behavior which includes, but is not limited

to, kissing, sexual intercourse, touching by

either the Respondent or Patient S. G. of the

other's breast or genital area.

5. On or about April 27, 1993, and/or on

other dates unknown to the Petitioner, but

occurring during the course of therapy, the

Respondent engaged Patient S. G. in verbal or

physical behavior which was sexually arousing

or demeaning. Specifically, in an attempt to

engage Patient S. G. in phone sex, the

Respondent called Patient S. G. and

communicated obscenities to her. . . .

11. At some time prior to Respondent's

treatment of S. G., he had accepted S. G.'s

husband (A. G.) as a client.

12. During Respondent's treatment of A. G.,

Respondent discussed sexual intimacy issues

occurring between S. G. and A. G.

13. Respondent discussed the same or similar

issues with S. G. during therapy and often

questioned S. G. about her sexual fulfillment

and her personal sexual preferences.

14. Further, Respondent discussed his own

sexual needs with S. G. as well as other

personal information.

According to the Administrative Complaint, in engaging in such

conduct, Respondent violated Section 491.009(2)(k), Florida

Statutes, "by committing any act upon a patient or client which

would constitute sexual misconduct" (Count One); Section

491.009(2)(q), Florida Statutes, "through a violation of Rule

61F4-10.002(1), Florida Administrative Code, 1/ by engaging a

patient in sexual behavior" (Count Two); Section 491.009(2)(q),

Florida Statutes, "through a violation of Rule 61F4-10.002(1),

Florida Administrative Code, by engaging Patient S. G. in verbal

or physical behavior which was sexually arousing or demeaning"

(Count Three); and Section 491.009(2)(s), Florida Statutes, "by

failing to meet the minimum standards of performance in

professional activities" (Count Four).

Respondent "dispute[d] the allegations of fact contained in

the Administrative Complaint and request[ ed] . . . a formal

hearing pursuant to Section 120.57(1), Florida Statutes . . . ."

AHCA, on November 5, 1997, referred the matter to the Division of

Administrative Hearings (Division) for the assignment of a

Division Administrative Law Judge to conduct the hearing

Respondent had requested.

The final hearing was originally scheduled to commence on

January 21, 1998, but was continued and rescheduled five times

(once at Petitioner's request, twice at Respondent's request, and

twice at the request of both Petitioner and Respondent).

On January 3, 2000, Petitioner filed a Motion to Amend

Administrative Complaint (Motion) in the instant case, which read

as follows:

Petitioner moves to amend . . . the

Administrative Complaint, and as grounds

therefor states:

Subsequent to the filing of the

Administrative Complaint, the criminal

charges against the Respondent based upon the

same events underlying the Administrative

Complaint were resolved. The outcome

supports an additional count in the

Administrative Complaint.

Wherefore, Petitioner respectfully request[s]

leave to amend the Administrative Complaint.

The notice of mutually convenient dates will

take into consideration the schedule of the

probable cause panel, which must review the

amendment.

On January 4, 2000, Respondent filed a Response in Opposition to

Petitioner's Motion to Amend Administrative Complaint. The

undersigned, on January 7, 2000, issued an Order, in which he

ruled as follows on the Motion:

Petitioner's Motion is premature inasmuch as

no probable cause determination has been made

pursuant to Section 455.621, Florida

Statutes, concerning the "additional count"

that Petitioner seeks to add to the

Administrative Complaint. Accordingly, the

Motion is hereby DENIED, without prejudice to

Petitioner renewing its Motion if and when

such probable cause determination is made by

the probable cause panel.

On May 4, 2000, Petitioner filed a second Motion for Leave

to Amend Administrative Complaint (Second Motion) seeking to add

a fifth count to the Administrative Complaint reading as follows:

16. Petitioner realleges and incorporates by

reference the allegations contained in

paragraphs 1 through 5 as if fully stated

herein.

17. Based upon Respondent's actions alleged

in paragraphs 1 through 5, Respondent was

charged criminally. Respondent ple[]d to a

misdemeanor battery and was placed on

probation for two years.

