20-005141PL Department Of Health, Board Of Physical Therapy Practice vs. Bryan M. Downs, P.T. Status: Closed Recommended Order on Wednesday, August 18, 2021.

Summary: The Department proved by clear and convincing evidence that Respondent failed to practice physical therapy within the standards of practice but failed to prove that Respondent committed sexual misconduct.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B OARD OF

P HYSICAL T HERAPY P RACTICE ,

Petitioner ,

vs. Case N o. 20 - 5141PL

B RYAN M. D OWNS , P.T. ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was conducted in this case on June 1,

2021, via Zoom teleconference, before Lawrence P. Stevenson, a duly -

designated Administrative Law Judge (ÑALJÒ) of the Division of

Administrative H earings ( Ñ DOAHÒ).

A PPEARANCES

For Petitioner: Christina Arzillo Shideler, Esquire

Caitl i n R ebekah Harden, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

For Respondent: Howard J. Hochman, Esquire

Law Office s of Howard Hochman

7550 Southwest 107th Street

Miami, Florida 33156

S TATEMENT OF T HE I SSUE S

The issue s are whether Respondent committed the violations alleged in

the Second Amended Administrative Complaint (ÑAdministrative

ComplaintÒ) and, if so, what i s the appropriate disciplinary action to be taken

against his license to practice physical therapy.

P RELIMINARY S TATEMENT

On October 29, 2020, Petitioner, Department of Health, Board of Physical

Therapy Practice (ÑDepartmentÒ) , filed a two - count Administr ative Complaint

seeking to impose discipline on the license of Respondent, Bryan M. Downs,

P.T. (ÑRespondentÒ or ÑMr. DownsÒ). Count I of the Administrative Complaint

alleged that Respondent violated section 486.125(1)(k), Florida Statutes

(2016) , 1 through a violation of section 486.123 (2016), by engaging in sexual

misconduct with Patient A.D. Count II of the Administrative Complaint

alleged that Respondent violated section 486.125(1)(e) (2016), through a

violation of Florida Administrative Code R ule 64B17 - 6.001(2)(f), 2 by failing to

meet that level of care, skill, and treatment which is recognized by a

reasonably prudent similar physical therapy practitioner as being acceptable

under similar conditions and circumstances.

Respondent timely contested the a llegations. On November 23, 2020, the

Department referred the case to DOAH for the assignment of an ALJ and the

conduct of a formal hearing. The final hearing was initially scheduled for

January 26, 2021.

On November 30, 2020, Respondent filed a Motion to Dismiss Count II of

the Administrative Complaint. Respondent argued that the same operative

facts were the basis of both counts of the Administrative Complaint, and that

the Department should not be allowed to pursue a general Ñstandard of careÒ

1 Unless otherwise noted, references to the Florida Statutes are to the 2020 edition. It is

noted th at sections 486.123 and 486.125 have not been amended since the alleged violations

occurred in 2016.

2 Subsection (2)(f) of rule 64B17 - 6.001 has been unchanged since 2016.

violation when the more specific statute, section 486.123, addresses all of the

factual allegations. The parties were given leave to file written argument,

necessitating a continuance of the scheduled final hearing. Respondent

ultimately filed an Amended Motion to Dismiss on January 11, 2021. A

telephonic hearing was held on the motion on January 26, 2021. By Order

dated January 27, 2021, the undersigned denied the Amended Motion to

Dismiss, with the proviso n included in the following paragraph:

È The undersigned a grees with Petitioner that the

cases cited by Respondent, Barr v. Department of

Health , 954 So.2d 668 (Fla. 1st DCA 2007), and

Cadet v. Department of Health , 255 So.3d 386 (Fla.

4th DCA 2018), do not support the contention that

an allegation of a violation of the standard of care

is precluded by an allegation of a violation of a

more specific statute, even where the same

operative facts are cited to support both

allegations. However, the undersigned also

observed that Cadet does appear to stand for the

prop osition that in such a situation, the allegations

must be specific to the statutory standard of care

definitions and not merely an allegation of acts

unbecoming to a member of the profession.

The Amended Motion to Dismiss also raised issues regarding the

composition of , and the deliberations undertaken by , the probable cause

panel that approved the Administrative Complaint. The undersigned

concluded that it is beyond the jurisdiction of this tribunal to review and pass

upon the actions of the probable cau se panel , but that Respondent would be

given leeway at the final hearing to establish a record sufficient to preserve

for appeal his arguments regarding the probable cause panel.

After four continuances, the final hearing was convened and completed on

Ju ne 1, 2021. At the hearing, the Department presented the testimony of

Patient A.D. ; and the expert testimony of Joylin Zimmerman, P.T. Both

witnesses also provided rebuttal testimony. The DepartmentÔs Exhibits 1

through 6 were admitted into evidence; howev er, only pages 132 through 145

of the Department Ôs Exhibit 2 were admitted.

Respondent testified on his own behalf and testified in sur r ebuttal.

RespondentÔs Exhibits B, C, F, and G were admitted into evidence.

RespondentÔs Exhibits D and E, the transcrip ts of the two probable cause

hearings in this case, were proffered and will travel with the record in order

to preserve RespondentÔs claims regarding the probable cause panel.

The one - volume Transcript of the final hearing was filed with DOAH on

June 21, 2021. By Order dated June 29, 2021, RespondentÔs motion for an

extension of time for the filing of p roposed r ecommended o rders was granted.

Consistent with the Order granting the extension, the parties filed their

Proposed Recommended Orders on July 12, 2 021. The Proposed

Recommended Orders have been thoroughly considered in the preparation of

this Recommended Order.

F INDINGS OF F ACT

Based on the partiesÔ Pre - h earing Stipulation, the evidence adduced at

hearing, and the record as a whole, the following F indings of Fact are made:

1. The Department, through the Board of Physical Therapy Practice

(ÑBoardÒ), is the entity charged with establishing or modifying standards of

practice for physical therapists and with the licensure and discipline of

physical ther apists. §§ 486.025 and 486.031, Fla. Stat.

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

Complaint, Mr. Downs was a licensed physical therapist in the state of

Florida, having been issued license number PT 16173 in 1997. Prior to this

p roceeding, Mr. Downs had never been subject to discipline by the Board.

