Department of Professional Regulation v. Wise, 90-728

• Decision Date: 14 February 1991
• Docket Number: No. 90-728,90-728
• Citation: 575 So.2d 713,16 Fla. L. Weekly 483
• Parties: 16 Fla. L. Weekly 483 DEPARTMENT OF PROFESSIONAL REGULATION, Appellant/Cross Appellee, v. Melvin S. WISE, M.D., Appellee/Cross Appellant.
• Court: Florida District Court of Appeals

Page 713

575 So.2d 713

16 Fla. L. Weekly 483

DEPARTMENT OF PROFESSIONAL REGULATION, Appellant/Cross Appellee, v. Melvin S. WISE, M.D., Appellee/Cross Appellant.

No. 90-728.

District Court of Appeal of Florida,

First District.

Feb. 14, 1991.

Rehearing Denied March 13, 1991.

Lisa S. Nelson of the Department of Professional Regulation, Tallahassee, for appellant/cross appellee.

Mark P. Lang, of Mark P. Lang, P.A., Orlando, for appellee/cross appellant.

Rick Kolodinsky of Kolodinsky & Berg, New Smyrna Beach, Amy Berman Jackson and Nancy A. Voisin of Venable, Baetjer, Howard & Civiletti, and Donna Lenhoff of

the Women's Legal Defense Fund, Washington, D.C., for amicus curiae Women's Legal Defense Fund.

Paul Watson Lambert, and Stephen Marc Slepin of Slepin & Schwartz, Tallahassee, for amicus curiae Professional License Defense Lawyers Assn.

ALLEN, Judge.

The Department of Professional Regulation (the department) appeals from a final order of the Board of Medicine (the board) dismissing disciplinary proceedings against the appellee, Dr. Melvin S. Wise. In dismissing the action against the appellee, the board relied upon findings of fact set forth in a recommended order by a hearing officer of the Division of Administrative Hearings (the division). Because the recommended and final orders were based, at least in part, upon findings of fact reached after consideration of irrelevant evidence, we set aside the final order and remand for further proceedings.

The department filed an administrative complaint against the appellee, a psychiatrist, alleging his violation of various provisions of Chapter 458, Florida Statutes, by influencing several female patients to engage in sexual relations with him. The appellee took the position throughout the proceedings that none of the alleged encounters ever occurred.

A hearing was held pursuant to Section 120.57(1), Florida Statutes, before a hearing officer of the division. Five of the appellee's former patients testified that the appellee had used his role as their psychiatrist to influence them to engage in sexual relations with him. Over the department's objections, the hearing officer allowed the appellee to present evidence of each of these women's sexual histories, even to the extent of allowing testimony as to the names and numbers of their sexual partners, their pregnancies outside marriage, their aborted pregnancies, and their experiences as victims of incest and sexual abuse as children. Following the hearing, the hearing officer issued a recommended order in which he found, with almost no explanation as to his reasoning, that the testimony of the former patients was not clearly convincing. Consequently, he recommended that no disciplinary action be taken.

The department filed exceptions to the recommended order with the board and moved the board to remand the case for a new hearing before a new hearing officer. In its motion, the department argued that the hearing officer had reversibly erred in allowing the testimony regarding the former patients' sexual histories. The board granted all the department's exceptions and granted its motion.

On remand, the division refused to conduct a new hearing or to assign a new hearing officer and stated that the hearing officer had properly considered the evidence regarding the sexual histories of the appellee's former patients, reasoning that such evidence was relevant to the question of their credibility. In the order on remand, which was written by the same hearing officer who had conducted the earlier hearing, more elaboration was provided as to the hearing officer's reasons for doubting the credibility of the former patients. A review of those reasons reveals that the former patients' sexual histories played a part in leading the hearing officer to the conclusion that the testimony of the women was not credible.

Faced with the refusal of the division to conduct a new hearing, the board again expressed its view that the findings of fact had been based, at least in part, upon inadmissible evidence. But the board decided that if no new hearing was to be conducted, it was required to accept the hearing officer's recommended order and dismiss the complaint against the appellee. Accordingly, a final order to that effect was entered by the board. Pursuant to its authority under Section 455.225(7), Florida Statutes, the department has appealed that order to this court.

