20-000447PL Department Of Health, Board Of Psychology vs. Isaac A. Levinsky, Ph.D. Status: Closed Recommended Order on Friday, October 23, 2020.

Summary: Petitioner proved by clear and convincing evidence that Respondent's crime related to practice of psychology. Recommend revocation of Respondent's license.

S TATEMENT OF T HE I SSUE S

Whether Respondent violated section 456.072(1)(c), Florida Statutes, as

alleged in the Administrative Complaint; and if so , what is the appropriate

penalty.

P RELIMINARY S TATEMENT

On March 11, 2019, the Department of Health, Board of Psychology

(“Petitioner” or “the Department”), filed a one - count Administrative

Complaint alleging Isaac Levinsky, Ph.D. (“Respondent” or “Dr. Le vin sky”)

violated section 456.072(1)(c), Florida Statutes (2018), by entering a plea of

nolo contendere to Contribut[ing] to Delinque ncy of a Minor or Child. On

April 5, 2019, Respondent disputed the allegations in the Administrative

Complaint and generall y alleged the Department’s failure to provide 20 days

to respond to the investigative file before seeking a probable cause

determination regarding the allegations. Respondent d id not file a Motion to

Dismiss and , he did not offer any evidence at hearing re garding the issue.

T hus, t he issue is considered abandoned . Respondent requested a hearing

involving disputed issues of material fact. On April 15, 2019, the Department referred this matter to the Division and it was assigned to the undersigned.

The under signed issued a Notice of Hearing scheduling this case for

March 31, 2020. On February 27, 2020, Respondent filed an Unopposed

Motion to Continue Final Hearing seeking a continuance because Respondent’s new counsel required additional time to evaluate the case, which the undersigned granted. The undersigned rescheduled this case for

May 29, 2020. The parties s ubsequently filed two additional Motions to

Continue Final Hearing due to matters related to the COVID - 19 pandemic.

This matter was ultimately resched uled for July 27, 2020 , and it commenced

as scheduled.

The parties filed a Joint Written Statement on July 2, 2020, containing

factual stipulations that have been incorporated i nto the Findings of Fact

below, to the extent relevant.

At the hearing, Join t Exhibits 1 through 5 and 7 through 12 were

admitted into evidence. Petitioner’s Exhibit 1 was admitted over objection.

Petitioner presented the testimony of Carolyn Stimel, Ph.D., ABPP (expert) ,

and Agent Alexander Sorokin (by Deposition). Respondent tes tified on his

own behalf and presented the testimony of Duncan Bowen, Ph.D. (expert);

Robert W. Stewart, Ph.D. (his employer); Bruce Levinsky (his father); and

Helene Levinsky (his mother). Respondent did not offer any exhibits, other

than the joint exhibi ts.

During preliminary matters, Petitioner argued in support of its Motion for

Official Recognition, which the undersigned denied. At th e conclusion of the

hearing, Petitioner sought to offer the deposition of Dr. James A. Hunt,

Respondent’s treating phy sician. Since this was the first time the issue was

raised, the parties were directed to file memoranda of law regarding whether

Petitioner could offer the deposition of Dr. Hunt as an expert witness no later

than August 7, 2020. Respondent withdrew his ob jection on August 7, 2020.

Petitioner filed the deposition of Dr. Hunt on August 12, 2020 , which was

identified as Petitioner’s Exhibit 2 . O n August 14, 2020 , t he undersigned

closed the record in this matter.

The two - volume Transcript of the proceeding was filed with DOAH on

September 8 , 2020. Thus, the deadline for proposed recommended o rders

(“PROs”) was September 18, 2020. Petitioner timely filed its PRO. On

September 21, 2020, Respondent filed his PRO. Given there was no objection

by Petitioner or de monstration of prejudic e to Petitioner, both PROs have

been considered in preparation of this Recommended Order.

This proceeding is governed by the law in effect at the time of the

commission of the acts alleged to warrant discipline. See McCloskey v. Dep’ t of

Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA 2013). Thus, references to statutes

are to Florida Statutes (2018), unless otherwise noted.

F INDINGS OF F ACT

The following Findings of F act are based on the testimony and

documentary evidence presented at the final hearing , and the entire record of

this proceeding .

Parties

1. The Department is t he state agency charged with licensing and

regulation of healthcare professionals pursua nt to section 20.43 and

chapter 456 , Florida Statutes . The Board of Psychology is the professional

licensing board charged with final agency actio n related to discipline against

psychologists pursuant to chapter 490 , Florida Statutes.