3. At all times material to the allegations in the Complaint, Mr. Downs

had his own physical therapy practice located at 707 West Eau Gallie

Boulevard, Melbourne, Florida. Mr. Downs p racticed alone, without

administrative assistance. He performed his own administrative duties such

as scheduling appointments and taking payments from clients.

4. Sole practice appears not to be unusual in the physical therapy

profession. The DepartmentÔs expert witness, Joylin Zimmerman, testified

that her practice is also solo, with no receptionist or administrative assistant.

Ms. Zimmerman thus practices regularly under similar conditions as

Mr. Downs.

5. The lone treatment room in Mr. DownsÔ s office is roughly 20 feet by

24 feet, with one window and a single door. The door opens into a small

reception area.

6. Mr. Downs provided physical therapy treatment to Patient A.D., a

female, between July 26 and November 17, 2016. Patient A.D. presented with

shoul der and elbow pain. Mr. Downs provided treatment to Patient A.D. once

or twice per week during the cited period.

7. Mr. Downs is alleged to have committed five acts that violate section

486.123, which prohibits Ñsexual misconductÒ in the practice of physic al

therapy. The statute defines Ñsexual misconductÒ as the use of the therapist -

patient relationship Ñto induce or attempt to induce the patient to engage, or

to engage or attempt to engage the patient, in sexual activity outside the

scope of practice or t he scope of generally accepted examination or treatment

of the patient.Ò

8. The same acts are alleged to be violations of the standard of practice

and therefore to constitute a separate violation of section 486.125(1)(e), which

provides that a physical th erapist is subject to discipline for Ñ[f]ailing to

maintain acceptable standards of physical therapy practice as set forth by the

board in rules adopted pursuant to this chapter.Ò The Administrative

Complaint cites rule 64B17 - 6.001(2)(f), which requires a physical therapist to

Ñ[p]ractice physical therapy with that level of care, skill, and treatment which

is recognized by a reasonably prudent similar physical therapy practitioner

as being acceptable under similar conditions and circumstances.Ò

9. The five acts cited in the Administrative Complaint were:

a. During the course of treating Patient A.D.,

Respondent referred to a picture on a calendar

located in the treatment room as resembling a

Ñflaccid penis.Ò

b. During the course of treating Patient A.D.,

Re spondent removed his shirt to demonstrate the

mechanics of the shoulder/scapular movement.

c. During the course of treatment on November 17,

2016, Patient A.D. laid face up on a table in

RespondentÔs treatment room with the door closed.

While Patient A.D. was face up on the table,

Respondent kissed Patient A.D. on her forehead.

d. Also during the course of treatment on

November 17, 2016, while Patient A.D. was face up

on the table, Respondent wrapped his arms around

Patient A.D. in an embrace.

e. After t herapy was complete, but before Patient

A.D. had exited the room, Respondent stood at the

doorway of the room. Respondent opened his arms

inviting Patient A.D. for a hug while standing near

the door to the treatment room. Patient A.D.

hugged Respondent in order to exit the room.

10. Patient A.D., a female, first presented to Mr. Downs at his practice

location on July 26, 2016, with shoulder and elbow pain. Mr. Downs provided

therapy to Patient A.D. once or twice a week until November 17, 2016, after

which she decided to cancel all future appointments.

11. Patient A.D. has been a massage therapist for 30 years and has

practiced as a registered nurse. She is knowledgeable about the healthcare

field and the human body based on her experience in these professi ons.

The Flaccid Penis

12. Patient A.D. testified that on the wall of the treatment room was a

calendar with photographs of celestial objects such as stars, nebulas, and

galaxies. Mr. Downs agreed that he kept such calendars on the wall as an

aide to pati ents while scheduling appointments.

13. Patient A.D. testified that during one therapy session, she was on the

treatment table when Mr. Downs asked her what she saw in the picture that

was on that monthÔs calendar. She was not sure what he was asking becau se

it just looked like Ña space thing , Ò and so she did not answer. Mr. Downs then

volunteered that he saw a flaccid penis in it. Only then did she realize that he

was asking a ÑRorschach ink - blotÒ sort of question.

14. Patient A.D. said she was shocked an d taken aback at what

Mr. Downs said. She recalled laughing uncomfortably because there was

really no appropriate response. She believed that he must have been trying to

be shocking to see how she would react.

15. Patient A.D. testified that this happened again the next month, with

Mr. Downs finding a penis in the calendar photographs. By the third month,

Patient A.D. answered his question with, ÑI think it looks like a cat, but let

me guess what you see.Ò However, his response this time was not related to a

penis. Patient A.D. said this was the last time that Mr. Downs brought up the

calendar photographs.

16. Patient A.D. testified that she did not know why she did not just stop

coming to Mr. Downs after the penis comments.

17. The DepartmentÔs expert, Ms. Zimmerman, testified that the Ñflaccid

penisÒ comment fell below the minimum standards for the practice of physical

therapy because such a statement is not within the treatment protocol and is

of no benefit to the therapy session. Such statements diminish the

professional line between therapist and patient. They reduce the lines of

trust and make the patient wonder whether the therapist has more than

treatment in mind.

18. For his part, Mr. Downs categorically denied making any comment

about the calendar pictures resembling penises. He stated that he never

made any sexual innuendos about the calendars and would never do such a

thing.

The Shirt Removal

19. Patient A.D. testified that early in her course of treatment, Mr. Downs

closed the door to the trea tment room and removed his shirt to demonstrate

an exercise. Mr. Downs had his back to her so that she could see his shoulder

as he showed her the correct technique. Patient A.D. stated that he was no

more than a foot or two from her.

20. Patient A.D. test ified that Mr. Downs did not ask for her consent and

in fact said nothing before he took off his shirt. He did not offer any

alternative ways to demonstrate the exercise. She was surprised and found

his actions odd, inappropriate , and unprofessional.

21. P atient A.D. testified that Mr. Downs removed his shirt three or four

more times during the course of her therapy, all to demonstrate exercises. He

never touched her but also never asked for her consent. She was less shocked

at the subsequent shirt removals but still thought them unprofessional.

