John P. Atkins Legal Counsel DEPARTMENT OF LABOR AND INDUSTRY Of?ce of Legal Services 301 South Park Avenue P.O. Box 200513 Helena, MT 59620-0513 Attorney for the Department BEFORE THE ADVISORY COUNCIL OF THE LICENSED ADDICTION COUNSELOR PROGRAM DEPARTNIENT OF LABOR AND INDUSTRY STATE OF MONTANA IN THE MATTER OF THE PROPOSED Docket No. CC-04-0138-LAC DISCIPLINARY TREATMENT OF THE LICENSE OF STEVE FAIRBANK, CDC, License Number 407. NOTICE OF SUMMARY SUSPENSION AND OPPORTUNITY FOR HEARING TO: Steve Fairbank 758 Blue Slide Road Thompson Falls, MT 59873 PLEASE TAKE NOTICE THAT: The Review Panel of the Licensed Addiction Counselor Program of the State of Montana (Review Panel) has recommended to the Department of Labor and Industry (Department), and the Department has so found, that reasonable cause exist to believe that you have committed acts and/or omissions that authorize the Department to take disciplinary action against your right to hold a license as a licensed addiction counselor in the State of Montana, Notice of Summary Suspension and Opportunity for Hearing Steve Fairbank, CC-04-0138-LAC Page 1 ORIGINAL pursuant to the provisions of Montana Code Annotated (MCA), and ARM 8.11.1200). REASONS FOR ACTION The Department has considered information presented to it by the Review Panel of the Licensed Addiction Counselors? Program in making its reasonable cause ?nding. The following Fact Assertions and Conclusions summarize the allegations upon which the Department has authorized the issuance of a Notice of Summary Suspension and Opportunity for Hearing. FACT ASSERTIONS (1) That at all times relevant to this proceeding, Licensee was a licensed addiction counselor, License No. 407, licensed by the Montana Licensed Addiction Counselor Program and its predecessor the Certi?ed Chemical Dependency Program; (2) That Licensee is an of?cer, shareholder and co-director, along with Licensee?s spouse, Jill Fairbank, of Building Bridges, Inc., a Montana corporation which provides a cognitive behavioral program for youths in Thompson Falls, County of Sanders, State of Montana; (3) That on or about August 4, 2000, Licensee and a female minor (KJM), age seventeen years, who was a resident in Licensee?s Building Bridges, Inc., program, had gone to the local to exercise. After Licensee and KJM had ?nished exercising, they returned to the Building Bridges? facility and showered. Licensee showered ?rst while checked a mousetrap at the request of Licensee. KJM then showered, however, as KJM was drying herself off, she noticed Licensee?s shaving kit in the dressing room and what appeared to be a Notice of Summary Suspension and Opportunity for Hearing Steve Fairbank, CC-04-0138-LAC Page 2 camera lens aimed at the dressing room partially concealed in Licensee?s shaving kit. KIM then left the dressing room; went to her room to change clothes; and then returned to the dressing room to examine Licensee?s shaving kit and the camera she had observed. When KJM returned to the dressing room, the shaving kit and camera were gone; II (4) That upon not being able to locate Licensee?s shaving kit, KJM told Licensee that she was ready for work. Licensee inquired of KJM about a bikini she had; requested KJM to put it on; and further instructed KJM to pose for some pictures that he (Licensee) wanted to take with his camera; (5) That KJM put on her b?cini and posed in several sexually provocative positions while Licensee took pictures of KIM. Licensee then instructed KIM to put on a short skirt and again took several sexually provocative photos of KIM. This procedure was repeated again with KJM now dressed in a pair of short shorts. During these photo sessions, Licensee ?adjusted? bikini top and, in the process, touched or rubbed breasts. During this time, Licensee also grabbed, stroked or patted buttocks. Licensee paid KJM the sum of Twenty and No/100 Dollars ($20.00) for posing for him and advised KJM that she would make a very successful topless model; (6) That KJM reported the above-recited events and Licensee was subsequently charged in the Justice Court of Sanders County, Montana, with two counts of Sexual Contact Without Consent, in violation of Section 45?5-502, MCA, both misdemeanors. Licensee entered into a ?Waiver and Agreement to Defer Prosecution?, dated December 27, 2000, with the Sanders County Attorney wherein he admitted to the offenses charged on the date alleged; (7) That in the course of investigating the criminal complaint ?led by KJM against Licensee, members of the Sanders County Sheriff?s Department obtained and executed a search warrant at Licensee?s residence on August 6, 2000, of the Building Bridges facilities wherein Notice of Summary Suspension and Opportunity for Hearing Steve Fairbank, CC-04-0138-LAC Page 3 they recovered several adult magazines; separate pages from adult publications of semi?nude models; and the Twenty and NOHOO Dollars ($20.00) paid by Licensee to for posing. No photographs were recovered. Licensee told the Sheriffs deputies that the photographs had turned out poorly and that he (Licensee) had thrown them away; (8) That on March 10, 2003, the Review Panel voted unanimously to require Licensee: . . to participate in a evaluation by a Department approved professional to determine the level of risk he poses to the public with the report submitted to the Department . . . within 90 days.? (9) That although Licensee did obtain a evaluation, Licensee has refused to authorize his ?approved professional? to release a copy of that evaluation to the Review Panel (10) That the Review Panel and the Department are without any means to assess or evaluate the level of risk that licensee poses to female residents of his Building Bridges program or other members of the public without being able to review the evaluation report of Licensee?s ?approved professional?; and (11) That the level of risk that Licensee presents to residents of his Building Bridges program, or other members of the public, is unknown at this time. However, what is known is that Licensee, who was twenty-eight (28) years older than KJM on August 4, 2000, admitted that he took inappropriate sexual liberties, without consent, of a female resident of his cognitive behavioral program while in a position of authority and in?uence and in his professional capacity; paid KJM for posing in sexually provocative positions; and pornographic materials were recovered from Licensee?s residence. Notice of Summary Suspension and Opportunity for Hearing Steve Fairbank, Page 4 CONCLUSIONS From the foregoing Fact Assertions, the Board concludes: A. That the Licensed Addiction Counselor Program has jurisdiction over the Licensee and the subject matter herein pursuant to Sections 37?1?403, 37-35-103 and 37-35- 201, B. That the admitted sexual conduct of Licensee with KJM on August 4, 2000; together with the disparity in age between Licensee and the pornographic magazines recovered from Licensee?s residence; and the refusal of Licensee to release the evaluation report of his ?approved professional? to the Review Panel constitutes grounds to conclude that the public health, safety and welfare iinperatively requires emergency action in regard to Licensee?s license as a licensed addiction counselor in the form of summary suspension of Licensee?s license pending proceedings for revocation or other action as deemed appropriate. C. That the acts and conduct of Licensee on August 4, 2000, with KJM constitute a violation of Section MCA, and ARM 8.11.120(2) and subject Licensee to summary suspension of his license pursuant to Section 2?4?6310), MCA, and the sanctions provided for in Section 37-1-312, Montana Code Annotated, pursuant to the authority granted by Section SUMMARY SUSPENSION ORDER Pursuant to Section 2?4?6316), Montana Code Annotated, the Department of Labor and Industry ?nds, from the facts and matters recited above, that the public health, safety and welfare imperatively requires the summary suspension of Licensee?s license as a licensed addiction counselor. Therefore: Notice of Summary Suspension and Opportunity for Hearing Steve Fairbank, Page 5 HEREBY ORDERED that Licensee?s license as a licensed addiction counselor in the State of Montana, License No. 407, is immediately and summarily suspended for an inde?nite period pending further proceedings in this matter. Licensee is instructed, pursuant to Section MCA, to surrender his License No. 407 to the Health Care Licensing Bureau, Department of Labor and Industry within twenty?four (24) hours of receipt of this Notice by mailing it or personally delivering it to: Lisa Addington, Bureau Chief Health Care Licensing Bureau 301 South Park PO. Box 200513 Helena, MT 59620-0513 UNIFORM PROFESSIONAL LICENSING AND REGULATION PROCEDURES You are advised that the law provides: 37-1-309. Notice -- request for hearing. (1) If a reasonable cause determination is made pursuant to 37-1-30? that a violation of this part has occurred, a notice must be prepared by department legal staff and served on the alleged violator. The notice may be served by certi?ed mail to the current address on ?le with the (program administrator) or by other means authorized by the Montana Rules of Civil Procedure. The notice may not allege a violation of a particular statute, rule, or standard unless the (program?s review panel), if one has been established, has made a written determination that there are reasonable grounds to believe that the particular statute, rule, or standard has been violated. (2) A licensee or license applicant shall give the (program administrator) the licensee's or applicant's current address and any change of address within 30 days of the change. (3) The notice must state that the licensee or license applicant may request a hearing to contest the charge or charges. A request