18. Based upon the foregoing, Respondent has

violated Section[] 491.009(2)(c), Florida

Statutes, by being convicted or found guilty,

regardless of adjudication, or having entered

a plea of nolo contendre to a crime in any

jurisdiction which directly relates to the

practice of his or her profession or the

ability to practice his or her profession.

On May 12, 2000, Respondent filed a response in opposition to

Petitioner's Second Motion. The undersigned heard oral argument

on the matter by telephone conference call on May 16, 2000.

As noted above, the final hearing in this case was held on

May 19, 2000. At the outset of the proceeding, after hearing

additional argument from the parties on Petitioner's Second

Motion, the undersigned announced that he was granting the

motion. 2/ The evidentiary portion of the final hearing

thereupon commenced.

Two witnesses testified on behalf of Petitioner: S. G., the

patient identified in the Administrative Complaint; and Debra

Frank, Ph.D., who gave expert testimony. In addition to the

testimony of these two witnesses, Petitioner offered three

exhibits (Petitioner's Exhibits 1, 2, and 3) into evidence. All

three of these exhibits were admitted, the latter two over

Respondent's objection.

Respondent did not present any evidence at the final

hearing; however, he requested that the evidentiary record be

left open in order to allow him the opportunity to present the

testimony of three "alibi" witnesses: Alva Ludwig, his wife;

Annabelle Moonshine, Ms. Ludwig's first cousin; and Monte

Holzman, a speech therapist with whom Respondent had previously

shared office space. The request was granted and the record was

left open for the purpose of receiving into evidence the

transcripts of the depositions of Ms. Ludwig, Ms. Moonshine, and

Mr. Holzman (in lieu of their "live" testimony). It was agreed

that the depositions would be taken on June 6, 2000.

Before the final hearing concluded on May 19, 2000, the

undersigned, on the record, advised the parties that proposed

recommended orders had to be filed with the Division no later

than July 10, 2000.

A transcript of the May 19, 2000, final hearing held in this

case (consisting of one volume) was filed with the Division on

June 12, 2000. On July 10, 2000, Respondent filed the

transcripts of the depositions of Ms. Ludwig, Ms. Moonshine, and

Mr. Holzman, along with his Proposed Recommended Order. To date,

Petitioner has not filed any post-hearing submittal.

The transcripts of the depositions of Ms. Ludwig, Ms.

Moonshine, and Mr. Holzman are hereby received into evidence in

lieu of the deponents' live testimony. These transcripts have

been carefully considered by the undersigned, as has Respondent's

Proposed Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and the

record as a whole, the following findings of fact are made:

1. Respondent is now, and has been since June 5, 1986, a

Florida-licensed clinical social worker, holding license number

SW1666.

2. S. G. became a patient of Respondent's in the fall of

1992, when she was experiencing marital difficulties.

3. Her then husband, from whom she was separated, was

already a patient of Respondent's.

4. Pursuant to Respondent's suggestion, S. G. saw

Respondent as a patient once a week.

5. S. G. and her husband met with Respondent both as a

couple and separately.

6. At first, during his sessions with S. G., when they were

alone, Respondent's demeanor was "pretty professional"; however,

as time passed, "boundaries were crossed." Respondent began to

talk to S. G. about his personal life. For example, he told her

about the extramarital affairs he had had, claiming that these

instances of infidelity had occurred "when he was highly

stressed." After making this claim, he added that he "had been

very, very stressed lately."

7. In or about late April of 1993, when S. G. was still a

patient of his, Respondent telephoned S. G.'s residence and asked

S. G.'s son, who had answered the telephone, if he could speak

with S. G. S. G.'s son thereupon handed S. G. the telephone and

S. G. began conversing with Respondent. During their

conversation, Respondent told S. G. that he "wanted to engage in

phone sex." When S. G. declined to participate in such activity,

Respondent asked her to visit him that evening at his office,

which she agreed to do.

8. As promised, that evening, after dark, S. G. went to

Respondent's office. When she arrived, at around 8:00 or 9:00

p.m., Respondent was in his office seeing another patient.