22. Patient A.D. was unsure why she did not tell Mr. Downs to stop

removing his shirt. She supposed Mr. Downs believed this was the best way

to demonstrate exercises, showing her which muscles to engage. Patient A.D.

stated that she has been around personal trainers and has demonstrated

exercises in the course of her massage therapy practice but remembers no one

else removing their shirt. She thought it was a Ñquirky, eccentric thing to do.Ò

She did not feel threatene d by this behavior and continued coming to

Mr. Downs for treatment.

23. Ms. Zimmerman opined that Mr. DownsÔs removing his shirt fell below

the standard of practice. She understood that he was demonstrating what a

normal mechanical shoulder motion looks li ke, but stated there are many

other ways to make that demonstration, including anatomy books and videos.

Ms. Zimmerman believed that this was another instance of blurring the line

between therapist and patient and could introduce uncertainty in the

patient Ôs mind as to the therapistÔs intentions.

24. Mr. Downs testified that he removed his shirt to demonstrate the

action of the scapula and surrounding joints. He has a scapula model in his

office as well as 2D representations of the body on wall charts. He u sed the

shoulder chart often because it effectively shows the anatomy and mechanics

of the shoulder.

25. Mr. Downs testified that he must nonetheless sometimes demonstrate

physically to make the patient understand the exercise he is trying to teach

them. As he put it, you cannot just tell the patient, ÑI need you to depress

your humeral headÒ and expect them to understand what you are asking.

26. Mr. Downs testified that for scapular retraction, he had to take off his

shirt and show the correct muscle firi ng. He stated that he always tries to

talk the patients through the maneuver first, but that most people have

developed poor mechanics and cannot do it correctly. He shows them the

correct muscles by demonstration.

27. Mr. Downs testified that he performs this technique with male and

female patients. He always asks for permission before removing his shirt and

has never had a patient complain about the scapula demonstration.

Mr. Downs stated that he has even had patients ask to record the

demonstration for later reference when they perform the exercises at home.

28. Mr. Downs was certain that he asked Patient A.D. for permission the

first time he removed his shirt but conceded he may not have asked on

subsequent occasions.

29. Mr. Downs emphasized that durin g the demonstrations, his back is to

the patient and he is talking over his shoulder. He estimated that he was

standing four to five feet away from Patient A.D., not one to two feet as she

testified. As soon as Patient A.D. appeared to understand the move he was

demonstrating, he put his shirt back on.

30. Ms. Zimmerman testified that unless the therapist has the muscle

development of a bodybuilder, a physical demonstration from four to five feet

away would not do the patient much good. Mr. Downs disagreed, stating that

visually seeing a path of the scapula gives the patient a good visual

understanding of what he is instructing her to do.

The Events of November 17, 2016

31. Patient A.D. testified that at the start of the November 17, 2016,

appointment, Mr. Downs closed the door of the treatment room, which he had

never done before unless he was demonstrating an exercise. She thought it

strange but assumed Mr. Downs had a reason, such as being aware of

something going on in the building that would be distract ing.

32. Patient A.D. was positioned face up on the treatment table with her

arms at her side. Mr. Downs sat on a rolling chair at the head of the table

and began working on her neck. After working the soft tissue of the neck,

Mr. Downs stood with his hand s under Patient A.D.Ôs head, moved her head

to the right and then brought her head in rotation to the left to mobilize the

vertebrae, giving her head a quick push to the left in order to mobilize the

cervical facet.

33. Patient A.D. testified that she had her eyes closed as Mr. Downs

worked on her neck. Patient A.D. testified that she could feel Mr. DownsÔs

hands come up to the sides of her face, which had never happened. She

opened her eyes to see Mr. DownsÔs face coming down toward her.

3 4 . Patient A.D. stated that she didnÔt know what was happening.

Perhaps Mr. Downs was falling. She pushed into the table and started to

raise her hands. Mr. Downs kissed her forehead then stood back up.

3 5 . Patient A.D. said, ÑWhat was that?Ò Mr. Downs said something abo ut

being sorry for hurting her and that was his way of apologizing. Patient A.D.

testified that Mr. DownsÔ s statement was untrue, or at least confusing,

because she was not experiencing any pain. Further, earlier in the course of

treatment , she had experie nced severe pain that elicited no sympathetic

response from Mr. Downs. She had not expected any such response because

she understood the brief pain to be part of the initial phase of the therapy.

3 6 . Patient A.D. testified that she made no movements that w ould suggest

she was in pain. She made no facial expressions. She believed that her

reactions of discomfort or pain would have been familiar to Mr. Downs after

several months of therapy.

3 7 . Patient A.D. testified that she was confused and shocked. She di d not

understand what was happening. It felt inappropriate and unprofessional.

She stated that she has asked herself why she did not just leave after the

kiss. Her only explanation is that she was so shocked that she froze.

3 8 . Patient A.D. testified that after the kiss, Mr. Downs moved on to work

on her right arm. When he stood up, he leaned over her and did what she

could only describe as Ñgave me a hug.Ò With Patient A.D. lying face up on

the table with her arms at her sides, Mr. Downs leaned down and pu t his

upper body on her. Patient A.D. stated that Mr. Downs did not embrace her

behind her back. He just squeezed her, put his weight on her, then stood back

up. She testified that it lasted only a moment.

3 9 . Again, Patient A.D. asked Mr. Downs why he did that. Mr. Downs just

reiterated that he felt bad for hurting her. She said, ÑIt doesnÔt hurt. ItÔs fine.Ò

She remained on the table, her brain Ñbuzzing with the uncertainty of it, the

unfamiliarness of it.Ò Patient A.D. testified that she was trying to ma ke sense

of what was happening and could not understand it. The reality was so

different from what she expected walking into the treatment room that she

was in shock.

40 . Patient A.D. testified that Mr. DownsÔs practice was to start with the

neck, then the right arm, then the left arm. After the hug, he moved on to the

left arm. She estimated that the session lasted maybe ten more minutes. She

was quiet and hoping Mr. Downs would Ñget the vibeÒ that she did not want

him to do that again. She hoped that Ñmy quietness and my tensionÒ would

convey to Mr. Downs that the situation Ñwas freaking me out.Ò

4 1 . After Mr. Downs finished on her left side, Patient A.D. sat up. She

testified that she usually paid Mr. Downs and discussed scheduling the next

appointment. O n this day, she wanted to pay and leave as quickly as possible.