for a hearing must be in writing and received in the of?ces of the department within 20 days after the licensee's receipt of the notice. Failure to request a hearing constitutes a default on the charge or charges, and the (Department) may enter a decision on the basis of the facts available to it. 37-1-312. Sanctions -- stay -- costs -- stipulations. (1) Upon a decision that a licensee or license applicant has violated this part or is unable to practice with reasonable skill and safety due to a physical or mental condition or upon stipulation of the parties as provided in subsection (3), the (Department) may issue an order providing for one or any combination of the following sanctions: revocation of the license; suspension of the license for a ?xed or inde?nite term Notice of Summary Suspension and Opportunity for Hearing Steve Fairbank, Page 6 restriction or limitation of the practice; satisfactory completion of a speci?c program of remedial education or treatment; monitoring of the practice by a supervisor approved by the disciplining authority; censure or reprimand, either public or private; compliance with conditions of probation for a designated period of time; payment of a ?ne not to exceed $1,000 for each violation. Fines must be deposited in the state general fund. denial of a license application; refund of costs and fees billed to and collected from a consumer. (2) A sanction may be totally or partly stayed by the (Department). To determine which sanctions are appropriate, the (Department) shall ?rst consider the sanctions that are necessary to protect or compensate the public. Only after the determination has been made may the (Department) consider and include in the order any requirements designed to rehabilitate the licensee or license applicant. (3) The licensee or license applicant may enter into a stipulated agreement resolving potential or pending charges that includes one or more of the sanctions in this section. The stipulation is an informal disposition for the purposes of 2-4-1503. (4) A licensee shall surrender a suspended or revoked license to the (Department) within 24 hours after receiving noti?cation of the suspension or revocation by mailing it or delivering it personally to the (Department). STATEMENT OF RIGHTS You are entitled to a hearing as provided for by the Montana Administrative Procedure Act, 2-4-601, MCA, and following, including 2-4-631, MCA, and by 37-1- 403; and 37?1?404, MCA. You have a right to be represented by an attorney at such hearing and during related proceedings. If you want to have a hearing and to resist the preposed action under the jurisdiction of the Department, you must so advise Lisa Addington, Bureau Chief, Health Care Licensing Bureau, Department of Labor and Industry, 301 South Park, P.0. Box 200513, Helena, Montana 59620-0513, in writing. Your request must be received in the of?ces of the Department within twenty (20) days after your receipt of this notice. Notice of Summary Suspension and Opportunity for Hearing Steve Fairbank, Page 7 POSSIBILITY OF DEFAULT Failure to give notice or to advise of your request for a hearing within the time speci?ed will result in the entry of a default order imposing any sanction or sanctions authorized by law without additional prior notice to you. I .. DATED this 4/ day of April, 2004. Legal Counsel Department of Labor and Industry CERTIFICATE OF SERVICE I hereby certify that on the 11?" day of April, 2004, I served a true and accurate copy of the foregoing, by certi?ed US. mail, certi?ed number 761:? :19 35C: (3535/ .5393 45/ C7 postage prepaid, upon the Licensee, addressed as follows: Steve Fairbank 758 Blue Slide Road Thompson Falls, MT 59873 Notice of Proposed Board Action and Opportunity for Hearing David Fenton, BEFORE THE ADVISORY COUNCIL OF THE LICENSED ADDICTION COUNSELOR PROGRAM DEPARTMENT OF LABOR AND INDUSTRY STATE OF MONTANA IN THE MATTER OF THE PROPOSED Docket No. CC-04-0138-LAC DISCIPLINARY TREATMENT OF THE Hearings Bureau Case No. 2455-2004 LICENSE OF STEVE FAIRBANK, CDC, License No. 407. STIPULATION The Professionai and Occupational Licensing Division of the Department of Labor md Industry of the State of Montana (Department), by and through its legal counsel, and Steve Fairbank (Licensee), a licensed addiction counselor, represented by Peter A. Leander, attorney at law, Bigfork, Montana, hereby stipulate and agree as follows: STIPULATION . 1. That licensee, Steve Fairbank, was previously licensed to act as a licensed addiction counselor in the State of Montana. Licensee's license number was 407. Licensee?s license was summarily suspended effective April 12, 2004, pursuant to Notice of Summary Suspension and Opportunity for Hearing dated April 6, 2004. Licensee?s most recent application to renew has license was denied due to the summary suspension of his license. Licensee is not currently licensed at this time. 2. Information has been brought and ?led charging Licensee with conduct constituting grounds for disciplinary action. 