9. S. G. remained in the waiting area outside Respondent's

office until the other patient left and Respondent came out and

invited her to return with him to his office.

10. Upon entering the office, S. G. sat down in a chair.

Respondent thereupon took off his tie and asked S. G. if she

trusted him, to which S. G. replied, "Yes." Respondent then tied

S. G.'s hands behind her back with his tie. The two wound up on

the floor together, where they engaged in sexual intercourse.

11. They were interrupted by the ringing of the telephone

in the waiting area. Respondent left the office to answer the

telephone. He joked that it was probably his wife "wondering

where he was."

12. When he returned to the office, Respondent tossed S. G.

a few tissues to use to clean herself off. He then asked S. G.

(whose car was parked in front of the building in which

Respondent's office was located) to drive him to his car (that

was parked behind the building), which she did. They both then

went their separate ways.

13. S. G. was "very upset" following this encounter.

14. Respondent telephoned her the following morning and

told her he needed to see her. He met her later that day at a

deli catessen. When S. G. ordered only a cup of coffee,

Respondent told her that she was a "cheap date." During their

conversation in the deli catessen, Respondent told S. G. that what

had happened the night before "had to remain between the two of

[them] and no one else could know."

15. On a subsequent occasion, approximately a month or so

later, in or about early June of 1993, when she was still a

patient of Respondent's, S. G. had another encounter with

Respondent in which the two of them engaged in sexual activity.

16. This meeting took place in the evening, at

approximately 9:00 or 10:00 p.m., in S. G.'s vehicle, which was

parked near a "video store" from which Respondent had rented

"some videos" that he needed to return. After returning the

"videos," Respondent joined S. G. in her vehicle. Upon entering

the vehicle, he commented "about how [S. G.] looked." The two

then engaged in oral sex, after which Respondent stated that

"somebody's wife wasn't going to get any that night."

17. Following this second instance of sexual activity

between Respondent and S. G., S. G. began to feel that she was

"being taken advantage of, manipulated, and betrayed" by

Respondent. She therefore stopped seeing him. In addition, she

filed a civil action against Respondent and gave a statement to

the police concerning her relationship and activities with

Respondent.

18. At the time of the final hearing in this case, S. G.'s

civil action against Respondent had been settled and S. G. had

received from Respondent the money he had agreed (as part of the

settlement) to pay her.

19. S. G.'s statement to the police led to criminal charges

being filed against Respondent in Broward County Circuit Court

Case No. 94-17857CF. Respondent was initially charged with three

counts of sexual conduct by a psychotherapist, in violation of

Section 491.0112, Florida Statutes, 3/ to which he pled not

guilty.

20. Pursuant to a "plea bargain," the charges were reduced

to three counts of simple (misdemeanor) battery, to which

Respondent pled guilty "in [his] best interest." 4/

21. Respondent was adjudicated guilty and, as to each

count, placed on consecutive one-year terms of probation.

22. The following is an excerpt from the transcript of the

proceeding at which Respondent entered his guilty plea to these

reduced charges:

THE COURT: Is there a stipulation to the

factual basis of the plea?

MR. DUTKO [Defense Counsel]: Yes[] sir[,] as

to the offense of battery.

THE COURT: Okay. What facts would the State

bring forth if the case went to trial?

MR. SHANE [Prosecutor): The State would

allege that on or about the 27th day of

April, 1993, on two separate occasions, at

two separate times and locations, the

defendant did unlawfully touch or strike [S.

G.] without her permission.

With respect to Count III, as amended in the

information, on or about the 1st day of June,

1993, the defendant did touch or strike [S.

G.] without [her] permission or consent.

THE COURT: Court finds that the defendant

received advice of competent counsel with

whom he is satisfied[;] [t]hat he knowingly,

voluntarily, and intelligently waived the

constitutional rights contained in the plea

form[;] and [that] he freely entered into

this plea agreement.

The Court finds the defendant competent.

There's a factual basis and the Court hereby

accepts [the change] of plea and makes the

agreement to enter the plea and waiver of

rights an exhibit for the purpose of the

court file. Any reason why sentence should

not be imposed?