However, the door was closed and Mr. Downs was standing between her and

the door, making her even more uncomfortable. Patient A.D. stated that

Mr. Downs motioned for her to give him a hug, wit h his arms open, palms up,

leaning in toward her. Patient A.D. stated that this had never happened

before. She thought to herself, ÑWell, if thatÔs what I have to do to get out of

here.Ò She gave him a Ñfaraway, kind of quick hugÒ and scooted toward the

do or.

4 2 . Mr. Downs put his hand on the doorknob and opened the door a little

bit. He was standing close to Patient A.D. She was afraid that he was going

to try to kiss her. She kept her head down. Mr. Downs opened the door and

Patient A.D. left.

4 3 . Patien t A.D. testified that this was the last in - person interaction she

ever had with Mr. Downs. A few days later, on November 22, 2016, Patient

A.D. initiated a text message conversation with Mr. Downs. She testified that

she did so because ÑI wanted some valid ation È I wanted like some magic

words that he would say to me that would make me feel È like I could trust

him again.Ò The text messages read as follows: 3

Patient A.D.: So I was thinking about our last

appointment time. What was up with the hugging

and ki ssing my forehead while I was on the table?

IÔm a little slow about these things sometimes. You

said you were making up for being mean to me.

Were you hitting on me?

3 The messages are printed verbatim, including Mr. DownsÔs habit of placing two per iods

after most sentences.

Mr. Downs: Hey, [A.D.].. omg, IÔm so sorry if I gave

you that impression.. itÔs funny, be cause after the

appointment, I felt like I may have overstepped my

bounds and I was going to text you to apologize if

you felt offended.. I think I was just feeling bad for

hurting you and trying to show compassion, but

chose a less than completely profess ional way of

showing it.. I really feel awful about putting you in

this situation.. can you forgive me? I totally respect

your marriage and mine.

Mr. Downs: Are you really mad at me?

Patient A.D.: I appreciate your acknowledgement

and apology. IÔm gonna go ahead and cancel my

future appointments, though.

Mr. Downs: Omg, [A.D.].. I canÔt believe you are so

upset about this. IÔm gutted because I thought we

were such good friends and I hate that you think I

would take advantage of you like that. I swear

the re was never any thought on my part to Ñhit on

you.Ò I was truly just trying to show how I hate

when I hurt a patient. I thought you understood

that. I am really saddened by this.

Well, obviously I have to respect your decision, but

I think you are over re acting to what was really

innocent. IÔm a professional with a family and

business to think of.. I would not risk that with

impropriety like you are insinuating.

I really hope I was able to help you with your

shoulder and elbow. Please know that was my only

goal in every treatment.

4 4 . Mr. DownsÔs version of the November 17, 2016, treatment session is

consistent with that of Patient A.D. up to and including the kiss on the

forehead. Mr. Downs concedes that he kissed Patient A.D. on the forehead

and that act ion was below the standard of care. Mr. Downs testified that in

performing a maneuver to mobilize Patient A.D.Ôs cervical facets, he knew

immediately that it was unsuccessful because there was no crack or click as

would normally occur. Patient A.D.Ôs neck muscles tightened and there was a

grimace on her face. He was surprised because Patient A.D.Ôs therapy had

been going well. Mr. Downs stated that he Ñreflexively, sympatheticallyÒ bent

down and kissed her forehead. It was Ñjust a little peck,Ò but he regre tted it.

He acknowledged that it was inappropriate but also stated that it was not

planned.

4 5 . The Department argues that Mr. DownsÔs explanation that he

reflexively kissed Patient A.D. out of concern for her apparent pain is

discredited by his own admiss ion that he has practiced physical therapy since

1997 and performed tens of thousands of therapy sessions on patients

without ever kissing a patient on the forehead during therapy. The

Department contends it is implausible that Mr. Downs would instinctivel y

react in such a unique and intimate way to this particular patientÔs

discomfort during a routine procedure, or that he would have such a reaction

for the first time after multiple appointments with a patient.

4 6 . In response to the investigation, Mr. Do wns submitted a written

statement to the Department on December 10, 2018. In the statement,

Mr. Downs explicitly stated that he did Ñnot recollect any kiss on her

forehead at all.Ò The Department argues that this prior statement

undermines Mr. DownsÔs det ailed testimonial explanations as to why he

kissed Patient A.D. on the forehead.

4 7 . The Department also introduced emails that Mr. Downs sent and

received while employed at Health South, where he worked prior to setting

up his solo practice. The emails co nsisted of flirtatious and sexually explicit

exchanges with female co - workers. The record indicates that Health South

disciplined Mr. Downs twice in a two - year period for using his work email for

improper purposes. The Department contends that this history undermines

Mr. DownsÔs claims to Patient A.D. that he Ñtotally respect[ed] your marriage

and mine.Ò

4 8 . Mr. DownsÔs version of events diverges from that of Patient A.D. after

the kiss. He testified that what Patient A.D. perceived as a hug while she lay

face up on the treatment table was part of a complex move to mobilize her

thoracic vertebrae. Mr. Downs stated that before attempting to mobilize the

thoracic vertebrae he first works on the soft tissue of the thoracic spine.

Therefore, he asked Patient A. D. to rotate onto her stomach. He slid up her

shirt to reveal the thoracic spine and massaged there. He performed some

light mobilization of the ribs, worked on the soft tissue around the scapula,

the rotator cuff, and near the cervicothoracic junction whe re the spine meets

the neck. Mr. Downs testified that this soft tissue massage took about five

minutes.

4 9 . Patient A.D. testified that she was never laid face down during the

November 17, 2016, treatment session.

50 . Mr. Downs testified that he next asked Patient A.D. to roll back over

onto her back and cross her arms over her chest with one elbow on top of the

other. He placed one hand under her, on her thoracic spine, and leaned his

chest into her arms, giving a little thrust with his chest to elicit the

mobilization of the vertebrae. He performed this maneuver in two different

positions, once between her shoulder blades and once a little higher. 4

5 1 . After performing the mobilization, Mr. Downs asked Patient A.D. to

sit up so that he could assess the mov ement of her neck and thoracic spine.