3. The Licensed Addiction Counselor Program has a statutory obligation to protect the public health, welfare and safety under Mont. Code Ann. ?37-35-201. 4. Licensee admits the jurisdiction of the Advisory Council of the Licensed Addiction Counselor Program over Licensee and over the subject matter of the complaint even though Licensee 15 not currently licensed at this time. Section 37- l- 141, C. A., and IGilpin Board "0 of Nursing, et al., 254 Mont 308, 837 P. 2d 1342 (1992) Licensee desires to avoid Stipulation and Final Order Page 1 unnecessary expenditure of time and other valuable resources in resolving the issues in this action. Therefore, Licensee speci?cally waives a contested case hearing and all rights to appeal under the Montana Administrative Procedure Act, and elects to resolve this matter on the terms and conditions set forth herein. 5. Licensee acknowledges that Licensee has read and understands each term of this Stipulation and the Notice of Summary Suspension and Opportunity for Hearing issued in this matter. Licensee acknowledges that Licensee enters into this Stipulation voluntarily and without reservation. Licensee acknowledges that no promises, other than those contained herein, and no threats have been made by the Depa ent or by any member, of?cer, agent or representative of the Department to induce Licensee to enter into this Stipulation. 6. Based upon the complaint and its investigation of the complaint, the Department contends as set forth in its Fact Assertions and Conclusions sections of the Notice of Summary Suspension and Opportunity for Hearing issued in this matter. The Department speci?cally contends that Licensee?s conduct, as alleged in the Notice of Summary Suspension and Opportunity for Hearing constitutes grounds for disciplinary action against Licensee's license. The Department acknowledges that it is in receipt of a summary Evaluation performed by Michael J. Scolatti, of Missoula, Montana, dated June 29, 2004, which determined that Licensee was ?a low risk to sexually reoffend.? 7. The Department and the Licensee agree that this Stipulation shall be a ?nal compromise and settlement of the grounds for Licensee?s summary suspension and non- renewal of Licensee?s license as a licensed addiction counselor arising out of Licensee?s conduct alleged in the Notice of Summary Suspension and Opportunity for Hearing in the above-captioned matter. 8. The Department and the Licensee agree that the Notice of Summary Suspension and Opportunity for Hearing, this Stipulation, and the subsequent Final Order are all public documents, pursuant to Mont. Code Ann. 2?4-623. 9. The Department and Licensee stipulate and agree that: (A) That Licensee shall be permitted to apply for reinstatementfrenewal of his licensed addiction counselor license immediately upon entry of a Final Order in this matter Stipulation and Final Order Page 2 without incurring the late renewal fee provided for in ARM 8.11.101, if otherwise quali?ed; (B) That Licensee shall be placed on probation for a period of Two (2) years from the date of the Final Order in this matter; and (C) That Licensee?s practice as a licensed addiction counselor shall be limited to MALES ONLY. This agreement is subject to ?nal approval by the Adviser}; Council for the Licensed Addiction Counselor Program and the Department of Labor and ndustry. -- . . . .. oh??P. Atkins DateL7 Legal Counsel Department of Labor and Indusz teve an a Date Llcensee 4 v? 5 Peter A. Leander Date Attorney for Licensee Stipulation and Final Order Page 3 00 BEFORE THE ADVISORY COUNCIL OF THE LICENSED ADDICTION COUNSELORS PROGRAM STATE OF MONTANA IN THE MATTER OF THE PROPOSED DISCIPLINARY TREATMENT OF THE Docket No. CC-04-0138-LAC LICENSE 0F STEVE FAIRBANK, Hearings Bureau Case No. 2455-2004 License No. 407. FINAL ORDER Based upon the foregoing Stipulation of the parties to this action, and other good cause appearing therefore, IT IS HEREBY ORDERED that the Stipulation between the parties-is incorporated herein by reference and the disciplinary action contained therein shall be binding on Licensee and constitute the Final Order of the Licensed Addiction Counselors Program. DATED this 40 day of ,2004. DEPARTMENT OF LABOR AND INDUSTRY 11, Division Administrator 5 Standards Division Department of Labor and Industry Stipulation and Final Order . 4 CERTIFICATE OF SERVICE I hereby certify that on the ?0on day of (Meat: 2004, I served a true and accurate c0py of the foregoing Final Order, by US. mail, postage prepaid, upon Licensee and Licensee?s counsel of record, addressed as follows: Steve Fairbank Peter A. Leander 758 Blue Slide Road Attorne at Law Thompson Falls, MT 59873 Osborn andng 443 Osborn Avenue, Suite 108 Bigfork, MT 59911 310% gringo?? mm Stipulation and Final Order Page 5