2. At all times material to the allegations in the Administrative

Complaint, Respon dent was license d as a psychologist by the State of Florida,

having bee n issued license number PY 9171 .

Underlying Criminal Case

3. On or about April 26, 2017, two images of suspected child pornography

were uploaded to the cloud storage associated with mobile phone numbe r

321 - 890 - 7266.

4. That event prompted Synchronoss Technologies to report this

information to the National Center for Missing and Exploited Children

(“NCMEC”) 1 . Synchronoss Technologies provides cloud and digital storage for

Verizon cell phone subscriber s . On May 9, 2017, NCMEC f orwarded that

1 NCMEC is an organization that maintains databases of material that has been identif ied

through law enforcement as child abuse material. It assists law enforcement and other

agencies with locating missing children.

information as a CyberT ip to Brevard County Sheriff’s Office (“BCSO”) . The

CyberT ip included the suspected pornographic images.

5. The BCSO Special Victim’s Unit, which investigates online exploitation

and abuse of children , investigated the case. Agent Sorokin, a law

enforcement officer with extensive experience investigating crimes involving

child exploitation and child pornography, w as assigned to investigate the

CyberT ip.

6. Agent Sorokin reviewed the two images provided with the CyberT ip

and confirmed they were sexually explicit pornographic images depicting

minor girls between the ages of 11 and 13 with exposed genitalia . 2 Agent

Sorokin then issued a subpoena to Verizon a nd Synchronoss Technologies

for the mobi le phone number , 321 - 890 - 7266 , to identify the subscriber of the

phone that uploaded the pornographic images . Verizon identified the

ac count subscriber as Respondent , and provided Respondent’s address of

1323 Brumpton Place, Rockledge, Florida.

7. On Apri l 13, 2018, Agent S or okin conducted an interview with

Respondent at his then - office , located a t the VA clinic. During that interview,

post - M iranda, Respondent admitted that he uploaded the images of the girls

using the application Bit Torrent and subsequent ly deleted them. H e then

initialed the images signifyi ng that he recognized them as the images he

uploaded . 3 Respondent wrote an apology letter in which, among other things,

he stated, “I am sorry I viewed anything and I am sorry to you and your families. You did not do anything wrong you were not at fault.”

2 Child pornography is defined as any image depicting a minor engaged in sexual conduct.

§ 847.001(3), Fla. Stat. Sexual conduct is defined as actual … lewd exhibition of the genitals.

§ § 827.01(1)(h) and 847.001(16), Fla. Stat.

3 Respondent signed the card acknowledging he understood his Miranda rights. He then

made a series of voluntary admissions to Agent S orokin. For instance, when asked how he

recognized the images , Respondent stated that the images were on his phone ; and when

asked the ages of the girls in the images, Respondent stated the girls were 11 or 12 .

8. With Respondent ’s consent , Agent Sorokin took possession of

Respondent’s cell phone. After obtaining a search warrant, BCSO

investigators searched his phone. A subsequent forensic analysis of the phone

revealed that the phone contained a web history with search terms including

“ innocent_girl2 at Chaturbate: full naked , ” and “ seventeen - excuse me

13 - P ornhub.com. ” The web book marks included a URL address titled “ Child

Psychologist Salary and Job Info rmation . ” The search did not reveal any

pornographic images of children on Respondent’s phone as he had deleted the

images.

9. On June 21, 2018, pursuant to an arrest warrant, Respondent was

arrested for two counts of possession of child pornography. O n August 28,

2018, the State Attorney for the Eighteenth Judicial Circuit filed a two - count

Information in Case No. 18 - CF - 033336 ag ainst Respondent, alleging

Respondent contributed to the delinquency or dependency of a minor, namely allowing and/or encoura ging the s exual exploitation of a child.

10. On September 21, 2018, Resp ondent ple d nolo contendere to two

counts of contributing to the delinquency or dependency of a minor, in

violation of section 827.04(1)(a), Florida S tatutes, with adjudication

withhel d.

4 He was sente nced to two years of probation, one year for each

count .