MR. DUTKO: No, sir.

THE COURT: As to case 94-17857 as far as

amended Court adjudicates the defendant

guilty of Count I, II and III, which has been

amended to Misdemeanor Battery.

The defendant is placed on one year probation

on each count. All counts are to run

consecutive[ ly], rather than concurrent[ ly],

with the following special conditions[:]

$143.00 court cost[s], and that's to be paid

at minimum equal monthly increments over the

period of probation; [r] andom urinalysis to

determine the presence of a controlled

substance[;] [t] wo hundred hours of community

service, and that may be performed at any

nonprofit entity at a minimum and equal

monthly increments over the period of his

three years of probation[;] [n]o contact

directly or indirectly with [S. G.], her

family or her place of business[;] [t]hat the

defendant may travel for business purposes

within Dade, Broward and Palm Beach[;] [t]he

defendant is permitted to go to Orlando,

during the periods that have been set

forth[;] [a] nd the Court has no objection to

the defendant, at some future date, . . .

com[ ing] in and request[ ing] further travel

once the Department has been given an

opportunity to be heard. Is that [the] sum

and substance of the agreement?

MR. DUTKO: It is Your Honor.

CONCLUSIONS OF LAW

23. The Board of Clinical Social Work, Marriage and Family

Therapy, and Mental Health Counseling (Board) is statutorily

empowered to take disciplinary action against the holder of a

Florida license to practice as a clinical social worker based

upon any of the grounds enumerated in Section 491.009(2), Florida

Statutes. Such disciplinary action may include one or more of

the following penalties: license revocation; license suspension

for a period of time not to exceed five years; imposition of an

administrative fine not to exceed $1,000 for each count or

separate offense; issuance of a public reprimand; placement on

probation for a period of time and subject to such conditions as

the Board may specify, including, but not limited to, requiring

the licensee to submit to treatment, to attend continuing

education courses, to submit to reexamination, or to work under

the supervision of a designated licensee; and restriction of

practice.

24. Section 491.009(2)(k), Florida Statutes, authorizes the

Board to take disciplinary action against a licensed clinical

social worker for "[c] ommitting any act upon a patient or client

which would constitute sexual battery or which would constitute

sexual misconduct as defined pursuant to s. 491.0111." Section

491.0111, Florida Statutes, provides as follows:

Sexual misconduct by any person licensed or

certified under this chapter, in the practice

of her or his profession, is prohibited.

Sexual misconduct shall be defined by rule.

"Sexual misconduct," as that term is used in Section

491.0111, Florida Statutes, is defined in Rule 64B4-

10.002, Florida Administrative Code, which provides, in

pertinent part, as follows:

(1) It is sexual misconduct for a

psychotherapist to engage, attempt to engage,

or offer to engage a client in sexual

behavior, or any behavior, whether verbal or

physical, which is intended to be sexually

arousing, including kissing; sexual

intercourse, either genital or anal;

cunnilingus; fellatio; or the touching by

either the psychotherapist or the client of

the other's breasts, genital areas, buttocks,

or thighs, whether clothed or unclothed. . .

25. Section 491.009(2)(q), Florida Statutes, authorizes the

Board to take disciplinary action against a licensed clinical

social worker for "[v] iolating provisions of . . . [C] hapter

[491, Florida Statutes], or of part II of chapter 455, or any

rules adopted pursuant thereto" (including Rule 64B4-10.002,

Florida Administrative Code).

26. Section 491.009(2)(s), Florida Statutes, authorizes the

Board to take disciplinary action against a licensed clinical

social worker for "[f]ailing to meet the minimum standards of

performance in professional activities when measured against

generally prevailing peer performance, including the undertaking

of activities for which the licensee . . . is not qualified by

training or experience."

27. Section 491.009(2)(c), Florida Statutes, authorizes the

Board to take disciplinary action against a licensed clinical

social worker for "[b] eing convicted or found guilty of,

regardless of adjudication, or having entered a plea of nolo

contendere to, a crime in any jurisdiction which directly relates

to the practice of his or her profession or the ability to

practice his or her profession. However, in the case of a plea

of nolo contendere, the board [must] allow the [licensee] to

present evidence in mitigation relevant to the underlying charges

and circumstances surrounding the plea."

