21-000016 Drew Breznitsky vs. Department Of Health, Board Of Clinical Social, Work, Marriage And Familiy Therapy And Mental Health Counseling Status: Closed Recommended Order on Friday, February 11, 2022.

Summary: Respondent did not establish that there was competent, substantial evidence to demonstrate that Petitioner was unable to practice as a registered mental health counselor intern.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D REW B REZNITSKY ,

Petitioner ,

vs. Case No. 21 - 0016

D EPARTMENT OF H EALTH , B OARD OF

C LINICAL S OCIAL W ORK , M ARRIAGE A ND

F AMILY T HERAPY A ND M ENTAL H EALTH

C OUNSELING ,

Respondent .

/

R ECOMMENDED O RDER

On June 28 through July 2, 2021, Yolonda Y. Green, an Administrative

Law Judge (ÑALJÒ) with the Division of Administrative Hearings (ÑDOAHÒ),

conducted a hearing pursuant to se ction 120.57(1), Florida Statutes (2020),

via Zoom conference technology.

A PPEARANCES

For Petitioner: Stephen B. Burch, Esquire

Smith & Associates

Suite 540

709 South Harbor City Boulevard

Melbourne, F lorida 32901

For Respondent: Timothy Frizzell, Esq uire

Robert Antonie Milne, Esquire

John Benjamin Fricke, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, F lorida 32399

S TATEMENT OF T HE I SSUE S

1. Whether Petitioner, Drew Breznitsky (ÑPetitionerÒ or ÑMr. BreznitskyÒ) ,

should be issued a license as a men tal health counselor intern;

2. Whether Petitioner is unable to practice with reasonable skill and

safety to patients by reason of illness or use of alcohol, drugs, narcotics,

chemicals, or any other type of materials or as a result of any mental or

physical condition pursuant to section 456.072(1)(z), Florida Statutes; and

3. Whether Petitioner is unable to practice as a mental health counselor

intern with reasonable skill or competence as a result of any mental or

phys ical condition or by reason of illness; drunkenness; or excessive use of

drugs, narcotics, chemicals, or any other substance , in violation of section

491.009(1)(p), Florida Statutes.

P RELIMINARY S TATEMENT

On November 19, 2020, the Board of Clinical Socia l Work, Marriage and

Family Therapy and Mental Health Counseling (ÑRespondentÒ or Ñthe

BoardÒ) notified Petitioner that his application for registration as a mental

health counselor intern was denied through a Notice of Intent to Deny

(ÑNoticeÒ). The Notic e was amended and , ultimately, stated that Respondent

is not able to practice with reasonable ski ll, safety, or competence as a mental

health counselor i ntern, pursuant to sections 491.009( 1 )(p) and 456.072(1)(z ).

Petitioner timely requested an administrat ive hearing to dispute the BoardÔs

denial of his application, and on January 4, 2021, the Board referred this

matter to DOAH for a formal administrative hearing. After granting one

continuance, the undersigned issued a notice scheduling the final hearing f or

June 28 through July 2, 2021.

O n June 21, 2021 , Petitioner filed a Daubert Motion and/or Motion in

Limine to Exclude Dr. Lawrence Wilson (ÑMotion in LimineÒ) . The

undersigned h eard argument from both parties on the Motion in Limine.

A fter hear ing the testimony of Dr. Wilson , reviewing the deposition of

Dr. Abbas and weighing that testimony and the evidence offered in support of

the Motion, the undersigned denied PetitionerÔs Motion in Limine .

The parties filed their P rehearing S tipulation which incl uded stipulated

facts. To the extent they are relevant, they have been incorporated into the

Findings of Fact below.

On June 28, 2021, the hearing commenced as scheduled. At the final

hearing, Petitioner testified on his own behalf and presented testimon y from

the following witnesses: Susan B. Deane, MS, LMHC, LMFT, QS; Jack Platt,

Esquire; Dr. Duncan Bowen, Ph.D. (Expert); Greg Richer; Christopher Kissel;

and Dr. Beth Mahoney , D.O . Petitioner's Exhibits 1, 2, 7 through 16, 18, and

20 through 33 were admi tted into evidence without objection. PetitionerÔs

Exhibits 3 , 4 ( pages 2 through 5 ), 6, and 19 w ere admitted into evidence over

objection.

Respondent presented testimon y from the following witnesses: Janet

Hartman ; Ashleigh Irving ; Kimberly Simon ; Liaqa t Ali Abbas, M.D. ( E xpert) ;

Lawrence Steven Wilson, M.D. (Expert) ; Dr. Alexis Polles , M.D. ; and

Dr. Dean Aufderheide (Expert) . RespondentÔs Exhibits 1 through 16,

23 through 30, 32 through 43, 47 through 61, and 63 through 97 were

admitted into evidence wi thout objection. Respondent's Exhibits 17,

19 through 22, 31 through 36 , and 41 were entered into evidence over

objection. 1

1 Respo ndentÓs Exhibits 75 through 87 included credit card accounts showing alcohol purchases. The

Exhibits were admitted subject to the Petitioner's hearsay objection. Respondent argued in its P roposed

R ecommended O rder (ÐPROsÑ) that during his deposition , Petitioner admitted that all the credit card

account entries produced in response to request s for production were from his personal credit card accounts

over which he had exclusive cont rol and was sole signatory. I n light of PetitionerÓs admission , the

objections based on he arsay are overruled.

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

August 10 , 202 1 . At the conclusion of the final hearing, t he parties requested

45 days to file PROs. The parties ti mely filed P ROs, which have been

carefully considered in preparation of this Recommended Order .

Unless otherwise indicated, all statutory references are to Florida

Statutes (2020).

F INDINGS OF F ACT

Background

1 . The Department is the state agency charged with regulating the

practice of clinical social work in Florida , s ee § 20.43 and chs. 456 and 491,

Fla. Stat. T he Board is the state agency that implements and enforces

regulations regarding the r egistration of mental health interns in the State of

Florida.

2 . Mr. Breznitsky is an applicant for licensure as a mental health

counselor intern.