11. Although Respondent was not required to register as a sex offender, he

was required to undergo sex offender counseling. Specifically, t he sentence

required that Respondent not hav e contact or overnight visits with children

under age 18. Additional conditions of supervision included: no working or

volunteering at any place where children under age 18 congregate; no viewing , accessing, owning , or possessing any obscene, pornographic, or

4 The Administrative Complaint alleged “On o r about September 21, 2018, Respondent plead

nolo contendere to one count of Contribute to Delinquent Dependency of Minor or Child, in

the County Court, in and for Brevard County, Florida, Case No. : 2018 - MM - 33336.” The

reference to one count instead of two counts appears to be a typographical error as the

overwhelming evidence in the record reflects Respondent was charge d with two counts of the

crime. The typogra phical error does not impact the outcome of this matter.

sexually stimulat ing visual or auditory material; a ctive participation and

successful completion of a sexual offense treatment program ; and continued

psychiatric treatment, including medication management and therap y.

Respondent completed t he terms of his sentence and probation early.

12. There is no dispute that Respondent ple d nolo contendere to a criminal

offense. The question remains whether that crime relates to the practice of

psychology. The Department’s expert, Dr. Carolyn S timel , answered this

question in the affirmative.

Expert Testimony

13. Dr. Stimel, a practicing psychologist, has been licensed in the state of

Florida for m ore than 30 years. Dr. Stimel has been board certified by the

American Board of Professional Psychology and Forensic Psychology since

1989. Forensic psychology is the intersection between psychology and criminal legal matters. In addition to her private practice, Dr. Stimel works

with the Jimmy Ryce program for sexually violent predators. Dr. Stimel’s respo n sibilities w orking with the Jimmy Ryce program includes assessing

whether a person should be tried as a sexually violent predator. Through her

work with the program, s he has evaluat ed and treated sex offenders for

criminal cases .

14. In preparation for her testimony , Dr. Stimel relied upon the pertinent

evaluatio ns, interview of Respondent by A gent Sorokin, criminal records, and

relevant depositions. More importantly, she also relied upon her observation

of the full hearing to formulate her opinion. Dr. Stimel opined t hat

downloading child pornography a s related to the practice of psychology

requires trust, good judgment and integrity, ability to establish appropriate

boundaries, ability to control impulses , and ability to behave appropriately

and responsibly.

15. Dr . Stimel’s opinion of Respondent’s poor judgment did not change

when she learned that Respondent had voluntarily deleted the pornographic

images from his phone. In addition to the serious judgment lapse ,

Respondent’s behavior was a significant breach of pu blic trust.

16. As stated by D r. Stimel, the qualities essential to the practice of

psychology include goo d judgment and trustworthiness. Respondent’s poor

judgment and an in ability to be boundary - observant poses a high risk of

Respondent engaging in fu rther sexual offenses involving children.

Respondent’s viewing child pornography, even if for a brief moment,

demonstrates a disregard for a vulnerable population of society.

17. Respondent contends that he should be able to continue practicing

psychology because he does not pose a threat to children. T o support his

argument that he does not pose a threat to children , Respondent offered the

testimony of D r. Duncan Bowen, a licensed me ntal health counselor. On

October 9 , 2018, Dr. Bowen performed a risk ass essment of Respondent and

concluded that Respondent does not pose a risk of emotional or physical harm

to children. On April 8, 2020 , Dr. Bowen performed a psychosexual

evaluation of Respondent and opined that Respondent may return to the practice of psych ology safely. While Dr. Bowen has conducte d evaluations to

determine the ability of professionals to return to work, namely law

enforcement, aviators, and department of defense personnel, he has not

conducted evaluations of health care professionals. Moreov er, given that

Dr. Bowen is not a lice nsed psychologist, Dr. Bowen could not offer an opinion

on whether Respondent ’s crime (s) relates to the practice of psychology.

18. Respondent saw Dr. James Hunt for psychiatric sexual offender

treatment , which was ordered by the court. Dr. Hunt was also Respondent’s

treating psychiatrist before the court ordered treatment. Respondent

admitted to Dr. Hunt that he looked at child pornography and indicated that

he committed the act because of obsessi ve compulsive disor der (“OCD”).

Dr. Hunt ultimately concluded that Respondent had a compulsion to check

the website depicting child pornography as a symptom of OCD and p rescribed

Luvox to tr eat the compulsive behaviors. Dr. Hunt testified that Respondent

should remain on Luv ox inde finitely; otherwise , he would risk viewing child

pornography again.

