00-004526PL Department Of Health, Board Of Clinical Social Work, Marriage And Family Therapy, And Mental Health Counseling vs. Ismael Lopez Status: Closed Recommended Order on Thursday, May 17, 2001.

Summary: The Department showed the licensee engaged in a social, non-sexual relationship that was inconsistent and contrary to the accepted standards of professional conduct.

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. 00-4526PL

)

ISMAEL LOPEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above-

style case by Stephen F. Dean, Administrative Law Judge of the

Division of Administrative Hearings, on February 2, 2001, in

Daytona Beach, Florida.

APPEARANCES

For Petitioner : Mary Denise O'Brien, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

For Respondent : Ismael Lopez, pro se

13691 Gavina Ave nue, No. 447

Sylmar, California 91342

STATEMENT OF 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 .

PRELIMINARY STATEMENT

On June 28, 1999, the D epartment of Health, Board of

Clinical Social Work, Marriage and Family Therapy and Mental

Health Counseling filed an Administrative Complaint against

Respondent, Ismael Lopez, alleging that Respondent violated the

above sections of the practice Act.

Peti tioner requested a formal hearing, and the case was

transferred to the Division of Administrative Hearings. It was

noticed for formal hearing and heard as noticed.

Petitioner’s witnesses were Ismael Lopez , T.J., Diane

Mongelli, Janet Miller, and expert witness Dr. Stephen Wright.

Petitioner placed Exhibits 1 through 7 into evidence.

Respondent testified in his own behalf, and placed Exhibits

1 through 5 into evidence.

A Transcript was ordered and filed on March 1, 2001.

Subsequently, Respondent requested a copy of the transcript from

the Division of Administrative Hearings, and delays occurred in

providing him with a copy which were not the fault of

Respondent. His Proposed Recommended Order containing his

suggested findings and a discussion of the law were filed late,

and objected to by Petitioner. Because the delay grew out of

circumstances over which Respondent had no control and because

it does not prejudice Petitioner, Respondent’s Proposed

Recommended Order was read and considered.

Petit ioner filed a Proposed Recommended Order which was

also read and considered.

FINDINGS OF FACT

1. At all times material, Respondent held a license as a

Mental Health Counselor in the State of Florida.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. T.J. alleges that when Respondent brought T.J. home

that night they engaged in oral sex and intercourse.

10. A few days later, T.J. and Respondent met for dinner

at the Olive Garden. At the Olive Garden they had dinner and

drinks.

11. 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.

12. 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.

13. T.J. alleges that when they returned to T.J.'s house

Respondent stayed until early morning and they had oral sex and

intercourse.

14. Respondent denies any sexual intimacy with T.J., and

asserts that their relationship was one of patient-therapist

even after she left ACT.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.57, Florida Statutes.

22. Petitioner has the burden of proving by clear and

convincing evidence that Respondent has violated the above

statute. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1st DCA

1987). Petitioner has met that burden.

23. Section 491.009(2), Florida Statutes, states:

(2 ) The following acts of a licensee,

certificate holder, or applicant are grounds

for which the disciplinary actions listed in

subsection (1) may be taken:

* * *

(k ) Committing 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.

* * *

(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 or

certificateholder is not qualified by

training or experience.

Section 491.0111, Florida Statutes, states:

Sexual misconduct by any person licensed or

certified under this chapter, in the

practice of his profession, is prohibited.

Sexual misconduct shall be defined by rule.

Rule 64B4-10.002, Florida Administrative

Code, states:

(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.

2 4. Section 120.81(4), Florida Statutes, states:

(4 ) REGULATION OF PROFESSIONS –

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:

(a ) The testimony of the victim of the

sexual misconduct need not be corroborated.

25. While the testimony of the victim need not be

corroborated, it must be credible. I do not find the testimony

of the alleged victim credible regarding the allegations of

sexual intimacy with Respondent. I do find that there was a

social relationship or contact outside the clinical setting

which was inconsistent with professional standards.

26. There is undisputed evidence that shows that

Respondent was disciplined for engaging in a sexual relationship

with a student while a counselor in Deland Senior High School.

This evidence is admissible because it is relevant to prove

motive, opportunity, and pattern. See Williams v. State , 110

So. 2d 654 (Fla. 1959).

27. Although I find that he did not in the instant case

engage in sexual relations with T.J., his conduct in the instant

case is consistent with a history of having personal

relationships that are professionally inappropriate with

patients.

28. Respondent requested that testimony and depositions

taken in the case of T.J. v. ACT Corporation , Case No. 98-30226-

CI-CI (Fla. 7th Cir. Ct.) (case settled) be admitted as evidence

in this case. Petitioner objected. The deposition in question

was introduced to impeach the testimony of T.J. in the instant

case. Such testimony is admissible pursuant to Section 90.801,

Florida Statutes. See State v. Green , 667 So. 2d 756 (S. Ct.

1995), and Kaminshy vavelers Indem. Co. , 474 So. 2d 287

(Fla. 3d DCA 1985).

29. Respondent had a social relationship with T.J. as

evidenced by taking her to a bar or bringing her flowers and

gifts. Consent of the patient does not excuse or mitigate this

conduct. Respondent's conduct violated the minimum standards of

performance.

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 [phone]

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

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.