3 . Mr. Breznitsky has a bachelor Ô s degree in human services , and a minor

in psychology. In March 2020 , h e earned a d egree in c ounseling , with an

emphasis in c linical m ental h ealth c ounseling , from Webster University .

PetitionerÔs cumu lative GPA upon graduation was 3.550. He also holds a

master Ô s degree in c linical m ental h ealth c ounseling and m arriage and f ami ly

t herapy.

4 . Mr. Breznitsky is the owner of Beachside Recovery Interventions and

Consulting (ÑBRICÒ) , for which he has received positive online reviews for his

work. BRIC provides interventions, peer support groups, educational

seminars, human traffick ing investigation, and expert witness services. As

part of his position at BRIC, Mr. Breznitsky has testified as an expert

witness in substance use, mental health assessment, and treatment services

in six different counties in Florida. Mr. Breznitsky also provides services to

the Brevard County SheriffÔs Office Gang Unit, Drug Unit, and Sex Crimes

Unit . He sits on several task forces including the Brevard County Opioid

Task Force, the Brevard County Human Trafficking Task Force, and the

Brevard County Preve ntion Coalition .

Application Process

5 . On May 18, 2020, Mr. Breznitsky submitted his app lication for

registration as a mental health counselor i ntern to the Board.

6 . On May 21, 2020, the Board informed Petitioner that his application

was not complete an d that additional documentation and information was

needed related to p rior disciplinary action and criminal history.

7 . Mr. Breznitsky timely submitted the requested documentation and his

application was completed on July 6, 2020, when the Board received official

transcripts from Webster University. The Board obtains criminal history

background screening for applicants i n addition to any crimes disclosed by

the applicant .

8 . On August 6, 2020, pursuant to notice, Mr. Breznitsky appeared before

the Board a t a scheduled Board meeting.

9 . Members of the Board questioned Mr. Breznitsky regarding his

criminal and educational discipline history at the August 6, 2020 , Board

meeting . The Board, acting within their authority, passed a vote that

require d Mr. Brezni tsky to appear at one of the next two board meetings, and

to provide an evaluation from the Professional Resources Network (ÑPRNÒ)

indicating that he is able to practice as a r egistered m ental c ounselor i ntern

with reasonable skill and safety.

10 . On Nove mber 5, 2020, Mr. Breznitsky appeared before the Board at a

Board meeting as instructed .

11 . A t the November 5, 2020 , B oard meeting , t he Board voted to deny

Mr. Breznitsky Ôs application for registration as a m ental h ealth c ounselor

i ntern . O n November 19, 2020, the Board filed its Notice in this matter.

12 . It is undisputed that Mr. Breznitsky has met all requirements for

licensure as a mental health counselor intern . However, there was a question

about whether he could practice with reasonable skill and safety to patients.

Fact Witness Testimony

13 . Petitioner presented multiple witnesses to attest to his ability to

practice with reasonable skill and safety based upon personal observations

and experience with Petitioner. T he witnesses presented were fa miliar with

working with him in various environments.

14 . Jack Platt, a personal injury and criminal defense attorney , has been

practicing law for more than 27 ye ars. Mr. Platt represent ed Mr. Brez n itsky

in a criminal matter. Due to this representation, Mr. Platt has knowledge of

Mr. BreznitskyÔs prior criminal issues.

15 . Mr. Platt currently refers his criminal defense clients with substance

abuse issues to Mr. Breznitsky to help them with seeking treatment and

recovery. Mr. Breznitsky testifies in cou rt on behalf of these clients to help

redirect their sentences from incarceration to treatment.

16 . While Mr. Platt does not socialize with Mr. Breznitsky, of most

importance in this matter, he sees him in professional settings, including

court. Mr. Plat t credibly testified that he has never seen Mr. Breznitsky

impaired by use of drugs or alcohol.

17 . When asked if he believed that Mr. Breznitsky would pose a danger to

the public healt h or safety and if he should be granted the ability to practice

as a mental health counselor intern, Mr. Platt unequivocally testified that he

didnÔt b elieve he would be a danger and that the profession would benefit

from him being a part of it. Specifically , Mr. Platt testified that

ÑMr. Breznitsky gives these people these tools to deal with, not only the

clients but the family. And he helps them move forward and become

contributing members of society.Ò Mr. PlattÔs testimony is credited.

18 . Dr. Beth Mahoney, another witness familiar with Mr. Breznitsky in a

professional s etting, is a licensed medical doctor and has been practicing as a

psychiatrist for over 25 years. Dr. MahoneyÔs practice focuses on patients

with addiction issues , tr auma , and post - traumatic stress disorder (ÑPTSDÒ) .

Dr. Mahoney practices in the same build ing, and in collaboration, with

Mr. Brez nitsky. Mr. Breznitsky Ôs business refers approximately four to five

patients to Dr. Mahoney each month.

19 . Dr. Mahoney sees Mr. Breznitsky at the office daily. They also interact

and discuss p atients. She has neve r seen Mr. Breznitsky impaired by use of

drugs or alcohol, nor has she seen him do anything that would make her

doubt his ability to be a mental health counselor intern. Moreover,

Dr. Mahoney believes that he would be very good at practicing as a mental

he alth counselor intern as he is able to evaluate patients quickly and get

them the help they need. Dr. MahoneyÔs testimony is found to be credible.

20 . R espondent has asserted that Dr. Mahoney has a financial interest in

the success of Dr. Breznitsky being granted a license. However, the

undersigned finds that the business relationship has no bearing on the issue

of whether he is able to practice with competency or reasonable skill and

safety. She credibly testified that she has never observed him impaired and

she does not believe that he would pose a danger to others. In addition, she

believes he would be an asset to the profession as a mental health counselor

intern. Moreover, the referral rel ationship is currently with Mr. BreznitskyÔs

company and it woul d not be impacted whether he is granted a license as he

is not required to hold a license to continue the relationship.

21 . Gregory Richter , who has served in law enforcement for approximately

20 years , created the ÑComing CleanÒ documentary after the death of his

brother from a drug overdose. Mr. Richter had interactions with

Mr. Breznitsky both during the filming of the documentary and for showings,

both locally and out of state, of the documentary after its completion. In

addition to interactions re lated to the documentary, Mr. Richter has had

social interactions with Mr. Breznitsky as well.

