01-004192PL Department Of Health, Board Of Psychology vs. Frank Brown Status: Closed Recommended Order on Wednesday, February 27, 2002.

Summary: Exhibitionism found to directly impact a psychologist`s fitness to practice his profession.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF PSYCHOLOGY, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4192PL

)

FRANK BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

No tice was provided and a formal hearing was held on

January 16, 2002, in Pensacola, Florida, and conducted by

Harry L. Hooper, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Mary Denise O'Brien, E squire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 39

Tallahassee, Florida 32308

For Respondent: Paul Watson Lambert, Esquire

1203 Governo r's Square Boulevard

Magnolia Centre, Suite 102

Tallahassee, Florida 32311 - 2960

STATEMENT OF THE ISSUE

Whether Respondent violated Section 490.009(2)(c), Florida

Statutes (2000).

PRELIMINARY STATEMENT

On August 17, 2001, the Department of Health, Board of

Psychology (Department), filed an Administrative Complaint

notifying Frank Brown, Ph.D. (Respondent), that it intended to

impose one or more penalties upon Petitioner's license.

Respondent requested an administrati ve hearing in a petition

served on October 3, 2001. In a letter filed with the Division

of Administrative Hearings on October 25, 2001, the Department

forwarded the matter to the Division of Administrative Hearings

for action.

The case was set for fo rmal hearing on January 16, 2002,

and was heard as scheduled.

The Department presented the testimony of three witnesses

and offered three exhibits on behalf of Petitioner. The

Department offered five joint exhibits on behalf of the parties.

All of t he exhibits were admitted into evidence. Respondent

presented the testimony of eight witnesses and offered two

exhibits for admission into evidence. Both exhibits were

admitted into evidence. A scholarly article entitled "Sex -

Offender Risk Assessment an d Disposition Planning: A Review of

Empirical and Clinical Findings," by Robert J. McGrath, which

was published in the International Journal of Offender Therapy

and Comparative Criminology in 1991 (the McGrath article), was

marked as Respondent's Exhibit 3 for identification. This

article was the subject of testimony elicited by both parties.

It was not offered into evidence.

At the conclusion of the hearing the parties requested 14

days from the filing of the transcript to file proposed

recommende d orders.

A Transcript was filed with the Division of Administrative

Hearings on January 30, 2002. Subsequently, Respondent

requested that proposed recommended orders be due February 20,

2002. Petitioner did not object. By order dated February 11,

2002, the motion was granted. Both parties timely filed

Proposed Recommended Orders which were considered in the

preparation of this Recommended Order.

References are to Florida Statutes (2000) unless otherwise

noted.

FINDINGS OF FACT

1. The De partment is the state agency charged with

regulating the practice of psychology pursuant to Section 20.43,

Florida Statutes, and Chapters 456 and 490, Florida Statutes.

2. Respondent, during all times material to these

proceedings, was a licensed psy chologist in the State of

Florida. He continues to be licensed in the State of Florida.

His license identification is PY 2079. He practices psychology

in Pensacola, Florida.

3. Respondent went to the Bahama Bay Club, a condominium

located in Gulf Breeze, Florida, on July 19, 2000. In the

vicinity of the swimming pool located on the condominium

premises, he removed his penis from his trousers and began

shaking it in the presence of two women who were in or near the

pool. Respondent whistled at the two women who then observed

him.

4. One of the women was Beth Rico, who is an airline

pilot. The other woman was Ms. Rico's 19 - year - old niece who is

a student at Louisiana Tech University.

5. Ms. Rico yelled at Respondent who thereafter place d his

penis in his trousers and retreated. Ms. Rico told Respondent

to get off the property and subsequently pursued Respondent.

6. By chance, Sergeant Stephen Neff of the Gulf Breeze,

Florida, Police Department, was in the immediate area of

Ms . Rico and Respondent. Ms. Rico told Sergeant Neff that

Respondent had exposed himself to her niece and to herself.

7. Sergeant Neff pursued Respondent off the premises of

the Bahama Bay Club. Respondent dove into some azalea bushes.

Sergeant Neff attempted to apprehend Respondent by grabbing him.

Respondent attempted to extricate himself. The two eventually

exited the azalea bushes into the parking lot of a shopping

plaza. There was a continuing struggle which ended only after

officers arrived from the Gulf Breeze Police Department

subsequent to calls for help made by citizen bystanders.

8. It is apparent that Respondent's motivation was to

escape rather than harm Sergeant Neff. However, as a result of

Respondent's efforts to resist arres t, Sergeant Neff received

abrasions and cuts to his hands, knees, elbows, and feet.