The department's first point on appeal is its contention that the testimony regarding the former patients' sexual histories was inadmissible. The first argument in support of this point is founded upon Section 794.022, Florida Statutes, which is more commonly known as the "rape shield statute." The department argues that the statute was applicable to the hearing and therefore prohibited the admission of evidence relating to the former patients' sexual relations with anyone other than the appellee. We disagree. Section 794.022 is expressly limited by its own language to "prosecution[s] under s. 794.011." Since the hearing before the hearing officer was an administrative hearing rather than a criminal prosecution for sexual battery, the rape shield statute was simply not applicable.

Next, the department argues that even if the rape shield statute did not apply, the testimony was not relevant to the question of the credibility of the former patients or to any other issue before the hearing officer. We find this argument to have merit.

As a general proposition, evidence of a witness's sexual relations with a person other than an accused, whether in a civil, criminal, or administrative context, is simply not relevant to the question of the witness's credibility. There are exceptions to this proposition, not the least of which involves situations where proof of such a relationship is necessary to establish a witness's bias against the accused or motive to testify falsely. However, evidence of a witness's relationship with a person other than the accused, standing alone, has no probative value in the credibility determination. See Marr v. State, 494 So.2d 1139 (Fla.1986); but cf. Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988).

In the present case, limited portions of the testimony regarding the former patients' sexual histories may have been marginally related to one or another of the appellee's theories as to some of the women's motives for testifying falsely against him. Nevertheless, the majority of the testimony served to do nothing more than reveal the circumstances under which the women had been involved in completely unrelated sexual relationships. Accordingly, a major portion of the testimony was wholly irrelevant and should not have been admitted by the hearing officer.

We reject the appellee's contention that even if the testimony was not relevant, it was nonetheless admissible under the provisions of Section 120.58(1)(a), Florida Statutes. That section provides a relaxed standard for the admissibility of evidence in administrative proceedings, but it specifically provides a threshold requirement that "[i]rrelevant ... evidence shall be excluded...." Here, the evidence complained of was clearly irrelevant and failed to meet this threshold requirement.

The appellee also contends that the department waived any objection to the admissibility of the testimony by stipulating to the admission of the medical records prepared by appellee relative to his treatment of the former patients. The appellee asserts that the information revealed by the testimony to which the department objected was all contained in the medical records. We also reject this argument. First, the department stipulated to admission of the medical records merely for the purpose of proving that the appellee had treated the women. Agreeing to the admissibility of the medical records for that purpose obviously did not constitute a waiver by the department of its later right to question the relevancy of testimony relating to every point touched upon by the appellee in the medical records. Further, our review of the medical records reveals that only a small portion of the information brought out by the objectionable testimony was actually set forth in the medical records.

In reaching our conclusion that error occurred by reason of the hearing officer's reception of the former patients' sexual histories, we are aware that not every error in the administrative fact-finding process will require the setting aside of agency action. Where unfairness has not otherwise infected the fact-finding process, findings which are founded solely upon evidence which is both competent and substantial will not be disturbed on appeal. This accords with the harmless error standard set out in Section 120.68(8), Florida Statutes, which provides that the appellate court shall remand for further agency action "if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure." This rule is particularly applicable in those administrative proceedings wherein findings of fact are constructed on conflicting evidence. Thus, if the evidence before the fact finder is conflicting but is nonetheless competent and substantial, a reviewing court is precluded from substituting its judgment for that of the agency as to disputed issues of fact. Gershanik v. Dep't of Prof. Reg., Bd. of Medical Examiners, 458 So.2d 302 (Fla. 3d DCA 1984), review denied, 462 So.2d 1106 (Fla.1985); Kinlaw v. Unemployment Appeals Comm'n, 417 So.2d 802 (Fla. 5th DCA 1982); Boyette v. State, Prof. Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977).

Although it is true that Dr. Wise's testimony conflicted with that of the complaining witnesses regarding the alleged sexual relations, and that the hearing officer may otherwise have had sufficient evidence before him to justify a finding for Dr. Wise,...