22 . Due to the creation of the doc umentary, individuals with substance

abuse issues request Mr. RichterÔs help . Mr. Richter recommends

Mr. Breznitsky to these individuals .

23 . Mr. Richter testified that he has never seen Mr. Breznitsky in a

professional or personal setting impaired on drugs or alcohol , and does not

believe he would be a danger to public health or safety should he be granted

his registered menta l health counselor intern license . Mr. RichterÔs testimony

is found to be credible.

24 . Susan Deane, licensed mental health counselor, a licensed marriage

and family therapist, and a licensed qualified supervisor , also provides her

services to BRIC.

25 . Mr. Breznitsky interned with Ms. D eane during his graduate program ,

an d she has been his mentor since that time . As part of her work with BRIC,

Ms. Deane reviews and approves Mr. BreznitskyÔs substance abuse and

mental health evaluations. Prior to signing any evaluation, Ms. Deane also

discusses the patient and the evaluation with Mr. Breznitsky. T he evaluation

discussion s routinely occur four to five times per week . Thus, Ms. Deane has

many opportunities to assess his competency in the professional settin g. She

credibly testified that ÑheÔs extremely thorough.Ò Ms. Deane would serve as

Mr. BreznitskyÔs qualified supervisor if he is granted a license.

26 . Christopher Kiesel is a private investigator who has focused primarily

on criminal defense and due pro cess investigations for approximately

10 yea rs. Mr. Kiesel was instrumental in helping Mr. Breznitsky start the

operation of BRIC and in helping him establish relationships with people he

would need to perform his job effectively .

27 . Mr. Kiesel works wit h Mr. Breznitsky on criminal defense cases when

they share a common client. Mr. Kiesel has never seen Mr. Breznitsky

impaired by use of drugs or alcohol. Mr. Keisel has never seen Mr. Breznitsky

do anything that would make him doubt Mr. BreznitskyÔs abilit y to be a

mental health counselor intern nor does he believe that if Mr. BreznitskyÔs

license was granted that he would be a danger to public health or safety.

Mr. KieselÔs testimony is also credited.

28 . Based on the testimony of five fact witnesses, t he re was no testimony

of client care or attendance issues. There was no evidence of any incidents

that would raise any concern that Petitioner was impaired in any way while

working or in a personal setting.

29 . The Board offered no witnesses or evidence to rebut the testimony of

PetitionerÔs lay witnesses regarding any incidents that demonstrate

Petitio ner is unable to practice with reasonable skill and safety or whether he

is competent to practice as a mental health counselor intern.

PRN Review

30 . The B oard directed Petitioner to undergo an evaluation with PRN to

determine whether he is safe to practice with reasonable skill. Mr. Breznitsky

contacted PRN a s directed by Board . Petitioner first submitted to an intake

interview with the PRN Intake Case M ana ger, Kim Simon. In addition to the

intake interview, PRN obtained available information from the Board. After

the intake interview, the intake team met to review and discuss

Mr. BreznitskyÔs file . The members of the intake team included: Dr. Polles ;

Willia m Jacobs, M.D ( associate medical director ) ; Delana Torrance ( case

manager supervisor ) ; Ms. Simon ( intake case manager ) ; and Miranda Ivy

( administrative support ) . Dr. Polles was the only member from the intake

team who testified at the final hearing. Based on the review, the intake team

was concerned that Mr. Breznitsky could be impaired and an independent

evaluation was ne cessary . PRN then notified Mr. Breznitsky about the intake

teamÔs determination and h e was given the names and contact information

for th ree evaluators approved by PRN whom he could choose for the

evaluation .

31 . Petitioner selected Dr. Lawrence Wilson to perform the independent

evaluation. A proper evaluation to diagnose an alcohol or substance use

disorder requires obtaining a past histo ry, current use information, and

validating information with objective testing. The intake interview and

information provided to PRN from the Board was forwarded to Dr. Wilson,

along with a letter which requested what was needed for PRN to make their

deter mination regarding PetitionerÔs ability to practice safely.

32 . The Board presented Dr. Wilson as an addiction medicine expert who

evaluated Respondent. He is board - certified in addiction medicine . Dr. Wilson

was a urologist until substance abuse impaired his ability to practice

medicine, and he entered t he PRN program. A fter successful completion of

the PRN program, he pursue d addiction medicine. He completed a two - year

fellowship in addiction medicine at the Drug Abuse Comprehensive

Coordinating Office ( DACCO) in Tampa from 2010 to 2012 . H e work ed at

DACCO and eventually became its associate medical director. He currently

serves as the CEO and medical director at Seven Summit Pathways , a

private treatment facility in Tampa , which is a residential and outp atient

medication - assisted substance abuse treatment facility. As the medical

director of Seven Summit Pathways, he is responsible for patientÔs medical

care. Dr. Wilson also routinely conducts evaluations for PRN.

33. Dr. Wilson has held teaching positi ons in addiction medicine at the

University of Florida in the Department of Psychiatry, and in the

Department of Psychiatry and Neurobiology at the University of South

Florida. He is a certified m edical review officer and is qualified to interpret

laborato ry test results for substances detected in laborator y test samples .

34. Mr. Breznitsky submitted to an in - office urine test, which detects the

presence or absence of certain drugs and sub stances. The urine tests detect

the presence of alcohol for 24 hours prior to testing and alcohol

metabolites for two to three days after drinking. Mr. BreznitskyÔs test

returned negative.

35. On September 18, 2020 , Dr. Lawrence Wilson conducted an

independent medical evaluation of Mr. Breznitsky . The evaluation included a

personal interview an d examination of Mr. Breznitsky, and collection of hair

and blood samples for forensic drug and alcohol analysis.

36 . On October 2, 2020, Dr. WilsonÔs office collected another hair sample

to perform a second drug test. The first hair sample, while being

presumptively positive for cocaine, did not have sufficient hair in the sample

for a definitive determination. The second hair test was positive for cocaine

and cocaethylene.

