           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4174
                  _____________________________

GERARD KRUSE,

    Petitioner,

    v.

STATE OF FLORIDA, DEPARTMENT
OF HEALTH IN RE: THE
EMERGENCY RESTRICTION OF
THE LICENSE OF GERARD KRUSE,
L.C.S.W.,

    Respondent.
                  _____________________________


A Petition to Review Non-Final Agency Action—Original
Jurisdiction.
                         April 16, 2019


WOLF, J.

    The issue before this court is whether an act of sexual
misconduct by a psychotherapist against a patient during a session
may support an emergency restriction on his license that prevents
him from treating patients of the opposite sex. Petitioner argues
there are insufficient allegations that the conduct would recur.*
We disagree. The allegations contained in the emergency order are


    *Petitioner raises a second issue. We deny relief on this issue
without further comment.
sufficient. The egregious, forceful, and intentional course of sexual
misconduct in this case and the potential danger to the public that
it presents supports the restrictions placed on petitioner’s license.

                        EMERGENCY ORDER

     Petitioner, Gerald Kruse, attempts to argue that this was a
single act of insufficient seriousness to support the restriction on
his license. The facts and conclusions laid out in the Order of
Emergency Restriction of License issued by the Department of
Health belie this assertion. In pertinent part the order states:

    3. At all times material to this order, Mr. Kruse worked
    as a clinical social worker . . . .

    4. On June 23, 2017, Patient L.P., a 27-year-old female,
    presented to Mr. Kruse for psychotherapy services.

    5. Mr. Kruse introduced himself to Patient L.P. as “Dr.
    G.” Patient L.P. assumed that Mr. Kruse was a doctor and
    believed that she could trust him based on his
    credentials.

    6. During the June 23, 2017, appointment Patient L.P.
    informed Mr. Kruse that she had a history of anxiety and
    post-traumatic stress. Patient L.P. informed Mr. Kruse
    that her post-traumatic stress was caused by her history
    of being sexually abused and a recent violent sexual
    attack.

    7. Mr. Kruse knew that Patient L.P. was especially
    vulnerable.

    8. Patient L.P. observed that Mr. Kruse was flirtatious
    with her during the June 23, 2017, appointment.

    9. Patient L.P. continued to go to Mr. Kruse for
    psychotherapy services on July 6, 2017, and July 19,
    2017.

    10. During these appointments, Mr. Kruse shared
    personal stories with Patient L.P. that were sexual in

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    nature. Mr. Kruse told Patient L.P. about his current life
    stressors and occasionally cried while he shared his
    stories with Patient L.P.

    11. During their appointments, Mr. Kruse asked to see
    pictures of Patient L.P. When Patient L.P. showed Mr.
    Kruse pictures of herself, Mr. Kruse told Patient L.P. that
    he thought she was attractive.

    12. On July 19, 2017, Patient L.P. informed Mr. Kruse
    that she was going to begin therapy sessions with another
    therapist.

    13. Mr. Kruse repeatedly told Patient L.P. that he was
    going to miss her.

    14. When Patient L.P. attempted to open the door to
    leave, Mr. Kruse grabbed Patient L.P.’s buttocks.

    15. Patient L.P. slapped Mr. Kruse’s hand and said
    “what the f[---], I’m married.”

    16. Mr. Kruse apologized and told Patient L.P. that he
    just found her “really attractive.”

    17. Patient L.P. attempted to open the door to leave
    again and Mr. Kruse grabbed Patient L.P.’s arm, pulled
    her close to him, and attempted to kiss her.

    18. Patient L.P. rebuffed his advance and pushed him
    away. Patient L.P. reiterated that she was married.

    19. Mr. Kruse told Patient L.P. that he thought she was
    attractive.

The order then makes the following important observations:

    20. Clinical social workers hold a position of power in the
    psychotherapist-patient relationship. Society entrusts
    clinical social workers to help vulnerable people in need
    of guidance. Mr. Kruse violated the psychotherapist-
    patient relationship when he discussed his personal life
    with Patient L.P. and then attempted to engage Patient
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    L.P. in sexual activity. Mr. Kruse knew that Patient L.P.
    was vulnerable, suffered from post-traumatic stress
    caused by sexual violence, and was in need of guidance
    and support, and still violated the psychotherapist-
    patient relationship by attempting to engage Patient L.P.
    in sexual activity.

