13-004668 Marion J. Gwizdala vs. Department Of Health, Board Of Clinical Social Work, Marriage And Family Therapy And Mental Health Counseling Status: Closed Recommended Order on Tuesday, April 29, 2014.

Summary: Evidence proved rehabilitation from 30-year-ago child molestation convictions and proved that mental health counselor intern license limited to treating adults did not present a dange to public health and safety.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION J. GWIZDALA,

Petitioner,

vs. Case No. 13 - 4668

DEPARTMENT OF HEALTH, BOARD OF

CLINICAL SOCIAL WORK, MARRIAGE

AND FAMILY THERAPY AND MENTAL

HEALTH COUNSELING,

Respondent.

___________________________ ____/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton , I I , of the

Division of Administrative Hearings (DOAH) heard this case by

video teleconference on February 11, 2014, at sites in Tampa,

Gainesville, and Tallahasse e, Florida.

APPEARANCES

For Petitioner: Marion Joseph Gwizdala, pro se

1003 Papaya Drive

Tampa, Florida 33619 - 4629

For Respondent: Robert Antonie Milne, Esquire

Office of the Attorney General

Plaza Level 01, The Capitol

Ta llahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Is Petitioner, Marion J. Gwizdala, entitled to issuance of

a license as a registered mental health counselor intern under

section 491.0 0 45, Florida Statutes (2013) . 1/

PRELIMINARY STATEMENT

On October 24, 2013, the Department of Health, Board of

Clinical Social Work, Marriage and Family Therapy and Mental

Health Counseling (Board) , denied Mr. Gwizdala ' s application for

licensure as a registered mental health counselor intern.

Mr. Gwizdala timely petit ioned for an administrative hearing

under section 120.57(1) , Florida Statutes. On December 3, 2013,

the Board referred the matter to DOAH to conduct an evidentiary

hearing and to issue a recommended order.

The final hearing was conducted by video teleconf erence at

sites in Tallahassee, Tampa, and Gainesville. From Tampa,

Mr. Gwizdala testified on his own behalf and presented the

testimony of Daryl Dowding, Ted Hull, Robin McKenzie, Sherrill

O ' Brien, and Virginia Walsh. Mr. Gwizdala ' s E xhibits 1

through 6 , 10A through 10E, 12, 14, and 15 were admitted into

evidence.

The Board presented the testimony of Dr. Peter A.D . Sherrard

from the Gainesville site. The Board ' s E xhibits 1 through 4 were

admitted into evidence.

The hearing T ranscript was filed with DOAH on February 25,

2014. The parties requested and received additional time to

submit their proposed recommended orders (PROs). The undersigned

considered the parties ' PROs in the preparation of this

Recommended Order.

FINDING S OF FACT

Based on the evide nce presented at the final hearing and on

the entire record of this proceeding, the following F indings of

F act are made:

1. Mr. Gwizdala seeks licensure as a registered mental

health counselor. Throughout the licensure process and in this

proceeding, Mr. Gwizdala has acknowledged that he has two

criminal convictions which may be grounds for denying his

licensure application. Throughout the process and this

proceeding, because of the convictions, Mr. Gwizdala has only

sought a license that limits him to s erving only adults.

2. On August 27, 2013, the Board issued a Notice of Intent

to Deny Mr. Gwizdala ' s application for licensure as a registered

mental health counselor intern because of the two criminal

convictions. The Board found that Mr. Gwizdala ' s cr imes directly

relate to the practice of , or the ability to practice , mental

health counseling, grounds for denial of a license under section

491.009(1)(c). 2/

3. The first crime resulted in a 1976 judgment against

Mr. Gwizdala based on his plea of guilty t o attempted lewd

assault on his neighbor, an 11 - year - old boy. Mr. Gwizdala

completed five years of probation for this offense.

4. The second crime resulted in a 1985 judgment against

Mr. Gwizdala based on his plea of guilty to two counts of lewd

assault on two boys under the age of 14. Mr. Gwizdala fondled,

masturbated in front of, and provided alcohol and pornography to

the two boys. He served six months of a one - year prison sentence

for that offense and spent another ten years on probation.