9. On December 20, 2000, during an appearance before the

Circuit Court of Santa Rosa County, Respondent was placed on

probation for a period of one year subsequent to pleading guilty

to the misdemeanor of battery and resisting a law enforcement

officer without violence and after pleading nolo contendere to

the misdemeanor of indecent exposure in a public place.

Adjudication was withheld for the offense of battery and

resisting a law enforcement officer without violence. He was

adjudicated guilty of indecent exposure in a public place.

Expert testimony

10. Carolyn Stimel, Ph.D., is a psychologist in

Tallahassee, Florida. She is board - certified in forensic

psycho logy. She is an expert in the field of psychology and is

an expert in treating sexual predators.

11. Prior to testifying, she reviewed the Administrative

Complaint, the response to the investigative complaint, and a

copy of a psychological evaluatio n on Respondent prepared by

Dr. Larry Neidigh completed on June 11, 2001. She also reviewed

the investigative report prepared by the Agency for Health Care

Administration (AHCA). She did not personally examine

Respondent.

12. Dr. Stimel noted that Dr. Neidigh diagnosed Respondent

as being afflicted with exhibitionism. Exhibitionism is a

subset of paraphilia and describes someone who derives sexual

excitement or satisfaction from displaying their genitals to

unsuspecting or unwilling observers.

13. Dr. Stimel opined that exhibitionism may be treated

but recidivism is high. There are some people who do not

respond at all to treatment. About 40 percent of persons with

one paraphilia, such as exhibitionism, are likely to have

another, but diff erent paraphilia. However, Dr. Stimel stated

that there was no evidence of this in the case of Respondent.

14. It is Dr. Stimel's opinion that a psychologist needs

integrity, good judgment, and emotional stability in order to

properly perform the du ties of a psychologist. It is

Dr. Stimel's opinion that Respondent is not mentally fit to

practice psychology at this time. Dr. Stimel believes that

someone having psychological, emotional, or sexual problems

which affect their ability to work ef fectively with patients is

not mentally fit to properly practice psychology.

15. It is Dr. Stimel's opinion that there is a nexus

between the practice of psychology and a conviction of indecent

exposure and a diagnosis of paraphilia.

16. The ex pert testimony of Dr. Stimel, taken as a whole,

is credible.

17. Larry Neidigh, Ph.D., of Orange Park, Florida,

conducted a psychological evaluation of Respondent on June 6,

2001, and made a report dated June 11, 2001. Dr. Neidigh

reviewed documents pertinent to the matter and administered a

five - hour battery of psychological tests to Respondent.

18. Dr. Neidigh's diagnostic impression was exhibitionism.

He opined that there were no indications of any mental

abnormality or psychopathology wh ich would indicate that he is

not competent to perform his duties as a psychologist. It is

Dr. Neidigh's opinion that the conviction does not directly

relate to the practice of his profession or his ability to

practice his profession.

19. The report of Dr. Neidigh is succinct. It is also

helpful, but Dr. Neidigh did not appear at the hearing and all

of the factual underpinnings which caused him to formulate his

conclusions were not available. Additionally, there is a

substantial question as to whet her certain of the tests

administered by Dr. Neidigh were helpful in understanding

Respondent's situation. Accordingly, the information supplied

by Dr. Neidigh is considered less persuasive than that provided

by Dr. Stimel.

20. James Burt Meyer, Ph. D., is a psychologist who also

has a law degree. He has done post - doctorate work in two

different areas of psychology. He practices forensic

psychology, and he is a professor at Florida State University.

He frequently conducts training workshops address ing ethical

issues in psychology, and has worked in the area of assessing

and treating juvenile sex offenders. He is an expert in

psychology.

21. Dr. Meyer did an extensive document review in the case

of Respondent and conducted interviews of both t he Respondent

and his wife. He engaged in a very careful review of the

Florida Psychological Services Act with specific reference to

Section 490.009(2)(p), Florida Statutes, which addresses the

issue of a psychologist's fitness to practice the profession.

22. Dr. Meyer believes there are three areas which should

be considered in Respondent's case.

23. The first area addresses whether the offender admitted

that he had committed a sexual offense and whether he accepted

responsibility for that ac t. Dr. Meyer believes that

acknowledging that one has a problem is an indication that

rehabilitation is probable. He noted that Respondent

acknowledged that he had exposed himself.

24. The second area is whether Respondent expressed a

desire to sto p his behavior. Respondent expressed remorse for

his behavior and said that he wished to make amends. He

informed Dr. Meyer that he had written letters to the two women

and the police officer expressing his regret.