28. "No revocation [or] suspension . . . of any [clinical

social worker's] license is lawful unless, prior to the entry of

a final order, [Petitioner] has served, by personal service or

certified mail, an administrative complaint which affords

reasonable notice to the licensee of facts or conduct which

warrant the intended action and unless the licensee has been

given an adequate opportunity to request a proceeding pursuant to

ss. 120.569 and 120.57." Section 120.60(5), Florida Statutes.

29. The licensee must be afforded an evidentiary hearing

if, upon receiving such written notice, the licensee disputes the

alleged facts set forth in the administrative complaint.

Sections 120.569(1) and 120.57, Florida. Statutes.

30. At the hearing, Petitioner bears the burden of proving

that the licensee engaged in the conduct, and thereby committed

the violations, alleged in the administrative complaint. Proof

greater than a mere preponderance of the evidence must be

presented. Clear and convincing evidence of the licensee's guilt

is required. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987); Pou v. Department of Insurance and Treasurer ,

707 So. 2d 941 (Fla. 3d DCA 1998); and Section 120.57(1)(j),

Florida Statutes ("Findings of fact shall be based upon a

preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . .").

31. Clear and convincing evidence "requires more proof than

a 'preponderance of the evidence' but less than 'beyond and to

the exclusion of a reasonable doubt.'" In re Graziano , 696 So.

2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id .

For proof to be considered "'clear and convincing' . . . the

evidence must be found to be credible; the facts to which the

witnesses testify must be distinctly remembered; the testimony

must be precise and explicit and the witnesses must be lacking in

confusion as to the facts in issue. The evidence must be of such

weight that it produces in the mind of the trier of fact a firm

belief or conviction, without hesitancy, as to the truth of the

allegations sought to be established.'" In re Davey , 645 So. 2d

398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

32. In determining whether Petitioner has met its burden of

proof, it is necessary to evaluate its evidentiary presentation

in light of the specific factual allegations made in the

administrative complaint. Due process prohibits an agency from

taking disciplinary action against a licensee based upon conduct

not specifically alleged in the agency's administrative complaint

or other charging instrument. See Hamilton v. Department of

Business and Professional Regulation , 25 Fla. L. Weekly D1689b

(Fla. 1st DCA July 14, 2000); Lusskin v. Agency for Health Care

Administration , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996).

33. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the administrative

complaint] to have been violated." Delk v. Department of

Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

In deciding whether "the statute or rule claimed to have been

violated" was in fact violated, as alleged by Petitioner, if

there is any reasonable doubt, that doubt must be resolved in

favor of the licensee. See Whitaker v. Department of Insurance

and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah

v. Department of Professional Regulation, Board of Medicine , 574

So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

34. The first three counts of the Amended Administrative

Complaint issued in the instant case allege that Respondent

engaged in "sexual misconduct" with S. G. during the period that

S. G. was his patient and receiving therapy from him, in

violation of Section 491.009(2)(k), Florida Statutes (Count One);

and Rule 64B4-10.002, Florida Administrative Code, 5/ and,

therefore, also Section 491.009(2)(q), Florida Statutes (Counts

Two and Three).

35. In support of these allegations, Petitioner presented

the "live" testimony of S. G. S. G. testified that, during the

time that she had been Respondent's patient, Respondent, on one

occasion, telephoned her and told her that he "wanted to engage

in phone sex" with her; later that evening, Respondent had sexual

intercourse with her in his office; and, on a subsequent

occasion, Respondent had oral sex with her in her vehicle.

Respondent chose to remain silent (as was his right under State

ex rel. Vining v. Florida Real Estate Commission , 281 So. 2d 487

(Fla. 1973)) and did not take the stand to attempt to refute S.

G.'s testimony. Instead, he presented the testimony of three

"alibi" witnesses.