5. Mr. Gwizdala has not been convicted of any crime

since 1985.

6. As part of his sentence for the 1985 conviction,

Mr. Gwizdala completed three years of mandatory treatment at the

Florida Mental Health Institute ' s Center for the Prevention of

Child Molestation. He voluntarily underwent additional treatment

at the Sexual Abuse Treatment Center for approximately one and

one - half years. Mr. Gwizdala has not undergone any treatment

since. However, his later training in counseling involved

self - reflection similar to treatment.

7. In 1993, the Florida Department of Education, Division

of Blind Services (DBS), required Mr. Gwizdala to undergo a

mental health evaluation to determine whether DBS should fund his

education in counseling. Dr. Leo P. Cotter conducted the mental

health evaluation. The evaluation consisted of approximately

five hours of clinical interviews with Mr. Gwizdala and a review

of collateral materials. The materials included a letter of

recommendation from Sharon M. McElvoy, Sexual Abuse Treatmen t

Services ; results of a Minnesota Multiphasic Personality

Inventory T est administered to Mr. Gwizdala; and Mr. Gwizdala ' s

Department of Corrections file. At the time, Mr. Gwizdala was

under community supervision by the Department.

8. Dr. Cotter compile d a report of his findings. He noted

Mr. Gwizdala ' s " long history of sexually abusing children , " b ut

found that Mr. Gwizdala " appears now to have the coping skills to

deal with his personal problems in legal, healthy ways. "

Dr. Cotter concluded that Mr. Gwizdala ' s goal of becoming a

mental health counselor was " realistic, " provided that

Mr. Gwizdala limit ed his practice to adults and not treat

children under any circumstances. DBS provided Mr. Gwizdala ' s

funding for his counseling education.

9. Mr. Gwiz dala obtained his bachelor ' s degree in

psychology from the University of South Florida in 1993 and his

master ' s degree in counseling from Nova Southeastern University

in 1997.

10. Mr. Gwizdala has practiced as a hypnotherapist since

approximately 1994. H e restricts his practice to adults because

he knows it would be inappropriate for him to treat children.

11. Mr. Gwizdala has been active in community service for

many years. He founded and has worked extensively with the Tampa

chapter of the National F ederation of the Blind. He has also

volunteered with the National Association of Guide Dog Users.

12. At the National Federation of the Blind Florida State

Convention in 2007, which he helped host, Mr. Gwizdala initiated

a " safety plan " to ensure that he was never on the same floor as

any of the children attending the convention. That included

locating the children ' s activities and day care on a different

floor than the floor on which his activities occurred.

Mr. Gwizdala disclosed his past and arranged the " safety plan " on

his own.

13. Mr. Gwizdala has served as the music director for his

church since 2007. In August 2012, the church began to receive

emails regarding Mr. Gwizdala ' s past. In response, he

voluntarily suggested and , with the church , imp lemented a " safety

plan " to ensure that he was never alone with children. In

April 2013, Mr. Gwizdala and Reverend Virginia Walsh, his

employer at the church, disclosed his criminal past to the entire

congregation.

14. Reverend Walsh is not aware of any c omplaints about

Mr. Gwizdala ' s behavior during his time at the church.

15. Mr. Gwizdala has been open and honest about his

criminal history with friends, colleagues, employers, and his

wife. Testimony and letters of reference from several people

attest t o his good character. The recommendations from

Mr. Gwizdala ' s friends and associates are not superficial or

inconsequential. He has known or worked closely with them for

many years, in some cases as many as 20 years. The witnesses who

testified on his b ehalf uniformly claimed that Mr. Gwizdala had

never acted inappropriately around them. The references are

persuasive and credible.

16. In 2013, Mr. Gwizdala applied to the Board for

licensure as a registered mental health counselor intern. On his

appli cation, Mr. Gwizdala disclosed his convictions.