25. The third area is whether the offender expressed a

desire for treatment. Dr. Meyer did not discuss what, if any,

treatment Respondent sought nor is there any evidence in the

record which indicated that Respondent sought treatment.

26. In an effort to formulate an opinion as to whether the

act in which Respondent engaged on July 19, 2000, was directly

related to the practice of psychology, he also consulted the

McGrath article, consulted his own library of psychology law and

ethics, and reviewed the definition of serious crimes i n the

National Registry of Health Service Providers (National

Registry).

27. Upon a review of all of the foregoing material and

after considering all of the other information available to him,

Dr. Meyer concluded that Respondent's behavior did not rise to a

level where a chronic abuse of power between patient and

therapist might occur. He opined that there was no direct

relation between Respondent's exhibitionism and his practice of

psychology.

28. Dr. Meyer further noted that indecent exposu re was a

misdemeanor and was not the type of crime that would cause a

psychologist to be removed from the National Registry. While he

opined that Respondent's behavior suggested a great lapse in

moral consciousness, it did not extend to exhibiting a depra ved

mind.

29. Dr. Meyer agreed with Dr. Stimel when she stated that

the recidivism rate for exhibitionism ranges from zero to 70

percent. Dr. Meyer also opined that a person could

compartmentalize his behaviors and stated that Respondent could

compa rtmentalize his professional life and his personal life so

that aberrant behavior in his personal life might not affect his

performance in his professional life.

30. Dr. Meyer further noted that exhibitionism is a crime

usually committed by young men , that men over 40 rarely

practiced exhibitionism, and that since Dr. Meyer is about 55

years of age, he is less likely to engage in that kind of

behavior than are younger men.

31. In discussing the McGrath article, it was pointed out

that about 35 p ercent of incarcerated rapists and child

molesters engaged in hands - off aberrant sexual behavior, like

exhibitionism, prior to moving into hands - on offenses such as

rape. Dr. Meyer stated that he did not believe that would be

the case with Respondent.

32. Dr. Meyer's testimony was informative; however, he

stated that a key indicator of rehabilitation was seeking

treatment, but there was no evidence that Respondent sought

treatment subsequent to the events of July 19, 2000. Moreover,

Dr. Meyer could not adequately address the propensity of certain

exhibitionists to move on to more heinous sexual activities. As

a result, Dr. Meyer's opinion that there is no direct relation

between Respondent's exhibition and his practice of psychology,

is rejected.

Ch aracter witnesses

33. Dr. Henry E. Roberts is Respondent's pastor at United

Methodist Church. He knows Respondent and his wife. He stated

that Respondent is an active church member, a man of integrity,

and is respected in the community.

34. F lurett Fontaine is Respondent's office manager and

has been for six years. She has been in a position to observe

him closely. She stated that Respondent is a Christian, an

ethical, and moral man. She chose Respondent to counsel her son

when her son was arrested. She would not work for anyone she

could not trust.

35. Robin Steed is a sign language interpreter for the

deaf or hard of hearing for the Department of Education,

Vocational Rehabilitation, and has known Respondent for 15

years. She works with him when he evaluates and counsels deaf

or hard of hearing persons. She believes Respondent to be

sincere, generous, and trustworthy.

36. George Custred was a patient of Respondent before

Respondent's arrest and continues to be a patient of Re spondent.

Mr. Custred stated that he had experienced serious emotional

problems and that he would not be alive absent the professional

help he received from Respondent.

37. Bradford Guy is a vocational rehabilitation counselor

and has been for 25 ye ars. Mr. Guy said that Respondent was a

dedicated and thorough psychologist.

38. Kenneth Donnalley is a vocational rehabilitation

counselor who has known Respondent for nine years both

personally and professionally. Mr. Donnalley said that

Responde nt is an honest, caring person to whom he refers his

more clinically fragile clients because of Respondent's

understanding and because of the thoroughness of his

evaluations. He referred his 19 - year - old daughter to Respondent

and would do so again, if nec essary, despite his knowledge that

Respondent had been arrested.

39. Dr. Bill Spain is a chiropractor who has known

Respondent for about 20 years. They both attend the same church

and are members of a Wednesday morning bible class. He said

that Res pondent is a fine Christian.

40. Bonnie Brown is Respondent's second wife. She is a

middle school teacher and has known Respondent since 1985. She

married him in 1991. She said they enjoyed an excellent

marriage and stated that their relationship has grown stronger

since Respondent's arrest.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter. Section

120.57(1), Florida Statutes. The party seeking to prove the

affirmative of an issue has the burden of proof. Florida

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981); and Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

Therefore, the burden of proof is on Petitioner.