36. Having carefully considered the evidentiary record in

this case in its entirety, the undersigned accepts as accurate

and truthful the testimony S. G. gave at the final hearing

describing Respondent's "sexual misconduct." Her testimony was

not inherently unreasonable or implausible, and she had no

apparent reason, at the time of the final hearing, to testify

falsely against Respondent. While she had difficulty pinpointing

the exact dates and times that the events she described had taken

place, the undersigned is convinced that these events indeed did

occur and were not a product of S. G.'s imagination and that they

occurred at times other than when Respondent's "alibi" witnesses

established Respondent was not in the company of S. G.

37. S. G.'s testimony, although uncorroborated, constitutes

clear and convincing evidence that Respondent committed the

violations alleged in the first three counts of the Amended

Administrative Complaint. See Section 120.81(4)(a), Florida

Statutes ("Notwithstanding s. 120.569(2)(g), in a proceeding

against a licensed professional or in a proceeding for licensure

of an applicant for professional licensure which involves

allegations of sexual misconduct: The testimony of the victim of

the sexual misconduct need not be corroborated.").

38. To the extent that Count Four of the Amended

Administrative Complaint alleges that Respondent "fail[ ed] to

meet the minimum standards of performance in professional

activities," in violation of Section 491.009(2)(s), Florida

Statutes, by engaging in sexual activity with S. G., it too is

supported by clear and convincing record evidence; however, to

the extent this count of the Amended Administrative Complaint

alleges that Respondent violated Section 491.009(2)(s), Florida

Statutes, by engaging in the (verbal) conduct described in

numbered paragraphs 12, 13, and 14 of the complaint, the record

evidence is insufficient to support a finding of guilt inasmuch

as it does not clearly and convincingly establish that Respondent

committed the acts alleged in numbered paragraphs 12 and 13 and,

although there is proof demonstrating that Respondent shared

personal information about himself with S. G., as alleged in

numbered paragraph 14, the record fails to clearly and

convincingly establish that, in so doing, he "fail[ ed] to meet

minimum standards of performance in professional activities when

measured against generally prevailing peer performance." See

McDonald v. Department of Professional Regulation, Board of Pilot

Commissioners , 582 So. 2d 660, 668 (Fla. 1st DCA 1991)("Whether

McDonald's conduct deviated from the standards of care required

of a licensed pilot under the cited statutory provision can be

proved only through expert testimony establishing the requisite

professional standards he is said to have violated; yet, no

expert testimony was presented to establish these standards.").

39. The record contains clear and convincing evidence that

Respondent violated Section 491.009(2)(c), Florida Statutes, as

alleged in Count Five of the Amended Administrative Complaint.

As Respondent concedes (in his Proposed Recommended Order), he

was found guilty and convicted of three counts of simple

(misdemeanor) battery in Broward County Circuit Court Case No.

94-17857CF. Although Respondent acknowledges his battery

convictions, he nonetheless contends that the record evidence is

insufficient to establish a violation of Section 491.009(2)(c),

Florida Statutes, because it does not establish that the crimes

of which he was convicted have "any direct relationship to the

practice of [his] profession or to his ability to practice his

profession." An examination of the evidentiary record, however,

reveals otherwise inasmuch as it clearly and convincingly shows

that S. G. was the victim of the batteries of which Respondent

was convicted and that these batteries were committed at a time

when S. G. was a patient of Respondent's.

40. In view of the foregoing, the Board is authorized to

take disciplinary action against Respondent pursuant to Section

491.009(2)(c), (k), (q), and (s), Florida Statutes.

41. In determining what disciplinary action the Board

should take, it is necessary to consult the Board's "disciplinary

guidelines," which impose restrictions and limitations on the

exercise of the Board's disciplinary authority. See Parrot

Heads, Inc. v. Department of Business and Professional

Regulation , 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An

administrative agency is bound by its own rules . . . creat[ ing]

guidelines for disciplinary penalties."); cf . State v. Jenkins ,

469 So. 2d 733, 734 (Fla. 1985)("[A] gency rules and regulations,

duly promulgated under the authority of law, have the effect of

law."); Buffa v. Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA

1995)("An agency must comply with its own rules."); Decarion v.