17. Because of his disclosure, the Board required

Mr. Gwizdala to submit documentation about his crimes and undergo

a mental health evaluation. The Board forwarded his file to the

Professional Resource Netwo rk (PRN), which referred Mr. Gwizdala

to Dr. Barbara Stein for evaluation. On July 9, 2013, Dr. Stein

interviewed Mr. Gwizdala for two and one - half hours, administered

two psychiatric tests, and referred Mr. Gwizdala for a polygraph

test and drug screenin g.

18. Dr. Stein compiled a report of her findings. She noted

that Mr. Gwizdala understood the influential and powerful role of

the therapist and knew it was wrong to have a sexual relationship

with a patient. Dr. Stein also noted that he was a bit unc lear

on the " do ' s and don ' ts " of non - sexual boundary crossing, like

hugging. She concluded that Mr. Gwizdala " does not currently

have any psychiatric impairment that prevents him from being able

to safely become licensed as a mental health counselor inter n

treating adults only . " Her report also suggested that

Mr. Gwizdala engage in a course on professional boundaries and

enter into a professional boundaries contract with PRN.

19. On August 27, 2013, the Board issued a Notice of Intent

to Deny Mr. Gwizdala ' s application for licensure based on his

criminal convictions. He appealed. On October 24, 2013,

Mr. Gwizdala appeared before the Board and presented evidence,

including the reports of Dr. Cotter and Dr. Stein. The Board

voted and split 4 - 4 , which uphe ld the Intent to Deny.

Mr. Gwizdala moved for reconsideration of that decision, which

the Board denied. This proceeding followed.

20. The Board does not maintain that Mr. Gwizdala is

otherwise unqualified for a license under the requirements of

section 4 91.0045.

21. Dr. Sherrard, the Board ' s expert and a former Board

member, testified at the final hearing that he would not grant

Mr. Gwizdala a license. He based his opinion on the reports

described above and their underlying documentation. Dr. Sherrard

was concerned about the possibility that Mr. Gwizdala might

succumb to a desire to offend again with children.

22. As Dr. Sherrard testified and Mr. Gwizdala

acknowledged, Mr. Gwizdala will always be vulnerable to the

motivations that drove him to commi t his crimes. Mr. Gwizdala ' s

awareness of those motivations helps him stay vigilant against

reoffending.

23. Dr. Sherrard fears that, i f licensed, Mr. Gwizdala

might put himself in a position to reoffend by treating children.

But, a s Dr. Sherrard testif ied, Mr. Gwizdala is not a high risk

to reoffend as recidivism rates for similarly - situated offenders

are generally low.

24. Dr. Sherrard described his apprehension like this:

Well, it [the risk of recidivism] doesn ' t

even have to be 18 percent. It could be

1 percent. I just would hope that he

wouldn ' t put himself back in that position

again, and my concern about granting the

license is that we helped to put him back in

that position again, partially because once

you have a license it does not -- inherentl y,

the license does not restrict your practice.

25. Dr. Sherrard credibly testified that Mr. Gwizdala

should have " additional insight as to what drives this behavior. "

26. Mr. Gwizdala has practiced as a hypnotherapist for

almost two decades without inc ident. He has limited his practice

to adults because, in his words , " it would just be simply -- to be

candid, it would be inappropriate for me to treat a child. "

27. Therapy is an intimate practice where patients are in

vulnerable positions. In therapy, th ere is a presumption of

safety. Maintaining trust and boundaries is paramount.

28. Mr. Gwizdala ' s crimes directly relate to the practice

of mental health counseling because they were committed against

vulnerable children and demonstrate repeated violati ons of trust

and boundaries.

29. Similarly, the tendencies that spurred Mr. Gwizdala ' s

criminal behavior undermine his ability to practice as a mental

health counselor intern without restrictions. Mr. Gwizdala is

not immune from those tendencies and doe s not think that he is.

If allowed to treat children, he represents a danger to the

public safety and welfare.

30. On the other hand , the evidence proves that

Mr. Gwizdala has conducted himself appropriately since his 1985

conviction. He has worked hard to turn his life around and has

demonstrated a commitment to bettering himself and helping

others. He is cognizant of his tendencies and the need to

restrict his interactions to adults. He has initiated measures

to avoid inappropriate situations and the appearance of

impropriety.