37. Dr. Wilson Ôs evaluation was based on his examination and interview;

the reports on the three drug tests he performed on Respondent; the PRN

intake information; interviews of witnesses iden tified by the Petitioner; a

psychological report prepared by PetitionerÔs psychologist Dr. Eyring; and

PetitionerÔs prescrip tion for alprazolam , 2 a benzodiazepine .

38. Dr. Wilson diagnosed Mr. Breznitsky with alcohol use disorder of

moderate to possibly severe based on his evaluation. He testified that

Mr. Breznitsky consumed alcohol in larger amounts over a longer period of

time than intended; his inability to control his alcohol use issues resulting in

a failure to fulfill a major obligation at work; and his recurrent alcohol use in

situations in which it was hazardous, i.e. , driving while under the influence

of alcohol. T o support his opinion , he identified incidents from

M r. BreznitskyÔs past history but could not point to any incidents that

2 The brand name for Alprazolam is Zanax.

demonstrated Mr. Breznitsky is unable to practice with reasonable skill and

safety . 3

3 9 . Dr. WilsonÔs evaluation was provided t o PRN upon completion and

reviewed by the intake team to determine the best decision for public safety

and Petitioner. Dr. Polles testified that Dr. Wilson addressed the intake

teamÔs concerns in his evaluation and his documented findings gave support

to h is final diagnoses and recommendations. PRN acc epted Dr. WilsonÔs

findings.

40 . PRN provided a copy of Dr. W ilsonÔs evaluation to Mr. Breznitsky .

Petitioner disagreed with Dr. WilsonÔ s findings and recommendations. Due to

his dissatisf action with Dr. Wilso nÔs findings , Mr. Breznitsky was offered a

second evaluation by another evaluator approved by PRN . However,

Petitioner declined a second evaluation . Mr. Breznitsky was then offered

al ternative treatment solutions, w hich Mr. Breznitsky also declined. Based in

part on Dr. WilsonÔs opinion and the intake teamÔs review of Mr. BreznitskyÔs

history, PRN determined Petitioner is not able to practice and is a serious

danger to the safety and welfare of the public.

3 Dr. Wilson testified that he based his decisions regarding his diagnosis on several factors

that are based on incidents that occurred more than 10 years prior to his evaluation of

Mr. Breznitsky. His testimony was as follows:

Q: È You say that he uses in larger amounts or over a longer

period than intended, what did you base that on?

A: Well, heÔs drinki ng large shots of 151 rum. HeÔs drinking

excessive amounts of alc o hol.

Q: Can you tell me the last time he drank 151 rum?

A: No. And like I told you before itÔs moot.

Q: È What major role obligations has he failed to fulfill?

A: He had issues in school, well, I donÔt know if he lost his

employment. He certainly lost his job. He lost his occupation

because he was arrested. È

Q: In the last ten years, what major role obligations has he

failed to fulfill?

A: DonÔt know.

QÈ In the last ten years, when has he used in physically

hazardous conditions?

A: DonÔt know.

4 1 . By letter dated Octo ber 27, 2020, Dr. Polles c ommunicated to the

Board that Dr. Wilson diagnosed Mr. Breznitsky with a lcohol u se d isorder,

moderate to severe; s timulant (Cocaine Type) u se d isorder, mild to moderate;

s edative h ypnotic a nxiolytic u se, evaluate for use disorder; history of

g eneralized a n xiety d isorder; and stressors including professional licensure,

employment, and substance use. She further communicated that Dr. Wilson

recommended a residential , partial hospitalization program with housing.

Petitioner requested an agreement to intensive outpatient treatment. PRN

denied the request.

Dr. Bowen Ôs Testimony

4 2 . Petitioner presented expert testimony of Dr. Duncan Bowen to refute

Dr. WilsonÔs opinions . Dr. Bowen, a psychotherapist, is a license d mental

health counselor , the same professional l icense that Mr. Breznitsky would

ultimately pursue . Dr. Bowen has been practicing for more than 40 years

with experience in mental health and substance abuse issues. Dr. Bowen is

not board - certified in addiction m edicine or addiction psychiatry, and he doe s

not hold the kinds of certifications Dr. Wilson holds. However, he has

performed evaluations of licensed healthcare providers. In addition,

Dr. Bowen has testified as an expert witness hundreds of times with the

majority of those cases being for drugs, a lcohol, and mental h ealth issues.

Dr. Bowen disagreed with Dr. WilsonÔs findings, including his conclusion that

Mr. Breznitsky has a lifetime alcohol use disorder.

4 3 . Dr. Bowen conducted an evaluation of Mr. Breznitsky. Dr. Bowen met

with Mr. Breznitsky on three se parate occasions for interviews , he considered

documents that he received ; conducted independent int erviews with

Mr. Breznitsky's colleagues; obtained past history; performed an in - office

urine alcohol and substance screening test ( Precision Pl us U rinalysis -

13 Panel Screen) ; and conducted a Minnesota Multiphasic Personality

Inventory - 2 ( ÑMMPI - 2 Ò ) personality test of Petitioner.

4 4 . Dr. Bowen testified that the MMP I - 2 test is one of the most researched

inventories in the United States to deter mine an individualÔs personality

traits and one of the most recognized tests within the legal system.

4 5 . Dr. Bowen completed training on administering the MMPI - 2 test and

interpretation of its results. Additionally, Dr. BowenÔs doctoral thesis

involved the administration and interpretation of MMPI - 2 test resul ts.

During his professional career, Dr. Bowen has administered the MMPI - 2

thousands of times. The early part of his career involved administering and

interpreting MMPI - 2 results for applicants to th e Brevard County SheriffÔs

Office to ensure that they were psychologically and emotionally fi t to be

sheriffÔs deputies. He currently routinely administer s and interprets the

MMPI - 2 when he is working with client s with potential mental he alth or

substance abuse issues.

4 6 . Dr. Bowen collected the urine sample for the Precision Plus urine test.

He performed the test by standing outside the office restroom with the door

cracked while Petitioner was in the restroom. After collection of the sample,

Dr. Bowen read the reactive panel on the specimen cup, which was negative

for all substances. The Precision Plus test screens for alcohol ingestion within

the previous 24 hours and cocaine for three days.