Martinez , 537 So. 2d 1083, 1084 (Fla. 1st 1989)("Until amended or

abrogated, an agency must honor its rules."); and Williams v.

Department of Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA

1988)(agency is required to comply with its disciplinary

guidelines in taking disciplinary action against its employees).

42. The Board's "disciplinary guidelines" are found in Rule

64B4-5.001, Florida Administrative Code, which provides, in

pertinent part, as follows:

(1) When the Board finds an applicant,

licensee, registered intern, provisional

licensee, or certificate holder whom it

regulates under Chapter 491, Florida

Statutes, has committed any of the acts set

forth in Chapter 491.009(2), Florida

Statutes, it shall issue a final order

imposing appropriate penalties as recommended

in the following disciplinary guidelines. . .

(c) Being convicted or found guilty,

regardless of adjudication, or having entered

a plea of nolo contendere to, a crime in any

jurisdiction which directly relates to the

practice of the licensee's profession or the

licensee's ability to practice that

profession. Generally the usual recommended

penalty shall be suspension of license until

such time as the licensee can, to the Board's

satisfaction, demonstrate rehabilitation and

an administrative fine of $1,000. . . .

(k) Committing any act upon a patient or

client, which would constitute sexual battery

or which would constitute sexual misconduct

as defined in Section 491.0111, Florida

Statutes. The usual recommended penalty

shall be an administrative fine of $1,000 and

suspension followed by probation on terms and

conditions set by the Board or revocation. .

(q) Violating provisions of Chapter 491,

Florida Statutes, or of Chapter 455, Part II,

Florida Statutes, or any rule adopted

pursuant thereto. The usual recommended

penalty shall range from a public reprimand

to revocation depending on the nature of the

statutory or rule provision violated and an

administrative fine of $1,000.

(s) Failing to meet the minimum standards of

performance in professional activities when

measured against generally prevailing peer

performance, including the undertaking of

activities for which the licensee is not

qualified by training or experience. The

usual recommended penalty shall be an

administrative fine of $1,000 and suspension

until such time as the licensee demonstrates

to the Board's satisfaction competence in the

performance of the licensee's profession,

then a probation from one to four years with

such terms and conditions as set by the Board

(2) Based upon consideration of the

following factors, the Board may impose

disciplinary action other than the penalties

recommended above:

(a) the severity of the offense;

(b) the danger to the public;

(c) the number of repetitions of offenses;

(d) the length of time since the date of the

violation(s);

(e) prior discipline imposed upon the

licensee;

(f) the length of time the licensee has

practiced;

(g) the actual damage, physical or

otherwise, to the patient;

(h) the deterrent effect of the penalty

imposed;

( i) the effect of the penalty upon the

licensee's livelihood;

(j) any efforts for rehabilitation;

(k) the actual knowledge of the licensee

pertaining to the violation;

(l) attempts by the licensee to correct or

stop violations or failure of the licensee to

correct or stop violations;

(m) related violations against the licensee

in another state, including findings of guilt

or innocence, penalties imposed and penalties

served;

(n) any other mitigating or aggravating

circumstances.

(3) Penalties imposed by the Board pursuant

to 64B4-5.001(1), Florida Administrative

Code, may be imposed in combination or

individually but may not exceed the

limitations enumerated below:

(a) denial of an application for licensure,

either temporarily or permanently;

(b) revocation of an application for

licensure, either temporarily or permanently;

(c) suspension of a license for a period of

up to five years 6/ or revocation of a

license, after hearing;

(d) immediate suspension of license pursuant

to Section 120.60(6), Florida Statutes;

(e) imposition of an administrative fine not

to exceed one thousand ($1,000) dollars for

each count or separate offense;

(f) issuance of a public reprimand;

(g) placement of an applicant or licensee on

probation for a period of time and subject to

such conditions as the Board may specify;

(h) restriction of practice.

(4) The provisions of Sections (1) through

(4) above shall not be constructed so as to

prohibit civil action or criminal prosecution

as provided in Section 491.012 or Section

455.624, Florida Statutes, and the provisions

of Sections (1) through (4) above shall not

be construed so as to limit the ability of

the Board to enter into binding stipulations

with accused parties as per Section

120.57(4), Florida Statutes.