42. Because this case is penal in nature, the material

allegations set forth in the Administrative Complaint must be

proven by clear and convincing evidence. Department of Banking

and Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932

(Fla. 1996); and Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

43. The Board of Psychology is empowered to revoke,

suspend, or otherwise discipline the license of a psychologist

for a violation of Section 490.009(2)(c), Florida Statute s.

44. Section 490.009(1)(c) and (2)(c), Florida Statutes,

provides, in part, as follows:

(1) When the department or, in the case

of psychologists, the board finds that an

applicant, provisional licensee, or licensee

whom it regulates under this chapt er has

committed any of the acts set forth in

subsection (2), it may issue an order

imposing one or more of the following

penalties:

* * *

(c) Suspension for a period of up to 5

years or revocation of a license, after

hearing.

* * *

(2) T he following acts of a licensee,

provisional licensee, or applicant are

grounds for which the disciplinary actions

listed in subsection (1) may be taken:

* * *

(c) Being convicted or found guilty,

regardless of adjudication, of a crime in

any juri sdiction which directly relates to

the practice of his or her profession or the

ability to practice his or her profession.

A plea of nolo contendere creates a

rebuttable presumption of guilt of the

underlying criminal charges. However, the

board shall al low the person who is the

subject of the disciplinary proceeding to

present any evidence relevant to the

underlying charges and circumstances

surrounding the plea.

45. It is undisputed that Respondent was convicted of

indecent exposure in a public place and that he also pled guilty

to battery and resisting a law enforcement officer without

violence, offenses for which adjudication was withheld. The

pertinent question which remains is whether or not the facts

adduced demonstrate that he committed offense s which relate to

the practice of his profession or the ability to practice his

profession.

46. The offenses of battery and resisting a law

enforcement officer without violence, in the context of this

case, while unbecoming to a professional, nevertheless do not

relate to the practice of his profession or his ability to

practice his profession.

47. The offense of indecent exposure in a public place

relates to the practice of his profession. Dr. Stimel pointed

out that a psychologist needs to exhibit inte grity, good

judgment, and emotional stability in order to properly perform

the duties of a psychologist. Engaging in the public exhibition

of one's genitals does not demonstrate any of the foregoing

characteristics, and interferes with, or relates to the practice

of psychology.

48. Respondent's behavior on July 19, 2000, also relates

to the ability to practice his profession. As pointed out by

Dr. Stimel and Dr. Meyer, persons who engage in exhibitionism

have a propensity to continue to engage in such behavior.

Moreover, literature provided by Dr. Meyer, and discussed by

Dr. Meyer, indicates that as many as 35 percent of sex offenders

who committed hands - on sex crimes, engaged in hands - off sexual

activities prior to advancing to more serious offenses. A

psychologist has a great deal of control over the patients he or

she treats. This provides a fertile field for an exhibitionist

who may be tempted to escalate his activities.

49. Rule 64B19 - 17.002, Florida Administrative Code,

provides as follows:

(1) When the Board finds that an

applicant or a licensee has committed any of

the acts set forth in Section 490.009(2) or

456.072, F.S., it shall issue a final order

imposing appropriate penalties as

recommended in the following disciplinary

guidelines.

* * *

(c) Being convicted or found guilty of,

or entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of the licensee's profession or the

licensee's ability to practic e that

profession. The penalty shall be suspension

of license until such time as the licensee

can, to the Board's satisfaction,

demonstrate rehabilitation, and an

administrative fine not to exceed $10,000.

In the case of an applicant, the penalty

shall be from probation to permanent denial

of license, and an administrative fine not

to exceed $10,000.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED: That the Board of Psychology enter a final

order finding that Respondent committed a violation of Section

490.009(2)(c), Florida Statutes, by being convicted or having

been found guilty of a crime which directly relates to the

practice of his profession or the ability to practice his

profession, and that his license be suspended for one year, or a

lesser period of time should he demonstrate to the Board of

Psychology that he is rehabilitated.

DONE AND ENTERED this 27th day of February, 2002, in

Tallahassee, Leon County, Florida.

_________________________________ __

HARRY L. HOOPER

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 Cler k of the

Division of Administrative Hearings

this 27th day of February, 2002.

COPIES FURNISHED :

Paul Watson Lambert, Esquire

1203 Governors Square Boulevard

Magnolia Centre, Suite 102

Tallahassee, Florida 32311 - 2960

Mary Denise O'Brien, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 39

Tallahassee, Florida 32308

Dr. Kaye Howerton, Executive Director

Board of Psychology

Department of Health

4052 Bald Cypress Way, Bin C05

Tallahassee, Florida 32399 - 1701

William W. Large, Ge neral Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All p arties 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.