Testimony of Lay Witnesses

19. While Respondent contends that he should still be permitted to

continue to practice psychology because he only treats adults; that factor does

not e rase t he presence of children from the practice setting. For instance,

Dr. Stewart, Respondent’s employer and a licensed clinical so cial worker,

treats patients as young as five year s old. As a result, there are times

children or adolescents may be in the waiting room before their appointment.

In addition, a p sychology license is a general license that is not restricted to

any specific group of people. The licensee may see children or may be retained

to see a family that includes children.

20. Although, Dr . Stewart testified he had no conce rns about the safety of

patients, he installed a security system after Respondent began working at

his office. He also testified that he believed Respondent could continue to

practice psychology safely. However, Dr. Stewa rt is not a licensed

psychologist so his opinion does not have much weight, if any, on

Respondent’s ability to practice safely.

21. In support of Respondent, Dr. Stewart testified that Respondent is

well thought of in the community and is gentle with pat ients. A s expected ,

Respondent’s parents, Bruce and Helene Levin sky, also offered support.

Mrs. Levinsky described her son as being compassionate and empathetic

toward others. She also testified that he would not be a danger to children. Respondent’s fathe r, Bruce Levinsky, joined his wife in support of their son

by testifying that he is a caring psychologist.

Allegations of Coerced Confession

22. At hearing, Respondent testified that his confession was coerced by

Agent Sorokin, and he actually did not do wnload child pornography.

Respondent testified that A gent Sorokin coerced him to give a false

confession through the use of intimidating tactics. Ag ent Sorokin did not

testify in person and , thus, was unable to defend himself against

Respondent’s claims at the hearing .

23. However, the undersigned carefully observed the demeanor of

Respondent as he testified and carefully reviewed the record regarding all

aspects of this case, including the circumstances surrounding the alleged

false confession. Based on t he circumstances, namely the recorded interview ;

identifying information associating Respondent with the phone used to

upload the images; Respondent’s motivation to cast the events in a particular

light; 5 and the number of admissions Respondent mad e to oth ers besides

A gent Sorokin, it i s determined that Respondent’s claim of a coerced

confession is not supported by the record. 6 Likewise, the undersigned finds

Respondent’s denial that he downloaded c hild pornography is not credible .

24. Respond ent’s denial was not credited based on more credible evidence

discovered during the criminal investigation. Furtherm ore, his credibility

was diminished by deceptive testimony at hearing. For example , Respondent

testified that he was not aware that he had a right to an attorney during a

criminal interrogation and claimed that A gent Sorokin did not read him his

Miranda rights. When confronted with the tr anscript of the interview, he

acknowledged that A gent Sorokin read his Miranda rights. The undersigned’s

review of the t ranscript and audio recording revealed that the agent read

Miranda rights to Respondent and Respondent acknowledged his

understanding of those rights verbally and in writing by in i tialing the card

with Miranda warnings .

5 Dr. Stimel testified that most peo ple accused of a sexual offense attempt to minimize, deny ,

or rationalize their actions.

6 In his recorded statement , he verbally admitted to downloading and viewing the

pornographic images of two prepubescent girls. He wrote an open letter apologizing to th e

persons depicted in the images. During his visits with Dr. Hunt, he admitted that he viewed

the images due to OCD and there was no reference to him being coerced into the statement

until a year later. For instance , on July 11, 2018, Respondent reported t o Dr. Hunt that he

had to watch [child pornography] because of his OCD.

25. In a nother example, Respondent admitted to Dr. Bowen and Dr. Hunt ,

who were tasked with evaluating him, that he downloaded and viewed child

p ornography, and he later testified at hearing that he did not provide

truthful i nformation to those evaluators.

26. Despite the Respondent’s con tention that A gent Sorokin coerced him

to confess , t he alleged false confession has not been considered with respect

to whether Respondent committed the violations alleged in the

Administrative Complaint . The undersigned is charged with assessing

whether t he crime to which Respondent pled nolo contendere relates to the

practice of psychology, and not to tr y the underlying criminal case ( nor does

the Division have jurisdicti on to reconsider the findings of those criminal

allegations in this proceeding) . The evidence of record contains clear and

convincing evidence that Respondent’s crime relates to the practice of

psychology .

27. In addition to the other findings herein, the undersigned finds

Respondent did not access the two images while physically at work and the

images did not depict a known patient, or family member of a patient.

Respondent’s license has never been disciplined.