    21. Mr. Kruse’s actions and disregard for the health of
    Patient L.P. show that he does not have the judgment or
    moral character to hold a position of power and trust. Mr.
    Kruse’s blatant disregard for the laws and rules
    regulating his profession indicates that this behavior is
    likely to continue. Because of this risk, Mr. Kruse’s
    continued unrestricted practice represents an immediate,
    serious danger to the public health and to patients under
    his care. Therefore, there are no less restrictive means
    than the terms outlined in this Order that will adequately
    protect the public.

(Emphasis added).

     In its conclusions of law, the Department recognized the
seriousness with which the Legislature and the Department view
this type of misconduct:

    2. Section 491.009(1)(k), Florida Statutes (2016-2017),
    subjects a clinical social worker to discipline, including
    restriction, for committing any act upon a patient or
    client which would constitute sexual battery or which
    would constitute sexual misconduct as defined pursuant
    to Section 491.0111, Florida Statutes (2016-2017).

    3. Section 491.0111, Florida Statutes (2015-2017)
    provides that sexual misconduct shall be defined by board
    rule.

    4. Rule 64B4-10.002(1), Florida Administrative Code,
    provides that it is sexual misconduct for a
    psychotherapist to engage, attempt to engage, or offer to
    engage a client in sexual behavior, or any behavior,
    whether verbal or physical, which is intended to be
    sexually arousing, including kissing; sexual intercourse,
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    either genital or anal; cunnilingus; fellatio; or the
    touching by either the psychotherapist or the client or the
    other’s breasts, genital areas, buttocks, or thighs,
    whether clothed or unclothed.

    5. Mr. Kruse violated Section 491.0111, Florida Statutes
    (2016-2017), and Rule 64B4-10.002(1), Florida
    Administrative Code, by engaging, attempting to engage,
    or offering to engage, Patient L.P. in sexual misconduct
    by:

        a. Touching Patient L.P.’s buttocks;

        b. Attempting to kiss Patient L.P.; and

        c. Telling Patient L.P. that she was attractive.

    6. Section 120.60(6), Florida Statutes (2017), authorizes
    the State Surgeon General to restrict a clinical social
    worker’s license upon a finding that the clinical social
    worker presents an immediate, serious danger to the
    public health, safety, or welfare.

(Emphasis added).

                            ANALYSIS

     Section 120.60(6) authorizes a state agency to take emergency
disciplinary action against a state licensee under the following
circumstances:

    If the agency finds that immediate serious danger to the
    public health, safety, or welfare requires emergency
    suspension, restriction, or limitation of a license, the
    agency may take such action by any procedure that is fair
    under the circumstances if:

        (a) The procedure provides at least the same
        procedural protection as is given by other
        statutes, the State Constitution, or the United
        States Constitution;


                                5
         (b) The agency takes only that action necessary
         to protect the public interest under the
         emergency procedure; and

         (c) The agency states in writing at the time of, or
         prior to, its action the specific facts and reasons
         for finding an immediate danger to the public
         health, safety, or welfare and its reasons for
         concluding that the procedure used is fair under
         the circumstances. The agency’s findings of
         immediate danger, necessity, and procedural
         fairness are judicially reviewable.

    A number of cases have discussed the application of these
standards in terms of sexual misconduct by a licensee. In Field v.
State Department of Health, 902 So. 2d 893 (Fla. 1st DCA 2005),
we held an emergency order suspending a doctor’s medical license
based on a single allegation of sexual misconduct sufficiently
demonstrated the doctor’s continued medical practice would pose
an immediate and serious danger to public health, safety, and
welfare.

   Field cited with approval the following language from the
emergency order in that case, which similar to the order here,
emphasized the vulnerability of patients during treatment:

    As exemplified by the facts of this case, physicians often
    care for vulnerable patients in settings where they can
    easily abuse these patients. Due to the potential for abuse
    that is inherent under these circumstances, doctors must
    possess good judgment and good moral character in order
    to safely practice medicine. Dr. Field’s willingness to
    engage in sexual misconduct toward his patient
    demonstrates a serious defect in Dr. Field’s judgment and
    moral character.