31. The weight of the credible, persuasive, and consistent

evidence establishes that Mr. Gwizdala does not present a threat

to the public health and safety of adults.

32. The weight of the credible, persuasive evidence proves

t hat Mr. Gwizdala is not a threat to the public safety under

appropriately restrictive conditions, including a prohibition on

treating or being in contact with minors.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over th e subject matter of and the parties to this

case. §§ 120.569 and 120.57(1), Fla. Stat.

34. Chapters 456 and 491, Florida Statutes, and Florida

Administrative Code C hapter 64B4 - 5 regulate mental health

counseling.

35. Section 491. 0 045 establishes the req uirements for

licensure as a mental health counselor intern and provides that

the Department of Health (Department) " shall register " an

applicant that satisfies the applicable provisions of sections

491. 0 045 and 491. 0 05.

36. Section 456.003(1) notes the L e gislature ' s intent " that

persons desiring to engage in any lawful profession regulated by

the [Department] shall be entitled to do so as a matter of right

if otherwise qualified. " Section 456.003(2) further describes

the L egislature ' s intent that such pro fessions are regulated to

preserve the public health, safety, and welfare.

37. Section 491.009(1) provides:

The following acts constitute grounds for

denial of a license or disciplinary action,

as specified in s. 456.072(2):

* * *

(c) Being convict ed 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.

38. Section 49 1.009(2) empowers the Department to deny

licensure or impose the penalties of section 456.072(2) on an

applicant who has violated section 491.009(1).

39. The Board may impose the following penalties under

section 456.072(2):

(a) Refusal to certify, or to certify with

restrictions, an application for a license .

* * *

(c) Restriction of practice or license,

including, but not limited to, restricting

the licensee from practicing in certain

settings, restricting the licensee to work

only under designat ed conditions or in

certain settings, restricting the licensee

from performing or providing designated

clinical and administrative services,

restricting the licensee from practicing more

than a designated number of hours, or any

other restriction found to be necessary for

the protection of the public health, safety,

and welfare.

40. Florida Administrative Code R ule 64B4 - 5.001(1)(c)

further provides that the Board shall, when it finds an applicant

has violated sections 456.072(1)(c) or 491.009(1)(c), impose

penalties ranging from a minimum of " $1,000 fine and probation "

to a maximum of " denial or $1,000 fine and permanent revocation "

for a first offense.

41. R ule 64B4 - 5.001(3) provides that the Board may deviate

from the penalties in rule 64B4 - 5.001(1)(c) ba sed on mitigating

or aggravating factors, including:

(a) The danger to the public;

(b) The length of time since the date of

the violation(s);

(c) Prior discipline imposed upon the

licensee;

(d) The length of time the licensee has

practiced;

(e) Th e actual damage, physical or

otherwise, to the patient;

(f) The deterrent effect of the penalty

imposed;

(g) The effect of the penalty upon the

licensee ' s livelihood;

(h) Any efforts for rehabilitation;

(i) The actual knowledge of the licensee

pert aining to the violation;

(j) Attempts by the licensee to correct or

stop violations or failure of the licensee

to correct or stop violations;

(k) Related violations against the licensee

in another state, including findings of

guilt or innocence, penalt ies imposed and

penalties served;

(l) Any other mitigating or aggravating

circumstances.

42. The Board bears the burden to present evidence that

Mr. Gwizdala committed a crime that makes him unfit for

licensing. Dep ' t of Banking & Fin., Div. of Sec. a nd Investor

Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996).

43. However, Mr. Gwizdala bears the burden of ultimate

persuasion to establish by a preponderance of the evidence that

he meets the requirements for licensure. See i d. ; Dep ' t of

Tr ansp. v. J.W.C. Co ., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

44. In Florida, licenses to practice are considered a

privilege granted by the State, not a right. See, e.g. , Lescher

v. Dep ' t of High . Saf . & Motor Veh . , 985 So. 2d 1078, 1084 (Fla.