Mr. Downs denied working on Patient A.D.Ôs left arm because she never

referenced the left arm as a source of pain. His contemporaneous progress

notes agree that he did not work on Patient A.D.Ôs left arm. He testified that

he next worked on her right shoulder.

4 The Department contends that Mr. DownsÔs testimony at the hearing that he had Patient

A.D. cross her elbows over her chest ÑconvenientlyÒ contradicts his deposition testimony, in

which he stated that he had Patient A.D. put he r hands behind her neck. The Department

contends that the deposition testimony makes the ÑhugÒ scenario more likely. However, even

in his deposition testimony, Mr. Downs stated that he had Patient A.D. hold her elbows up

under her chin and that he braced a gainst her elbows to perform the manipulation. In

neither version of his testimony did Mr. Downs concede the possibility that he was chest - to -

chest with Patient A.D.

5 2 . Mr. Downs denied that he pinned Patient A.D.Ôs arms to the table. He

never leaned over and hugged her. Mr. Downs allowed that she could have

misinterpreted the mobilization maneuver as him leaning down and hug ging

her, but he denied leaning over for a hug.

5 3 . Mr. Downs testified that after working on Patient A.D.Ôs shoulder and

elbow, they spent 20 to 25 minutes doing exercises. Patient A.D. then came to

the counter, paid Mr. Downs, and scheduled her next app ointment.

5 4 . Mr. Downs conceded that he gave Patient A.D. a hug before she left

the treatment room. He testified that he was wondering whether she was

upset about the kiss and offered to give her the hug in an attempt to

ascertain whether things were okay between them. Mr. Downs denied

blocking the door. He was to the side of the door, opening it for Patient A.D.

He asked her, ÑAre we okay?Ò She leaned in and gave him what Mr. Downs

described as a Ñnon - hug hug.Ò She said, ÑIÔm fineÒ and walked out.

5 5 . Ms. Zimmerman testified that, even crediting Mr. Downs with concern

about causing pain to Patient A.D., the kiss to the forehead was outside the

scope of practice. Ms. Zimmerman stated that a kiss is not an appropriate

therapeutic intervention and would never be appropriate during a therapy

session. If the patient indicates pain, the therapist can ask if it bothered her,

and, if so, the therapist could do some soft tissue work and/or apply heat to

the affected area. The therapist could move on to another body part and come

back to the part that incurred the pain.

5 6 . Ms. Zimmerman testified that the kiss severely damaged the patientÔs

trust. At this point, the boundary lines were gone and the patient had no idea

what to expect next.

5 7 . Ms. Zimmerman testifie d that there was no therapeutic significance to

the ÑhugÒ on the table, if it occurred as described by Patient A.D. Therefore,

the hug was outside the scope of practice. Even if Mr. Downs were operating

under the guise of performing a thoracic spine mobili zation manipulation, the

correct application of that manipulation would not involve the therapistÔs

being chest - to - chest with the patient. He should have been grasping her

elbow to get the leverage to perform the manipulation.

5 8 . However, Ms. Zimmerman co nceded that if the manipulation had been

performed as described by Mr. Downs, with the patientÔs elbows crossed in

front of her, then his actions would not fall below the standard of practice.

5 9 . As to the post - session hug, Ms. Zimmerman stated that a pa tient and

therapist giving each other a hug after treatment would not necessarily be

outside the scope of practice. She testified that therapists and patients can

develop deep relationships, and that a patient may be having a difficult time

due to a death in the family or some other misfortune. Under such

circumstances, the therapist might give their patient a hug.

60 . The Department argues that Mr. DownsÔs inappropriate actions

during therapy with Patient A.D. are evidence that he lacks good judgment.

As a physical therapist, Mr. Downs is required to establish boundaries and

trust between himself and his patients. Mr. DownsÔs lack of boundaries and

inability to read nonverbal cues with his patients calls into question whether

he is able to maintain professi onalism in a solo practice.

6 1 . The Department notes that Mr. DownsÔs inappropriate conduct during

the November 17, 2016, visit with Patient A.D. eroded the trust between him

and Patient A.D. Mr. DownsÔs behavior directly resulted in Patient A.D.

cancelli ng all future appointments, despite meeting her goals and progressing

well in therapy up to that date.

6 2 . Patient A.D. testified that her experience with Mr. Downs has caused

her to decline necessary medical care due to her lack of trust of members of

th e healthcare field. Patient A.D. has tremendous anxiety over being in a

vulnerable position with healthcare professionals, to the point of having

canceled a needed colonoscopy because she suffered a panic attack.

6 3 . There was no indication that Patient A .D. approached this matter

with any ulterior motive. She never filed any civil actions or notified law

enforcement regarding Mr. DownsÔs behavior during therapy. She spent a

long time deciding whether she should file a complaint against Mr. Downs

because s he knew the consequences would affect not only her but Mr. Downs

and his family as well. She finally decided to file a complaint in October 2018

because she felt it was the right thing to do and because she felt a duty to

prevent Mr. Downs from possibly do ing the same thing to other patients.

6 4 . The Department correctly stated that Patient A.D.Ôs recollection of her

physical therapy sessions with Mr. Downs was clear, distinctly remembered,

and lacking in confusion. There were no inconsistencies between her written

statement initiating the case in October 2018, her deposition on

September 10, 2020, or her testimony at the final hearing.

6 5 . The Department contrasts Patient A.D.Ôs credibility with that of

Mr. Downs, whose testimony directly contradicted a pri or written statement

in which he denied any recollection of a kiss to the forehead.

6 6 . The Department also points out that, in recollecting the events of

November 17, 2016, Mr. Downs persistently spoke of things he Ñwould haveÒ

done, as if he were descri bing his general practices with patients rather than

specifically recalling the events of that day. However, the undersigned is

satisfied that this was simply a verbal tic and that Mr. Downs intended his

testimony to convey his specific memories.

Ultimate Findings

The Flaccid Penis

6 7 . The ultimate finding as to whether Mr. Downs made the Ñflaccid

penisÒ comment depends on an assessment of witness credibility, because

Patient A.D. precisely recounted the episode and Mr. Downs flatly denied

that it ever oc curred.