Ultimate Findings of Fact

28. Dr. Stimel credibly opined that t he crime of contributing to the

delinquency of a minor relate s to the practice of psychology because it

demonstrates that the psychologist lacks good judgment and trustworthiness ,

and lacks an in ability to be boundary - observant .

29. The undersigned also finds , by clear and convincing evidence, that

Respondent’s plea of nolo contendere to two counts of contributing to the delinquency of a minor by downloading child pornography, is related to the

practice of psychology.

C ONCLUSIONS OF L AW

30. The Div ision has jurisdiction over the parties and the subject matter of

thi s proceeding. §§ 456.073(5), 120.569, and 120.57(1), Fla. Stat . (2020 )

31. The Department has authority to investigate and file administrative

complaints charging violation s of the laws governing psychologists . § 456.073,

Fla. Stat.

32 . This is a proceedi ng in which the Department seeks to impose

discipline against Respondent’s license to practice psychology. Thus, t he

Department bears the burden of proving the specific allegations that support

the charges alleged in the Administrative Complaint by clear a nd convincing

evidence. Dep’t of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987); Fox v. Dep't of Health , 994 So. 2d 416 (Fla. 1st DCA 2008); Pou v. Dep’t

of Ins . & Treas . , 707 So. 2d 941 (Fla. 3d DCA 1998).

33 . 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 ). As stated

by the Supreme Court of Florida, t he clear and convincing evidence level of

proof:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly remembered; t he 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 t he truth of the allegations

sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla . 1994) (quoting Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re

Henson , 913 So. 2d 579, 590 ( Fla. 2005). “ Although this standard of

p roof may be met where the evidence is in conflict, it seems to precl ude

evidence that is ambiguous.” Westinghouse Electric Corp. v. Shuler

Bros. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

34 . A proceeding to suspend, revoke, or impose other discipline

upon a license is penal in nature. State ex rel. Vining v. Fla. Real

Estate Comm'n , 281 So. 2d 487, 491 (Fla. 1973). Penal statutes must

be construed in terms of their literal meaning and words used by the

Legislature may not be expanded to broaden the applica tion of such

statutes. Thus, the provisions of law upon which this disciplinary

action has been brought must be strictly construed, with any

ambiguity construed against Petitioner. Elmariah v. Dep’t of Prof’l

Reg. , Bd of Med., 574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also

Griffis v. Fish & Wildlife Conserv. Comm'n , 57 So. 3d 929, 931 (Fla. 1st

DCA 2011); Beckett v. Dep’t of Fin. Servs. , 982 So. 2d 94, 100 (Fla. 1st

DCA 2008); Whitaker v. Dep’t of Ins. & Treas. , 680 So. 2d 528, 531

(Fla. 1st DCA 1996); D yer v. Dep’t of Ins. & Treas . , 585 So. 2d 1009,

1013 (Fla. 1st DCA 1991).

35 . The allegations of fact set forth in the Administrative

Complaint are the grounds upon which this proceeding is predicated.

Trevisani v. Dep’t of Health , 908 So. 2d 1108, 1109 ( Fla. 1st DCA 2005);

see also Cottrill v. Dep’t of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA

1996). Thus, the scope of this proceeding is properly restricted to those matters as framed by Petitioner. M.H. v. Dep’t of Child. & Fam. Servs. ,

977 So. 2d 755, 76 3 (Fla. 2d DCA 2008).

36 . The Administrative Complaint cha rged Respondent with violating

s ection 456.072(1)(c),

by pleading nolo conte ndere to the crime of contribut[ing]

to the delinquency of a minor or c hild, which, when it relates to downloading child

pornography, is related to the practice of psychology. Section 456.072(1)(c)

provides in pertinent part :

(1) The following acts shall constitute grounds for

which the disciplinary actions specified in subsection (2) may be taken:

* * *

(c) Being convict ed or found guilty of, or entering a

plea of guilty or nolo contendere to, regardless of

adjudication, a crime in any jurisdiction which

relates to the practice of, or the ability to practice, a licensee’s profession.

37 . As set forth in the Findings of Fact herein, the act that reflects lack of

trust and poor judgment was Respondent downloading child porn o graphy .

Thus, Petitioner proved that Respondent violated sections 456.072(1)(c), as

alleged in the Administrative Complaint.