2008); Bo rrego v. Ag. for Health Care Admin. , 675 So. 2d 666, 668

(Fla. 1st DCA 1996). As an administrative agency, the Board has

" particularly broad discretion in determining the fitness of

applicants who seek to engage in an occupation in the conduct of

which is a privilege rather than a right. " Osborne Stern & Co. ,

670 So. at 934 (citing Osborne Stern & Co. v. Dep ' t of Banking &

Fin. , 647 So. 2d 245 (Fla. 1st DCA 1994)(Booth, J., concurring

and dissenting)).

45. As noted in the Findings of Facts, the Board pres ented

evidence sufficient to establish that Mr. Gwizdala committed

crimes that directly relate to the practice of mental health

counseling. Because of the youth of the victims, the crimes

inherently involved the exploitation of vulnerability, violations

o f trust, and inappropriate boundary crossing . Maintenance of

boundaries and trust is imperative in therapy.

46. The crimes also directly relate to Mr. Gwizdala ' s

ability to practice as a mental health counselor intern because

they stem from tendencies, ac knowledged by Mr. Gwizdala, that

threaten the public safety and welfare , if left unchecked.

Mental health care professionals are licensed to help preserve

the public health, safety, and welfare. § 491.002, Fla. Stat.

47. Mr. Gwizdala argues that his conv ictions do not

directly relate to mental health counseling because there is no

" proximate, immediate, or unambiguous connection. " Section

491.009(1)(c), however, is not limited to crimes that are

committed during the practice of mental health counseling o r that

are related to the technical ability to practice mental health

counseling. In a license revocation case under the related

provision of section 456.072(1)(c), the First District Court of

Appeal stated :

Several cases demonstrate that, although the

s tatutory definition of a particular

profession does not specifically refer to

acts involved in the crime committed, the

crime may nevertheless relate to the

profession. In Greenwald v. Department of

Professional Regulation , the court affirmed

the revocati on of a medical doctor ' s license

after the doctor was convicted of

solicitation to commit first - degree murder.

501 So. 2d 740 (Fla. 3d DCA 1987) . The Fifth

District Court of Appeal has held that

although an accountant ' s fraudulent acts

involving gambling did not relate to his

technical ability to practice public

accounting, the acts did justify revocation

of the accountant ' s license for being

convicted of a crime that directly relates to

the practice of public accounting. Ashe v.

Dep ' t of Prof ' l Regulatio n, Bd. of

Accountancy , 467 So. 2d 814 (Fla. 5th DCA

1985) . We held in Rush v. Department of

Professional Regulation, Board of Podiatry ,

that a conviction for conspiracy to import

marijuana is directly related to the practice

or ability to practice podiatr y. 448 So. 2d

26 (Fla. 1st DCA 1984) . These cases

demonstrate, in our view, that appellee did

not err by concluding Doll ' s conviction was

" related to " the practice of chiropractic

medicine or the ability to practice

chiropractic medicine. We therefore a ffirm

appellee ' s actions finding appellant in

violation of section 456.072(1)(c) and

revoking appellant ' s license.

Doll v. Dep ' t of Health , 969 So. 2d 1103, 1106 (Fla. 1st DCA

2007)( upholding the revocation of a license to practice

chiropractic medicine b ased on a conviction for conspiracy to

defraud a health beneficiary program under 18 U.S.C. sections 371

and 1347 ).

48. In Rush v. Dep artment of Prof essional Regulation, B oard

of Podiatry , 448 So. 2d 26, 27 Î 28 (Fla. 1st DCA 1984), the First

District found that conspiracy to import marijuana directly

related t o the practice of podiatry, even though it was not

related to the appellant ' s technical ability to practice

podiatry, because the crime represented a threat to the public

health and welfare.

49. In another case, an Administrative Law Judge

recommended de nial of petitioner ' s application for a license as a

registered pharmacy technician because petitioner ' s conviction of

unlawful sexual activity with a minor directly related to her

ability to practice. Donald v. Bd. of Pharm. , Case No. 10 - 0857

(Fla. DOAH J une 30, 2010).