6 8 . Patient A.D.Ôs testimony is credited on this point. The oddness and

specificity of the story causes the undersigned to doubt that Patient A.D.

could have made it up out of whole cloth. Mr. Downs admitted that he used

astronomical calendars in his office. He testified that he searched through old

office materials looking for the 2016 calendar in order to see if there was a

photograph matching Patient A.D.Ôs description. It struck the undersigned as

anomalous that Mr. Downs would feel the need to find the calendar if the

incident never occurred at all and caused the undersigned to wonder what

Mr. Downs would have been looking for as he examined the calendar photos.

6 9 . Mr. DownsÔs behavior in making comments about the calendar photos

was at best o ffputtingly strange and at worst sexually suggestive. His

behavior in this instance clearly fell below the minimum standards for the

practice of physical therapy. However, this incident is not found to have

clearly constituted Ñsexual misconductÒ as define d in section 486.123. It was

only after subsequent events that Patient A.D. came to think that the

calendar comments might have been intended to gauge her receptivity to

sexual activity. At the time, it just struck her as Mr. DownsÔs weird attempt

to shock her.

The Shirt Removal

70. Mr. Downs and Patient A.D. agreed on the basic facts: Mr. Downs

removed his shirt to demonstrate an exercise so that Patient A.D. could

observe the proper movement of the muscles involved. Patient A.D. described

the demonstra tion as a Ñquirky, eccentric thing to do,Ò but did not feel

threatened and continued coming to Mr. Downs for treatment.

7 1 . Mr. DownsÔs removing his shirt clearly fell below the standard of

practice. As noted by Ms. Zimmerman, there are many other ways to

demonstrate a normal mechanical shoulder motion, such as anatomy books,

models, and videos. The undersigned agrees with Ms. Zimmerman that this

was an instance of blurring the line between therapist and patient in an

unnecessary manner. However, the unders igned also finds that there was no

evidence that this demonstration was intended to induce Patient A.D. to

engage in sexual activity. Mr. DownsÔs explanation for removing his shirt is

credited as sincere even if his method was not within the standard of

pr actice.

The Events of November 17, 2016

7 2 . As to the kiss on the forehead, there is no dispute that it occurred.

Patient A.D. and Mr. Downs agreed as to the sequence of events. Mr. Downs

rightly conceded that the kiss was a mistake and fell below the st andard of

practice. The only issue in controversy is whether the kiss constituted Ñsexual

misconductÒ under section 486.123.

7 3 . The undersigned finds, based on all the evidence, that the kiss on the

forehead was not clearly and convincingly shown to cons titute sexual

misconduct. Mr. Downs adamantly denied that there was any sexual intent

in the kiss, though his denial is undercut by the fact that in his initial

written statement to the Department, Mr. Downs denied that the kiss

occurred. It was not unreas onable for Patient A.D. to interpret the kiss as at

least an effort by Mr. Downs to assess what he could get away with in terms

of sexual advances. However, given the relatively high standard of proof, a

lack of corroboration that reduces the analysis to a Ñhe said, she saidÒ

scenario, and the necessarily subjective question of whether Mr. Downs

intended an Ñattempt to induceÒ Patient A.D. to engage in sexual activity, the

undersigned is constrained to find that the Department has not met its

burden of prov ing sexual misconduct. Mr. DownsÔ s behavior was odd, overly

intimate, and professionally inappropriate, but not clearly intended as

sexual. As noted above, the Department did prove by clear and convincing

evidence that the kiss was outside the scope of pra ctice and fell below the

standard of practice for a physical therapist.

7 4 . As to the asserted ÑhugÒ on the treatment table, it is found that the

evidence did not clearly and convincingly demonstrate that this constituted

either a deviation from the standa rd of practice or sexual misconduct. Patient

A.D. asserted that Mr. Downs bent down and engaged in a chest - to - chest hug.

Mr. Downs credibly testified that he was performing a mobilization of Patient

A.D.Ôs thoracic vertebrae. The treatment technique requir es that the

therapist brace his trunk against the patientÔs raised elbows in a way that

could be perceived as a hug. Given that Patient A.D. was already somewhat

unnerved by the unexpected kiss, it is understandable that she might

interpret the technique a s a hug.

7 5 . Finally, regarding the hug as Patient A.D. attempted to exit the

treatment room at the end of the session, the undersigned finds clear and

convincing evidence that Mr. DownsÔ s behavior fell below the standard of

practice but not that it consti tuted sexual misconduct. Mr. Downs improperly

placed Patient A.D. in a position where she felt no choice but to accept

unwanted physical contact unrelated to her therapy in order to leave the

room. However, the evidence is insufficient for a finding that M r. Downs was

attempting to induce Patient A.D. to engage in sexual activity by a brief hug

before she left the treatment room.

The DepartmentÔs Expert

7 6 . Ms. Zimmerman is a reasonably prudent physical therapist who

practices regularly under similar cond itions as Mr. Downs. The testimony of

Ms. Zimmerman was credible and reasonable in describing the standard of

care exercised by a reasonably prudent similar physical therapy practitioner.

Ms. Zimmerman opined that Mr. Downs fell below the standard of care when

he described the photograph as resembling a flaccid penis, when he removed

his shirt to demonstrate the shoulder/scapular movement, when he kissed

Patient A.D. on the forehead, and when he initiated the hug as Patient A.D.

attempted to leave the treat ment room. Her testimony is accepted as to the

standard of care and her opinion is credited as to Mr. DownsÔs failure to meet

that standard.

7 7 . As noted above, the undersigned credits Mr. DownsÔ s version of events

as to the purported ÑhugÒ as Patient A.D . lay face up on the treatment table.

Ms. Zimmerman credibly testified that, if the technique was performed as

described by Mr. Downs, then his actions were within the standard of care.

C ONCLUSIONS OF L AW

7 8 . The Division of Administrative Hearings has j urisdiction of the subject

matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla.

Stat.

7 9 . The Department, through the Board, is the entity charged with

establishing or modifying standards of practice for physical therapists and

wit h the licensure and discipline of physical therapists. §§ 486.025

and 486.031, Fla. Stat.

80 . This is a proceeding in which Petitioner seeks to discipline

Mr. DownsÔs license to practice physical therapy. Because disciplinary

proceedings are considered to be penal in nature, Petitioner is required to

prove the allegations in the Administrative Complaint by clear and

convincing evidence. DepÔt of Banking & Fin. v. Osborne Stern & Co., Inc. , 60

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla . 1987).