38 . Whether a particular crime is related to a profession is not limited to

its connection to the technical ability to practice the profession. As stated by the First District:

Several cases demonstrate that, although the

statutory definition of a particular profession does

not sp ecifically 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

revocation of a medical doctor's license after the

doctor was convi cted 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 a ccounting, 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 Regulation, 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 a bility to practice podiatry. 448 So. 2d 26 (Fla. 1st

DCA 1984). These cases demonstrate, in our view,

that appellee did not err by concluding

[Respondent’s] conviction was “related to” the

practice of chiropractic medicine or the ability to

practice chiropractic medicine.

Doll v. Dep’t of Health , 969 So. 2d 1103, 1106 (Fla. 1st DCA 2007).

39 . The same analysis applies to th e crime to which Respondent ple d nolo

contendere. Dr. Stimel opined that Respondent lacked the ability to be

boundary - observant, lacked trustworthiness, and lacked good judgment. The

F indings of F act support the undersign ed’s conclusion that Respondent

violated section 456.072(1)(c), by pleading nolo contendere to contributing to

the delinquency of a minor or child, which relates to the practice of psychology.

40 . Pursuant to section 45 6.072(2), the Board of Psychology h as adopted

disciplinary guidelines for penalties imposed for violations of section 456.072.

41 . The range of penalties for a violat ion of section 456.072(1)(c), is as

follows : from s uspension and a fine up to $10,000.00 to r evocation . Fla.

Admin. Cod e R. 64B19 - 17.002 .

7

42 . The rules also provide aggravating and mitigating circumstances to

consider should the recommended penalty fall outs ide the disciplinary

guidelines as follows:

(2) Based upon consideration of aggravating and

mitigating factors present in an individual case, the

Board may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating circumstances the following:

(a) The danger to the public;

(b) The length of time since the date of violation;

(c) Th e number of complaints filed against the

licensee;

7 The guidelines in effect at the time of Respondent’s plea were those effective on June 21, 2017 . Despite

the correct date of the appropriate guidelines, the penalty provided in the D epartment’s PRO reflects the

range for guideli nes that became effective on June 20, 2018 .

(d) The length of time the licensee has practiced

without complaint or violations;

(e) The actual damage, physical or otherwise, to the

patient;

(f) The deterrent effect of the penalty imposed;

(g) The eff ect of the penalty upon the licensee’s

livelihood;

(h) Any efforts the licensee has made toward rehabilitation;

(i) The actual knowledge of the licensee pertaining to the violation;

(j) Attempts by the licensee to correct or stop

violations or refusal by t he licensee to correct or

stop violations;

(k) Related violations found against the licensee in

another state including findings of guilt or innocence, penalties imposed and penalties served;

and

(l) Any other mitigating or aggravating circumstances that a re particular to that licensee

or to the situation so long as the aggravating or

mitigating circumstances are articulated in the

Board’s final order.

43 . Regarding the appropriate penalty, Respondent argued in his PRO the

following:

70. However, signifi cant precedent exists with

regard to an appropriate penalty in this matter should a violation be found. In Department of Health, Board of Psychology v. Brown, DOAH Case

No 01 - 4192, June 18, 2002 , a psychologist pleaded

guilty to battery and resisting an of ficer without

violence, and pleaded no contest to the offense of

indecent exposure in a public place. In that case,

the Respondent removed his penis from his

trousers by a condominium pool and shook it while in the presence of two women. He whistled at the two women to get their attention while shaking his penis. Upon seeing Respondent’s actions, they

yelled and he attempted to flee the area, only to be

intercepted by a local police officer. Dr. Brown was evaluated by a psychologist and diagnosed with exhib itionism, a condition wherein the afflicted

person derives sexual excitement from displaying

their genitals to unsuspecting or unwilling observers. The Department eventually filed an

administrative complaint alleging a violation of §

490.009(2)(c), Fla. St at., for being found guilty of a

crime directly related to the practice of his profession.

71. The Department’s expert witness in that matter was Dr. Carolyn Stimel. Dr. Stimel, who did not examine Respondent, testified that Brown was mentally unfit to p ractice psychology at the time,

as she believed that someone having psychological, emotional, or sexual problems which affect their ability to work effectively with patients is not mentally fit to practice psychology. Despite this opinion and Brown’s uncon tested diagnosis with a

sexual disorder, his license was suspended for one

year or a lesser period of time if he could show the Board he was rehabilitated.

44 . Here, the facts involve child pornography where c hildren were

exploited, which was not the cas e in Department of Health, Board of

Psychology v. Brown. Further, Respondent refuses to accept

responsibility for his actions and has since denied he committed the

act s , which would make it difficult for Respondent to show he has been

rehabilitated.