43. Having carefully considered the facts of the instant

case in light of the provisions of Rule 64B4-5.001, Florida

Administrative Code, set forth above, the undersigned concludes

that, for having committed the violations of Section

491.009(2)(c), (k), (q), and (s), Florida Statutes, described

above, Respondent should be fined $2,000.00 and his license

should be suspended for a period of six months, after which he

should be placed on probation for a period of one year.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED that the Board enter a final order finding

Respondent guilty of the violations of Section 491.009(2)(c),

(k), (q), and (s), Florida Statutes, described above and

disciplining him for having committed these violations by fining

him $2,000.00, suspending his license for a period of six months,

and placing him on probation for a period of one year commencing

immediately following the conclusion of the period of his

suspension.

DONE AND ENTERED this 27th day of July, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of July, 2000.

ENDNOTES

1/ Rule 61F4-10.002, Florida Administrative Code, was

subsequently renumbered 64B4-10.002, Florida Administrative Code.

2/ See Optiplan, Inc. v. School Board of Broward County , 710 So.

2d 569, 572 (Fla. 4th DCA 1998); and Key Biscayne Council v.

Department of Natural Resources , 579 So. 2d 293, 295 (Fla. 3d DCA

1991).

3/ Section 491.0112, Florida Statutes, provides as follows:

(1) Any psychotherapist who commits sexual

misconduct with a client, or former client

when the professional relationship was

terminated primarily for the purpose of

engaging in sexual contact, commits a felony

of the third degree, punishable as provided

in s. 775.082 or s. 775.083; however, a

second or subsequent offense is a felony of

the second degree, punishable as provided in

s. 775.082, s. 775.083, or s. 775.084.

(2) Any psychotherapist who violates

subsection (1) by means of therapeutic

deception commits a felony of the second

degree punishable as provided in s. 775.082,

s. 775.083, or s. 775.084.

(3) The giving of consent by the client to

any such act shall not be a defense to these

offenses.

(4) For the purposes of this section:

(a) The term "psychotherapist" means any

person licensed pursuant to chapter 458,

chapter 459, chapter 464, chapter 490, or

chapter 491, or any other person who provides

or purports to provide treatment, diagnosis,

assessment, evaluation, or counseling of

mental or emotional illness, symptom, or

condition.

(b) "Therapeutic deception" means a

representation to the client that sexual

contact by the psychotherapist is consistent

with or part of the treatment of the client.

(c) "Sexual misconduct" means the oral,

anal, or vaginal penetration of another by,

or contact with, the sexual organ of another

or the anal or vaginal penetration of another

by any object.

(d) "Client" means a person to whom the

services of a psychotherapist are provided.

4/ Pursuant to Rule 3.172(d), Florida Rules of Criminal

Procedure, the guilty plea of a criminal defendant may be

accepted in the absence of an acknowledgment of guilt if the

defendant "acknowledges that he or she feels the plea to be in

his or her best interest, while maintaining his or her

innocence."

5/ Unlike the original Administrative Complaint, the Amended

Administrative Complaint makes reference to Rule 64B4-10.002,

Florida Administrative Code, which is currently in effect,

instead of Rule 61F4-10.002, Florida Administrative Code, which

is the current rule's predecessor.

6/ The Board is without authority to impose an indefinite

suspension that may last longer than five years. See Haas v.

Department of Business and Professional Regulation , 699 So. 2d

863 (Fla. 5th DCA 1997).

COPIES FURNISHED:

John O. Williams, Esquire

Maureen L. Holz, Esquire

Williams & Holz, P.A.

211 East Virginia Street

Tallahassee, Florida 32301

Michael I. Schwartz, Esquire

410 North Gadsden Street

Tallahassee, Florida 32301

Angela T. Hall, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

Susan Foster, Executive Director

Board of Clinical Social Work,

Marriage and Family Therapy, and

Mental Health Counseling

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written 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.