8 1 . Clear and convincing evidence Ñrequires more proof than a

Ópreponderance of the evidenceÔ but less than Óbeyond and to the exclusion of a

reasonable doubt.ÔÒ In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). The

Florida Supreme Court further en unciated the standard:

This intermediate level of proof entails both a

qualitative and quantitative standard. The

evidence must be credible; the memories of the

witnesses must be clear and without confusion; and

the sum total of the evidence must be of suf ficient

weight to convince the trier of fact without

hesitancy.

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; the testimony must be precise an d

lacking in confusion as to the facts in issue. The

evidence must be of such a weight that it produces

in the mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the truth of the

allegations sought to be established.

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

429 So. 2d 797, 800 (Fla. 4th DCA 1983)). ÑAlthough this standard of proof

may be met where the evidence is in conflict, it seems to preclude evidence

that is ambiguous.Ò Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 989

(Fla. 1st DCA 1991).

8 2 . Section 486.125 is penal in nature and must be strictly construed, with

any ambiguity construed against Petitioner. Penal statutes must be

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

Legislature may not be expanded to broaden the application of such statutes.

Beckett v. DepÔt of Fin. Servs. , 982 So. 2d 94, 100 (Fla. 1st DCA 2008); Latham

v. Fla. CommÔn on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).

8 3 . The allegations set f orth in the Administrative Complaint are those

upon which this proceeding is predicated. Trevisani v. DepÔt of Health , 908 So.

2d 1108, 1109 (Fla. 1st DCA 2005); Cottrill v. DepÔt of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996). Due process prohibits Pe titioner from taking

disciplinary action against a licensee based on matters not specifically alleged

in the charging instruments, unless those matters have been tried by

consent. See Shore Vill. Prop. OwnerÔs AssÔn v. DepÔt of Envtl. Prot. , 824 So. 2d

208 , 210 (Fla. 4th DCA 2002); Delk v. DepÔt of ProfÔl Reg. , 595 So. 2d 966, 967

(Fla. 5th DCA 1992).

8 4 . Count I of the Administrative Complaint seeks to discipline

Mr. Downs on charges that he violated section 486.125(1)(k), which provides

that a physical th erapist is subject to discipline for violating any provision of

chapter 486 or chapter 456 , Florida Statutes . The Administrative Complaint

alleges that the substantive statute violated was section 486.123, titled

Ñ Sexual misconduct in the practice of physi cal therapy,Ò and which provides:

The physical therapist - patient relationship is

founded on mutual trust. Sexual misconduct in the

practice of physical therapy means violation of the

physical therapist - patient relationship through

which the physical therap ist uses that relationship

to induce or attempt to induce the patient to

engage, or to engage or attempt to engage the

patient, in sexual activity outside the scope of

practice or the scope of generally accepted

examination or treatment of the patient. Sex ual

misconduct in the practice of physical therapy is

prohibited.

8 5 . The Administrative Complaint alleges that Mr. Downs engaged , or

attempted to engage , Patient A.D. to engage in sexual activity in one or more

of the following ways: by kissing Patient A .D. on the forehead; by embracing

Patient A.D. while she was lying face up on a table; and/or by inviting Patient

A.D. to hug him, impeding her exit from the room.

8 6 . Based on the above Findings of Fact, it is concluded that the

Department has failed to p rove by clear and convincing evidence that any or

all of the acts alleged constituted sexual misconduct. Mr. DownsÔs actions

were inappropriate, disconcerting, and alienated his patient. Patient A.D.Ôs

suspicions that Mr. Downs was ÑhittingÒ on her were en tirely

understandable. However, the evidence failed to clearly and convincingly

demonstrate that Mr. Downs was attempting to induce Patient A.D. to

engage in sexual activity outside the scope of practice. It is more consistent

with the evidence as a whole to conclude that Mr. Downs used very poor

judgment and demonstrated a poorly developed sense of the boundary

between therapist and patient.

8 7 . Count II of the Administrative Complaint alleges that Mr. Downs

violated section 486.125(1)(e), which subjects a physical therapist to

discipline for failing to maintain acceptable standards of physical therapy

practice as set forth by the Board in rules adopted pursuant to chapter 486.

8 8 . The Administrative Complaint alleges that the substantive rule

violated by M r. Downs was rule 64B17 - 6.001(2)(f), which provides:

(2) Physical Therapy Personnel Responsibilities In

General. Physical therapy is a profession involving

skilled practice of patient care. The primary

concern of the physical therapist and physical

therapi st assistant is always the safety, well being,

and best interest of the patient who must therefore

recognize and carry out services consistent with

legal rights and personal dignity of the patient.

Accordingly, it is the responsibility of all physical

ther apists and physical therapist assistants to:

* * *

(f) Practice physical therapy with that level of care,

skill, and treatment which is recognized by a

reasonably prudent similar physical therapy

practitioner as being acceptable under similar

conditions and circumstances.

8 9 . Ms. Zimmerman is a reasonably prudent physical therapist who

practices regularly under similar conditions as Mr. Downs.

90 . The Administrative Complaint alleges that Mr. Downs failed to

practice physical therapy with that level of care, skill, and treatment which is

recognized by a reasonabl y prudent similar physical therapy practitioner as

being acceptable under similar conditions and circumstances in one or more

of the following ways: kissing Patient A.D. on the forehead during t reatment;

hugging Patient A.D. during and/or after treatment; telling Patient A.D. that

a picture on the calendar in the treatment room looked like a Ñflaccid penis;Ò

and/or removing his shirt to demonstrate the mechanics of the

shoulder/scapular movement.

9 1 . Based on the above Findings of Fact, it is concluded that the

Department has demonstrated by clear and convincing evidence that

Mr. Downs failed to practice physical therapy with that level of care, skill,

and treatment which is recognized by a reason ably prudent similar physical

therapy practitioner as being acceptable under similar conditions and

circumstances. The flaccid penis colloquy, the removal of the shirt to

demonstrate an exercise in the treatment room, the kiss on the forehead, and

the hug as Patient A.D. attempted to exit the treatment room all fell below

the standard of care.