45 . R espondent offered two other cases as comparators. However,

both cases are also factually dissimilar from this case and , thus, are

not persuasive as a comparator for the appropriate penalty for

Respondent. See Dep’ t of Health v. Cohen , M.D. , Case No. 10 - 310 1PL

(Fla. DOAH Sept. 14, 2010; Fl a. DOH Jan. 5, 2011 )(medical doctor was

found guilty of nonconsensual sexual misconduct with a patient and the board imposed suspension followed by two years of probation ) ;

Dep’ t of Health, Board of Osteopathic Medicine v. David Simon, D.O. ,

Case No. 13 - 4756 (Fla. DOAH July 30 , 2014 ; Fla. DOH Dec. 31,

2014 )( osteopathic physician found to have committed consensual

sexual misconduct with a patient over the course of a year and Board

imposed probation for two years and PRN part icipation).

46 . The closest comparator analogous to the matter involving Respondent

is Department of Health v. Christopher Carter, M.D. , Case No. 12 - 1575 PL

(Fla. DOAH Nov. 26, 2012; Fla. DOH Feb. 12, 2013). In that case, the

Administrative Complaint all eged Respondent knowingly possessed material

containing images of child pornography, which included “visual depictions of

sexually explicit conduct, the production of which involved the use of minors

engaging in sexually explicit conduct.” Respondent, ther e, pled guilty to one

count of possession of child pornography. In a charge similar to the

allegations in this case, the Adminis trative Complaint alleged that:

Respondent ’s … plea of guilty …of the crime of

possessing child pornography, relates to the

pra ctice of medicine and his ability to practice

medicine in that the crime demonstrates a lack of emotional stability and mental fitness, unsound

judgment, and lack of integrity and respect for the

well - being of human beings.

47 . In its Final Order, the Bo ard of Medicine revoked Dr. Carter’s license.

The Final Order in Carter is the most directly analogous and comparable case

in fact and law to the instant case. T here is no clear and convincing re ason

why the Board should impose a different penalty.

48 . S imilar to Carter , it is not necessary to find factors to support

deviation from the disciplinary guidelines as the recommended penalty is

within the guide lines of Florida Administrative Code Rule 64B19 - 17.002 .

However, to the extent aggravating or mitigati ng factors are necessary, as it

relates to aggravating factors, rule 64B19 - 17.002 (2)(a)(e) and (j) would be

applicable. The exploitation and harm to the victims caused by child

pornography viewed by Respondent is extensive because child pornography is

a “p ermanent record” of sexual exploitation of a child . See Paroline v. U.S. ,

134 S. Ct. 1710 , 1716 - 17 (2014) . Respondent has also not demonstrated

rehabilitation , which could be demonstrated by showing remorse or

ac ceptance of his actions. To the contrary , he now denies viewing the

pornographic images and claims he was c oerced into a false confession, which

is the exact opposite of rehabilitation. Suspension and a fine in this case,

would not be a deterrent factor as Respondent insists he did nothing wrong.

4 9 . While Respondent has completed the sex offender treatment and has

years of service as a psychologist, those factors are not sufficient to disregard

the factors supporting the recommendation herein.

50 . P sychologists operate fro m a position of trust an d there is a n

expectation of trustworthiness and good judgment on the part of persons

holding a license to practice psychology . Here, Respondent’s actions show a

clear violation of the trust invested in him as a psychologist. Further,

contributing to sexua l exploitation of childre n clearly demonstrates impaired

judgment of Respondent.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Board of Psychology enter a Final Order finding that

Respondent viol ated section 456.072(1)(c), Florida Statutes, and revoking his

license to practice psychology.

D ONE A ND E NTERED this 23rd day of October, 2020 , in Tallahassee, Leon

County, Florida.

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative He arings

The DeSoto Building

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 23rd day of October , 2020 .

C OPIES F URNIS HED :

Christina Arzillo Shideler, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Jonathan Rose, Esquire

Jonathan Rose, P . A .

201 South Orange Avenue , Suite 1017

Orlando, Florida 32801

(eServed)

Ryan Sandy, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Allen Hall, Executive Director

Board of Psychology

Department of Health 4052 Bald Cypress Way , Bin C - 05

Tallahassee, Florida 32399

(eServed)

Louise St. Laurent, General Counsel

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit writte n 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.