4 7 . After the evaluation, Dr. Bowen concluded that ÑMr. Brez nitsky is not

a danger to himself, children, or the community at large. He has the ability to

make sound assessments and decisions in life matters. He is not a danger to

clients with whom he may provide mental health or substance abuse

counseling.Ò

4 8 . S imilarly, a t the f inal hearing, Dr. Bowen testified that in his opinion,

Mr. Breznitsky would not be a danger to public health and safety and that he

would be able to practice safely if he were granted his mental he alth

counselor intern license.

4 9 . The Board disputed the MMPI - 2 validity and result s. Dr. Aufderheide

testified that Dr. BowenÔs report did not indicate whether Dr. Bowen gave

Mr. Breznitsky required instructions on taking the test , and he disputed

whether a mental health examination was perf ormed prior to the test being

administered.

50 . However, Dr. Bowen testified that he conduc ted a mental health exam

on Mr. Breznitsk y and gave him the required instructions prior to

administering the MMPI - 2 . Further, he testified that he made sure

Mr. Br eznitsky was alone in a secure room, with periodic monitoring, while

the test was being conducted.

5 1 . The Board disputed the results of the MMPI - 2 becau se the results

were reported as Ñmarginally valid . Ò The Board suspected the report was

Ñmarginally va lidÒ due to Mr. Breznitsky painting himself in a favorable

light. The Board challenged Dr. BowenÔs testimony on the basis that he relied

upon the results of the Ñmarginally validÒ MMPI - 2. Dr. Bowen testified that

when formulating his opinion , he took into consider ation that the MMPI - 2

results were Ñm arginally valid , Ò but did not rely solely on the result in his

evaluation of Mr. Breznitsky. Dr. Bowen testified that he considered the

MMPI - 2 , his clinical observations during the evaluation , and his 30 years o f

experience working with drug, alco hol, and mental health clients to reach his

conclusion that Mr. Breznitsky was safe to practice as a registered mental

health counselor intern.

5 2 . R espondent also challenged the urinalysis test conducted by

Dr . Bowen on the basis that he collected a urine sample that was not

physically Ñobserved.Ò Dr. Polles questioned the results of the panel test used

by Dr. Bowen and explained that t he panel tests are screening tools,

inaccurate, and not appropriate for independent evaluations for substance

use disorders. The question raised was whether there was an opportunity for

tampering with the test results without someone directly observing the

production of the urine sample. Dr. Bowen credibly testified that the method

he use d to administer the test was standard industry practice among priva te

practitioners . There was also no credible evidence of fered at hearing to

demonstrate that Mr. Breznitsky tampered with the urine sample . T he

urinalysis test administered by Dr. Bow en ret urned negative for substances

teste d on that date and the results are accepted.

Dr. Polles Ô Testimony

5 3 . Respondent offered the testimony of Alexandria Polles, M.D. , the

medical director and CEO of PRN. PRN is designated as one of the State of

FloridaÔs impaired practitioner programs. It serves as a consultant to the

Florida Department of Health on matters of practitioner impairment. The

mission of PRN is to protect public health, safety, and welfare. It oversees the

process for evaluation of professiona ls referred to the program, if needed, and

provides monitoring of recommended treatment.

5 4 . Dr. Polles is certified by the American Board of Psychiatry and

Neurology , the Ameri can Board of Addiction Medicine , and is a Fellow of the

American Psychiatric Association. Dr. Polles has served on the faculty of the

University Medical Center at the University of Florida, and at the

Osteopathic School of Medicine in Hattiesburg, Mississippi. She has authored

a number of peer - reviewed articles, contributed to text s, and given many

lectures.

5 5 . Dr. Polles testified that evaluators approved by PRN must have

experience in the area of concern for the evaluation. Moreover, evaluators

approved by PRN are required to attend an annual meeting to review what

their evaluat ions must include.

5 6 . Dr. Polles explained that in addition to the collection of information,

PRN requested certain laboratory tes ts to assist in the evaluation, which

included an Ñ observed Ò urine test, a blood test for alc ohol use, and a HairStat

test.

5 7 . ÑObservedÒ urine tests means that a health care provider actually

observes urine directly collected in the specimen cup. Dr. Polles testified that

Ño bservation Ò prevents substitution or tampering with the specimen by t he

donor.

5 8 . Dr. Polles did no t evaluate Mr. Breznitsky , as she does not perform

evaluation s . Thus, her testimony does not offer a first - hand assessment of

whether Mr. Breznitsky could practice as a registered mental health

counselor intern with reasonable skill and safety. However, Dr . Polles

accepted Dr. W ilsonÔs conclusion that Petitioner is not safe to practice

without tre atment. She further testified that based on her training, alcohol

use disorder is a lifet ime illness.

Dr. Aufderheide Ôs Testimony

5 9 . Respondent also presented Dr . Aufderheide as an expert. Like

Dr. Polles , he did not evaluate Mr. Breznitsky and offered no opinions related

to whether he has any mental health or substance abuse disorders or

whether Mr. Breznitsky could practice as a mental health counselor intern

wi th reasonable skill and safety.

60 . Dr. Aufderheide has been chief of mental health services with the

Florida Departm ent of Corrections for 17 years . Dr. A ufderheide ensures that

all psychiatrists, psychologists, and mental health professio nals are

approp riately licensed and credentialed. He has been licensed as a

psychologist in Florida since 1993, and is Board - certif ied in correctional

psychology.

6 1 . Dr. Aufderheide was offered as an expert in treating mental health

practitioners for mental health dis orders and substance abuse, and co -

occurr ing morbidities.

6 2 . Dr. AufderheideÔs testimony focused in part on the MMPI - 2 test

administ e red by Dr. Bowen. Similar to Dr. BowenÔs explanation,

Dr. Aufderheide testified that the MMPI - 2 is a psychological test t hat

measures psychopathology, psychological and behavioral dysfunction, and

personality traits . Dr. Aufderheide believes the MMPI - 2 is not intended to be

used by professionals to interpret mental status evaluations and other tests.