9 2 . Through the credible testimony of Ms. Zimmerman, the Department

established that Mr. Downs fell below the standard of care when he described

the photograph as re sembling a flaccid penis, when he removed his shirt to

demonstrate the shoulder/scapular movement, when he kissed Patient A.D.

on the forehead, and when he initiated the hug as Patient A.D. attempted to

leave the treatment room. For reasons stated in the F indings of Fact above, it

is concluded that Mr. Downs performed the thoracic vertebrae mobilization

within the standard of care and did not hug Patient A.D. as she lay face up on

the treatment table.

9 3 . Section 456.079(1) requires boards within the Depart mentÔs

jurisdiction to adopt Ñdisciplinary guidelines applicable to each ground for

disciplinary action which may be imposed by the board.Ò Penalties imposed

must be consistent with any disciplinary guidelines prescribed by rule. See

Parrot Heads, Inc. v. DepÔt of Bus. & Pro. Reg. , 741 So. 2d 1231, 1233 - 34 (Fla.

5th DCA 1999). In compliance with the statutory mandate, the Board has

adopted rule 64B17 - 7.001, which sets forth disciplinary guidelines for

violations of chapter 486 and the rules of the Board.

9 4 . Mr. Downs has not previously been subject to discipline by the Board.

9 5 . The range of penalties for a first offense of section 486.125(1)(e) is

from a minimum of a $1,000 fine and a letter of concern to a maximum of a

$6,000 fine and/or two years of su spension followed by two years of probation.

Fla. Admin. Code R. 64B17 - 7.001(1)(e).

9 6 . Rule 64B17 - 7.001(2) sets forth the following:

(2) In determining what action is appropriate, the

Board shall first consider what sanctions are

necessary to protect the public or to compensate the

patient. The Board shall then consider mitigating

or aggravating circumstances in applying a penalty

that is outside of the range provided for in the

disciplinary guidelines including:

(a) The danger to the public;

(b) The num ber of distinct charges;

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

patient(s);

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

violation(s);

(e) The length of time that the licensee has held a

license in any jurisdiction;

(f) The deterrent effect of the penalty imposed;

(g) Rehabilitation efforts of the licensee including

remorse, restitution, and corrective action(s);

(h) The effect of the penalty on the licenseeÔs

livelihood;

(i) Efforts of the licensee to report or stop violations

or the failure of the licensee to correct or stop

violations; and

(j) The willfulness and/or negligence of the licensee

pertaining to any violation.

9 7 . The aggravating factors present in this case are:

a. A moderate level of danger to the public, in that

Mr. Downs operates a solo practice and appears to

lack a certain level of judgment as to his

professional conduct;

b. The number of distinct charges, in that

Mr. Downs has been found to have fallen below the

standard of care in four separate instances; a nd

c. The actual damage to Patient A.D., who credibly

testified that she now struggles with trusting her

medical practitioners and has canceled a needed

colonoscopy because she panicked about being

placed in a vulnerable position .

9 8 . The mitigating fac tor is that Mr. Downs has been licensed since 1997

without any discipline against his license prior to this proceeding.

9 9 . The undersigned concludes that the other listed factors are neutral or

inapplicable. Evidence was not presented regarding deterrenc e or the effect of

a penalty on Mr. DownsÔs livelihood. Mr. Downs showed no remorse and

offered no evidence of any other rehabilitation efforts. Finally, this case

involved less Ñwillfulness and/or negligenceÒ than Mr. DownsÔs inability to

understand Patie nt A.D.Ôs normal reaction to his manifestly inappropriate

behavior.

100 . It is noted that, aside from the specific failures found above,

Mr. DownsÔs treatment of Patient A.D. was within the scope and standards of

practice and appeared to be achieving posi tive results. It is noted again that

this is Mr. DownsÔs first occasion to be disciplined by the Board. It is hoped

that the penalties recommended below will spur Mr. Downs to seek out the

necessary therapy and/or education he requires to fully understand the

boundary between therapist and patient , and to accept responsibility for the

strange and damaging experience he visited upon Patient A.D.

10 1 . It is recommended that the Board impose a fine of $2,000 for each of

the four proven instances of Mr. DownsÔs failure to practice physical therapy

with that level of care, skill, and treatment which is recognized by a

reasonably prudent similar physical therapy practitioner as being acceptable

under similar conditions and circumstances, for a total fine of $8,000 . It is

further recommended that Mr. Downs be placed on probation for a period of

two years.

10 2 . Section 456.072(4) provides that, in addition to any other discipline

imposed for violation of a practice act, any board under the DepartmentÔs

jurisdiction s hall assess costs related to the investigation and prosecution of

the case. The Board should therefore also assess the costs of the

DepartmentÔs investigation and prosecution of Respondent in this matter.

R ECOMMENDATION

Based upon the foregoing Findings o f Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Health, Board of Physical Therapy

Practice , issue a final order: finding that Respondent violated section

486.125(1)(e) through a violation of rule 64B17 - 6.001(2)(f), as charged in

Cou nt II of the Administrative Complaint; imposing a fine of $8,000; placing

RespondentÔs license on probation for a period of two years ; and assess the

costs of the DepartmentÔs investigation and prosecution of Respondent .

D ONE A ND E NTERED this 1 8 th day of August , 2021 , in Tallahassee, Leon

County, Florida.

S

L AWRENCE P. S TEVENSON

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hear ings

this 1 8 th day of August , 2021 .

C OPIES F URNISHED :

Howard J. Hochman, Esquire Christina Arzillo Shideler, Esquire

Law Offices of Howard Hochman D epartment of Health

7550 Southwest 107th Street Bin C - 65

Miami, Florida 33156 4052 Bald Cypress Way

Tall ahassee, Florida 32399

Caitlin Rebekah Harden, Esquire Louise St. Laurent, General Counsel

Department of Health Department of Health

Bin C - 65 4052 Bald Cypress Way, Bin C65

4052 Bald Cypress Way Tallahassee, Florida 32399

Tallaha ssee, Florida 32399

Allen Hall, Executive Director

Board of Physical Therapy

Department of Health

4052 Bald Cypress Way, Bin C05

Tallahassee, Florida 32399 - 3255

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.