50. Mr. Gwizdala also asserts that his convictions do not

directly relate to mental health counseling , in part , because he

is willing to accept a restriction on his license limiting his

practice to adults only. However, the Board is authori zed to

place restrictions on a license only when the licensee has

violated a provision of section 456.072 or 491.009. See

§§ 456.072(2) and 491.009(2) , Fla. Stat . If Mr. Gwizdala ' s

crimes were unrelated to mental health counseling, it would not

be necess ary nor would the Board be authorized to restrict his

license and practice to adults.

51. Additionally, Mr. Gwizdala argues that his convictions

do not violate the provisions of section 456.0635. This section

requires the Board to deny licensure to appl icants convicted of

specific statutory crimes, subject to certain conditions. This

section does not apply. The Board does not assert that

Mr. Gwizdala was convicted of the listed offenses. Section

456.0635 does not affect the Board ' s authority under sec tion

491.009(1)(c).

52. In his PRO, Mr. Gwizdala cites a guidance document

from the Equal Employment Opportunity Commission related to

consideration of conviction records in hiring. As this is

a licensure case unrelated to hiring, the document is not

r elevant.

53. At the hearing, the Board argued that the undersigned

may not consider whether the Board should issue a license subject

to restrictions. The Board did not reassert this argument in

its PRO. In any event, this proceeding is a de novo

dete rmination, see section 120.57(1)(k), of whether Mr. Gwizdala

is entitled to a license. Neither the Florida Statutes nor the

Florida Administrative Code prohibits an Administrative Law Judge

from recommending issuance of a license subject to conditions.

54. The Board may approve Mr. Gwizdala ' s application for

licensure subject to restrictions necessary to protect the public

health, safety, and welfare. It is not required to do so. See

§§ 491.009(2) and 456.072(2), Fla. Stat.

55. In determining the c orrect penalty for a violation of

491.009(1)(c), the Board may, but is not required, to consider

mitigating and aggravating circumstances. See Fl a. Admin . Code

R . 64B4 - 5.001(3). Here, mitigating circumstances include the

length of time since Mr. Gwizdala ' s last conviction, his efforts

at rehabilitation, the effect of denial on his livelihood, and

his positive involvement with community service. Aggravating

factors include the youth of his victims in multiple incidents

and the potential danger to the publ ic.

56. Section 456.072(2) allows the Board to issue a

restricted license. The following restrictions on Mr. Gwizdala

will protect the health and safety of the public:

A. Restrict Mr. Gwizdala ' s practice to adults

only and prohibit practice in any sett ing involving

minors;

B. Require Mr. Gwizdala to enter a professional

boundaries contract with PRN, with duration and

monitoring to be determined by PRN;

C. Require Mr. Gwizdala to successfully complete

a comprehensive course on professional boundaries.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that t he Board issue a final order

granting Mr. Gwizdala a license to practice subject to these

restrictions:

A. Restrict Mr. Gwizdala ' s practice to adults on ly and

prohibit practice in any setting involving minors;

B. Require Mr. Gwizdala to enter a professional boundaries

contract with PRN, with duration and monitoring to be determined

by PRN;

C. Require Mr. Gwizdala to successfully complete a

comprehensive course on professional boundaries.

DONE AND ENTERED this 29th day of April , 2014 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of April , 2014 .

ENDNOTE S

1/ All references to the Florida Statutes are to the 2013

codification.

2/ The Notice of Intent to Deny incorrectly cites to section

491.009(2)(c).

COPIES FURNISHED:

Susan Foster, Executive Director

Board of Clinical Social Work, et al.

Department of Health

4052 Bald Cypre ss Way, Bin C - 08

Tallahassee, Florida 32399 - 3258

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

Marion Joseph Gwizdala

1003 Papaya Drive

Tampa, Florida 33619 - 4629

Robert Antonie Milne, Esquire

Office of t he Attorney General

Plaza Level 01, The Capitol

Tallahassee, Florida 32399 - 1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recomme nded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.