6 3 . Although Dr. Aufder heide was concerned with the ev aluation

performed by Dr. Bowen, those concerns were persuasively addressed

through Dr. BowenÔs testimony at the final hearing. Thus, the undersigned

finds that Dr. BowenÔs evaluation and conclusions are credited .

Dr. Abbas Ô Testimony

6 4 . Dr. Abbas , a forensic toxicologist , testified at the hearing as well. He

works for United States Drug Testing Laboratories (USDTL) . USDTL tests

biological samples for drugs, as well as alcohol biomarkers . Dr. Abbas was

familiar with the testi ng of the urine sample provided by Mr. Breznitsky.

6 5 . Dr. Abbas is currently the manager of the certifica tion department

that reports all the positive results reported out of USDTLÔs laboratory.

6 6 . The parties stipulated to the validity of the two test results , i.e. , the

Hair S tat Specimen No. 7374951 (the hair test) and the PEth test ( blood test ) ,

which w ere both processed by USDTL .

6 7 . The PEth test uses a sample of dried blood.

6 8 . Regarding the PEth test, Dr. Abba s Ô testimony was critical as it

perta ined to Dr. WilsonÔs opinion regarding the frequency and the last time

Mr. Breznitsky consumed alcohol. Most important, h is testimony rebutted

Dr. WilsonÔs testimony pertaining to the ability to determine the frequency of

consumption of alcohol during a sp ecified time period. Specifically, he

testified that Ñ he could only report if the test is positive or negative. He could

not state how much alcohol a person consumed in the last 28 days ; he could

not state how frequently a person consumed alcohol in the la st 28 days ; and

he could not state the quantity a person con s umed in the last 28 days. Ò

6 9 . Dr. Abbas determined that PetitionerÔs PEth test results were positive

for phosphatidylethanol at 181 nanogram per milliliter. The PEth test results

also reference d a confirmed cutoff of 20 nanograms per milliliter. The cut off

is an industry - wide value that is used as a threshold , and a ny specimen

measured at 20 and above is considered to be positive. T he initial testing was

done on a similar instrument that the co nfirmatory testing is done using

liquid chromatography mass spectrometry.

70 . Dr. Abbas further testified to the results confirmed by USDTL from

PetitionerÔs second hair sample taken by Dr. WilsonÔs office. The results were

reported positive as follows: 1 ) Benzoylecgonine : positive 524 pg/mg ;

2 ) Cocaine : positive 2595 pg/mg ; and 3 ) c ocaethylene : positive 773 pg/mg .

7 1 . Dr. Abbas explained that hairs are a reservoir matrix where drug s

collect and degrade over time. Therefore, whenever a reservoir matrix is

examined , you cannot pinpoint when somebody used it, how much they used

it, and how often they used it. It simply reflects that an individual used a

certain substance with in the three - month period prior to collection and/or

was exposed to it.

7 2 . Dr. Abb asÔ ultimate conclu sions from the test results for

Mr. Breznitsky were that they were negative for: amphetamines, opiates,

PCP, and ca nnabinoids . The results were presumptive positive for cocaine

and were confirmed positive for: benzoylecgonine, cocaine, a nd cocaethylene .

Mr. BreznitskyÔs Testimony

Personal and Criminal Background

7 3 . Mr. Breznitsky acknowledged that he has a criminal history and a

past with substance use. His criminal history began more than 10 years prior

to submitting his application for registration as a mental health counselor

intern. T he most recent criminal conviction involving alcohol , occurred in

2007.

7 4 . Mr. BreznitskyÔs substance use , which contributed to his criminal

history , stemmed from stress related , in part, to loss o f key family members .

He testified that his mother, grandmother, and grandfather died within a

two - year time period. Due t o the stress of the deaths, Mr. Breznitsky began

drinking heavily. Following the separation from his long - time girlfriend of

five year s , M r . Breznitsky began drinking more heavily on a daily basis.

Petitioner subsequently had three D riving Under the Influence (DUI ) arr ests

within an 18 - month period. His first arrest occurred in April 2005. He was

placed on probation, completed a DUI Leve l I course, and had a six - month

licens ure suspension. Mr. BreznitskyÔs second DUI occurred in 2007. His

third DUI occurred a few days after he posted bail from his secon d DUI and

both cases were consolidated. Additionally, Mr. Breznitsky reported that,

whi le in high school, he was arrested for Criminal Mischief while drinking

alcohol .

7 5 . In 2011, while still on probation, he was a passenger in a car driven by

his friend who was pulled over . He was charged with a Violation of Probation

( Ñ VOP Ò ) for being o ut of the county and not informing hi s Probation Officer.

There was no evidence offered at hearing that he was intoxicated or that

alcohol was involved. He was arrested for the VOP offense and spent nine

and a half months in prison.

7 6 . There has been no subsequent involvement with law enforcement for

DUI or involving al cohol since 2007.

7 7 . Mr. Breznitsky has presented persuasive evidence that he has

changed his life since his last known criminal offense . Mr. Breznitsky has

owned BRIC for a number of ye ars , and has received awards from the

community for his work. Mr. Breznitsky has been married and has been

approved to adopt his two children.

7 8 . To the contrary, the Board did not present any competent substantial

evidence of behavior that demonstrated Mr. Breznitsky has not been

rehabilitated from his criminal past since his last criminal offense.

Mr. Breznitsky Ôs Treatment History

7 9 . Petitioner admitted that Ñhe used cocaine when he drank alcohol ; he

never really experimented too much outside of t hat but ultimately just

became a completely different person, and I drank to numb my emotions. I

drank to cope with trauma; I drank to cope with depression, shame, guilt,

famil y stuff, the loss of my mother.Ò In 2009 , Petitioner was required to

complete a 12 - month Residential program where he was treated for alcohol

use disor der at Phoenix House in Ocala. Mr. Breznitsky even tually continued

treatment at Phoenix House on a Partial Hospitalization Plan/Intensive

Outpatient Program basis, completing a total of 18 months of treatment. He

was placed on five years Ô criminal probation and had his driving privileges

suspended for five years with t he requirement that he have an i nterlock

device placed for six months once returning to driving. H is treatment did not

in volve treatment with a psychiatrist nor was he prescribed psychotropic

medications. While in treatment, he had an introduction to Twelve Step

Recovery and attended N arcotics Anonymous meetings . Mr. Breznitsky

remained sober during his 18 months at Phoenix House and continued to

abstain f rom alcohol for approximately 3 to 4 years , after which time,

abstinence from alcohol was no longer required as part of his treatment.