Id. at 896.

    We specifically recognized the necessity to provide heightened
protection for vulnerable patients from sexual misconduct. The


                                 6
need for heightened scrutiny over caregivers in incidents involving
vulnerable patients is paramount.

    Petitioner attempts to distinguish Field on two grounds: (1)
that the conduct involved in Field was more serious; and (2) Dr.
Field admitted the sexual conduct, although he claimed it was
consensual. These distinctions are unavailing.

     The Legislature specifically authorized action against a social
worker’s conduct not only for sexual battery but also for sexual
misconduct. § 491.009(1)(k), Fla. Stat. By rule, the conduct
involved in this case meets the definition of sexual misconduct.
Fla. Admin. Code R. 64B4-10.002(1).

     Further, conduct of this type is egregious, especially with a
victim who had previously been assaulted and was vulnerable. We
refuse to distinguish Field based on the level of seriousness.

     The fact that Dr. Field admitted his conduct is also not an
important distinction. In ruling on the legitimacy of an emergency
order, it is not our job to determine the credibility of witnesses but
to determine the sufficiency of the facts as alleged in the
emergency order. Sanchez v. Dep’t of Health, 225 So. 3d 964, 966
(Fla. 1st DCA 2017). When evaluating the sufficiency of an
emergency suspension order, an appellate court is limited to
examining the face of the order itself to determine if the elements
were alleged with sufficient detail. See Mendelsohn v. Dep’t of
Health, 68 So. 3d 965, 967 (Fla. 1st DCA 2011); Kaplan v. State,
Dep’t of Health, 45 So. 3d 19, 20 (Fla. 1st DCA 2010).

      Petitioner’s attempt to distinguish this case from Field must
fail, because his dispute of the allegations requires a credibility
determination. This need for a credibility determination is
particularly applicable in cases of alleged sexual misconduct,
which often involve a one-on-one encounter. Credibility
determinations must be made during a full expedited evidentiary
administrative proceeding.

   In the instant case, there are detailed facts set out in the
emergency suspension order based on the testimony of the person
making the allegations of sexual misconduct, which occurred over

                                  7
the course of several appointments. These allegations are clearly
sufficient.

     Further, the emergency order here is narrowly tailored by
restricting only petitioner’s ability to see female patients. In a
similar case, Sanchez, 225 So. 3d at 966-67, we denied a challenge
to an emergency order restricting a dental hygienist’s ability to see
female patients after allegations he committed sexual conduct
against female patients, explaining:

    Because his alleged misconduct is readily concealable in
    the course of carrying out his duties, we cannot fault the
    Department’s tailored, gender-specific restriction and
    conclusion that “[n]othing short of the immediate
    restriction of Mr. Sanchez’s license to practice as a dental
    hygienist in the State of Florida will protect the public
    from the dangers created by Mr. Sanchez’s continued
    practice of dental hygiene on female patients.”

Cf. Nath v. Dep’t of Health, 100 So. 3d 1273 (Fla. 1st DCA 2012)
(holding emergency order suspending an acupuncturist’s license
after allegations of sexual misconduct against female patients
sufficiently alleged an immediate serious danger to the public that
was likely to recur absent an emergency order, but the order could
have been more narrowly tailored by only restricting the treatment
of female patients).

     Similarly here, petitioner’s misconduct is readily concealable,
as evidenced by allegations that he forcibly grabbed and kissed the
patient while alone with her during treatment after she tried to
leave. As in Sanchez, the Department’s narrowly tailored order
restricting his ability to see female patients is necessary to protect
the public.

     We therefore DENY the petition to review non-final agency
action.

OSTERHAUS and WINSOR, JJ., concur.




                                  8
                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Cynthia A. Mikos and Jamie A. Klapholz of Johnson, Pope, Bokor,
Ruppel, & Burns, LLP, Tampa, for Petitioner.

Christine E. Lamia, Chief Appellate Counsel, and Katelyn R.
Levine, Assistant General Counsel, Florida Department of Health,
Prosecution Services Unit, Tallahassee, for Respondent.




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