Mr. Breznitsky Ôs Recovery Plan

80 . Mr. Breznitsky testified that while in treatment , he focused on PTSD,

depression, self - harm, and personal mental health recovery because those

were the stressors that led to his alcohol use. He indicated that he regularly

sees his therapist, c heck s in with his supervisors, maintains close friends,

and ensur e s that he engag es in self - care.

8 1 . Additionally, a t hearing , Respondent testified that he currently

maintains his sobriety by regularly eating breakfast each morning, meeting

with his pastor on a weekly basis , attending church on Sundays , regularly

exerc ising , and us ing a sensory deprivation tank.

8 2 . Dr. Aufderheide was asked to opine on whether PetitionerÔs recovery

plan of attending church , regularly engaging with colleagues and close

friends, surfing, exercis ing, and refuge recovery, would be recogniz ed by the

medical community. He did not offer an opinion regarding the efficacy of the

tr eatment plan recommended by Dr. Wilson. However, he suggested that a

recovery plan should include drug tes ting.

Ultimate Findings of Fact

83. In general, Dr. Wilson w as concer n with the frequency and amount of

alcohol Mr. Breznitsky was consuming. His concerned stemmed from his

belief that Mr. Breznitsky had recently drank with such frequency that it

would affect his ability to practice as a mental health intern with r easonable

skill and safety. However, there was not sufficient competent substantial

evidence to demonstrate that Mr. Breznitsky exhibited behavior to

demonstrate he was impaired.

84. The positive test results for alcohol and coathelylene is significant.

Ho wever, the positive test results alone do not prove Mr. Breznitsky is unable

to practice safely as a registered mental health intern.

85. Dr. Wilson testified that he diagnosed Mr. Breznits ky with alcohol use

disorder moderate to severe , because he believe d Mr. Breznitsky consumed

alcohol in larger amounts over a longer period of time than intended; his

inability to control his alcohol use issues resulting in a failure to fulfill a

major obligation at work; and his recurrent alcohol use in situations in whi ch

it was hazardous , i.e. , driving while under the influence of alcohol. He also

diagnosed him with cocaine - type use disorder of mild to moderate severity.

86. At the final hearing, Dr. Wilson maintained his opinion that

Mr. Breznitsky was not safe to prac tice as a registered mental health intern

based in part on his Ñ suspicions that [Mr. BreznitskyÔs] use was more recent

than three months ago because now the three - month window has moved two

weeks additional yet heÔs still testing positive . Ò 4 In addition, t hey were based

4 At the final hearing , Dr. Wilson testified regarding his suspicions on more than one

occasion when formulating his opinion about Mr. BreznitskyÔs ability to practice as a

registered mental health i ntern. H is testimony about his suspicions include , but are not

limited to , the following :

Q: Yeah letÔs take them one at a time and look at some of the

comments that you made in those and what they were based

on. Dimension 1, what was your conclusion ther e?

A: I felt he was at a moderate risk for being intoxicated based

on the discrepancy between what he was telling me and the

laboratory result of his PEth test. They were incongruent.

And I believe I did not k n ow for sure how much this

gentleman was drink ing. So I claimed he was at moderate

risk, and I felt he was event at moderate risk for going

through alcohol withdrawal if he keeps drinking based on the

fact that they didnÔt know how much he was drinking, but I

knew he had a very high PEth test.Ò

in part on assumptions that were not proven at the hearing and more

importantly, on facts that were based on incidents from Mr. BreznitskyÔs past

history that occurred at least 10 years before his evaluation.

87. Dr. WilsonÔs opinions appea red to be influenced by his honest and

genuine belief that Mr. Breznitsky would benefit from the care and treatment

he could receive as a participant in PRN. He may well be correct. At best, he

demonstrated that Mr. Breznitsky was not able to practice with reasonabl e

skill and safety more than 10 years before his evaluation . However, the issue

is not whether there is suspicion or a risk of Mr. Breznitsky being unsafe to

practice, but rather the issue is whether he is unsafe to practice at this time.

Nothing in the record demonstrated that Mr. Breznitsky was a danger while

working with clients or patients. T he evidence taken as a whole is not

sufficient competent and substantial evidence that Mr. Breznitsky is now

unable to practice as a registered mental hea lth intern with reasonable skill

and safety by reason of illness or use of alcohol, drugs, narcotics, or

chemicals, or any other type of material, or as a result of any mental or

physical condition.

C ONCLUSIONS OF L AW

8 8 . DOAH has jurisdiction over the par ties and subject matter of this case,

pursuant to sections 120.569 and 120.57(1).

8 9 . Chapte rs 456 and 491 , and Florida Administrative Code Rule 64B4 - 5

regulate mental health counseling.

90 . Section 491.0045 establishes the requirements for licensure as a

mental health counselor intern and provides that the D epartment Ñ shall

Q: And , Doctor what about the cocaine use that was

mentioned in there as well?

A: Well, I again, I know he was using cocaine. ThatÔs evident

by the tests. He reported it. I did not know how often. I could

not tell. My suspicion was this was not a --- his test re sult was

more than likely due to multiple uses over a period of time,

more than likely, but I had no knowledge to prove otherwise,

but I was suspicious.Ò

register Ò an applicant that satisfies the applicable provisions of sections

491.0045 and 491.005.

91 . Pursuant to section 456.072(2), the Board has the authority to deny an

app licati on for registration as a mental health counselor i ntern upon finding

a violation of any of the grounds for discipline contained in section

456.072(1).

92 . Section 456.072( 1 ) provides that certain acts shall constitute grounds

for which disciplinary action may be taken. Section 456.072( 1 )(z) provides as

follows:

(1) The following acts shall constitute grounds for

which the disciplinary actions specified in

subsection (2) may be take n:

(z) Being unable to practice with reasonable skill

and safety to patients by reason of illness or use of

alcohol, drugs, narcotics, c hemicals, or any other

type of material or as a result of any mental or

physical condition .

93 . Pursuant to section 491.009(2), the Board has the authority to deny an

app lication for registration as a mental health counselor i ntern upon finding

a violati on of any of the grounds for discipline contained in sect ion

491.009(1) .

94 . S ection 491.009(1) establishes grounds for denial of a license or

disciplinary action, as specified in section 456.072(2 ) , including under section

491.009(1)(p) :

Being unable to practice the profession for which he

or she is licensed, registered, or certified under this

chapter with reasonable skill or competence as a

result of any mental or physical condition or by

reason of illness; drunkenness; or excessive use of

drugs, narco tics, chemicals, or any other substance .

9 5 . Section 456.003(1) establishes the Legislature's intent Ñ that persons

desiring to engage in any lawful profession regulated by the [Department]

shall be entitled to do so as a matter of right if otherwise quali fied. Ò Section

456.003(2) further describes the Legislature's intent that such professions are

regulated to preserve the public health, safety, and welfare.

96. Section 456.013(3)(c), provides:

I n considering applications for licensure, the board,

or the d epartment when there is no board, may

require a personal appearance of the applicant. If

the applicant is required to appear, the time period

in which a licensure application must be granted or

denied shall be tolled until such time as the

applicant appear s. However, if the applicant fails to

appear before the board at either of the next two

regularly scheduled board meetings, or fails to

appear before the department within 30 days if

there is no board, the application for licensure shall

be denied.

97. The plain language of section 456.013(3)(c) authorizes the board to

requ ire that an applicant personally appear before the board.

9 8 . Petitioner, as the license applicant, has the burden to prove by a

preponderance of the evidence that he meets the require ments for

certification in this licensing case. See DepÔ t of Child. & Fams. v. Davis Fam.

Day Care Home , 160 So. 3d 854, 857 (Fla. 2015); DepÔt of Banking & Fin. v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996) (holding that an applicant for

licensure ha s the burden to prove his entitlement to the license);

§ 120.57(1)(j), Fla. Stat.

9 9 . Petitioner also bears the burden of demonstrating that he is entitled to

licensure. Dep Ô t of Child. & Fams. v. Davis Fam. Day Care Home , 160 So. 3d

at 857; Dep Ô t of Ban king & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern

& Co. , 67 0 So. 2d at 934 (Ñ The general rule is that a party asserting the

affirmative of an issue has the burden of presen ting evidence as to that

issue.Ò ).

100 . A preponderance o f the evidence is evidence that, more likely than

not , tends to prove the proposition set forth by a proponent. Gross v. Lyons ,

763 So. 2d 276, 289 (Fla. 2000). See also Haines v. Dep Ô t of Child. & Fams. ,

983 So. 2d 602, 606 (Fla. 5th DCA 2008).

10 1 . In an application proc eeding, while the ultimate burden remains with

Petitioner to prove he meets the requirements for licensure , it is the Board's

burden to prove the specific acts or violations which it alleges are grounds for

denial and to produce competent, substantial evid ence to support those

reasons. See M.H. v. Dep Ô t of Child. & Fams. , 977 So. 2d 755, 761 (Fla. 2d

DCA 2008) ( Ñ Without question, an applicant for a license has the initial

burden of demonstrating his or h er fitness to be licensed. È But if the

licensing agen cy proposes to deny the requested license based on specific acts

of misconduct, then the agency assumes the burden of proving the specific

acts of misconduct that it claims demonstrate the applicant's lack of fitness to

be licensed. Ò ).

10 2 . In Florida, lic enses to practice are considered a privilege granted by

the State, not a right. See, e.g., Lescher v. DepÔ t of High. Saf. & Motor Veh. ,

985 So. 2d 1078, 1084 (Fla.2008); Borrego v. Ag. for Health Care Admin. ,

675 So. 2d 666, 668 (Fla. 1st DCA 1996).

10 3 . A s an administrative agency, the Board has Ñ particularly broad

discretion in determining the fitness of applicants who seek to engage in an

occupation in the conduct of which is a privilege rather than a right. Ò Osborne

Stern & Co. , 670 So. 2d at 934 (citin g Osborne Stern & Co. v. DepÔ t of Banking

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

dissenting ) ) .

10 4 . Based on the evidence offered at hearing, Petitioner me t his burden

of proof th at he is able to practice as a registered ment al health counselor

i ntern with reasonable skill and safety.

1 0 5 . There is not sufficient evidence in the record to find , by a

prepond erance of the evidence , that Mr. Breznitsky continues to have an

alcohol use and substance use disorder such that he would be an immediate,

serious danger to the public health, safety, and welfare.

R ECOMMENDATION

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

R ECOMMENDED that the Board of Clinical Social Work , Marriage and Family

Therapy , and Mental He alth Counseling issue a final order granting

Petitioner's applica tion for registration as a mental health counselor i ntern ,

which may include conditions to ensure PetitionerÔs continued sobriety.

D ONE A ND E NTERED this 11th day of February , 2022 , in Tallah assee, Leon

County, Florida.

S

Y OLONDA Y. G REEN

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 Hearings

this 11th day of Febr uary, 2022

C OPIES F URNISHED :

Timothy Frizzell, Esquire Stephen B. Burch, Esquire

Office of the Attorney General Smith & Associates

PL - 01, The Capitol Suite 540

Tallahassee, Florida 32399 709 South Harbor City Boulevard

Melbourne, Florida 32901

Robert Antonie Milne, Esquire

Office of the Attorney General John Benjamin Fricke, Esquire

The Capitol, Plaza Level 01 Office of the Attorney General

Tallahassee, Florida 32399 - 105 0 PL - 01, The Capitol

Tallahassee, Florida 32399

Kimberly Marshall, MPH, JD Louise St. Laurent, General Counsel

Executive Director Department of Health

Board of Clinical Social Work, Marriage 4052 Bald Cypress Way, Bin C65

and Family Therapy and Mental Health Tallahassee, Florida 32399

Counseling

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399

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.