STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

MASSAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2613

)

AARON BENJAMIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by William R. Cave, the assigned Hearing Officer from the Division of Administrative Hearings, on December 6, 1991 in Tampa, Florida.

APPEARANCES

For Petitioner: Lois B. Lepp, Esquire

Department of Profession Regulation 1940 N. Monroe Street, Suite 60

Tallahassee, FL 32399-0792

For Respondent: Aaron Benjamin, pro se

8319 Cross Timbers Drive East Jacksonville, FL 32244

STATEMENT OF THE ISSUE

Whether Respondent's license to practice massage in the state of Florida should be disciplined under the facts and circumstances of this case.

PRELIMINARY STATEMENT

By an Administrative Complaint dated March 5, 1991, and filed with the Division of Administrative Hearings on April 26, 1991, the Respondent is charged with violating Section 480.046(1)(n), Florida Statutes, by practicing massage at a site, location, or place which was not duly licensed as a massage establishment. As grounds therefor, it is alleged that from on or about September 5, 1987 until on or about September 11, 1989, the Respondent practiced massage therapy at Frank Calta's Health Connection which was not a duly licensed massage establishment in the state of Florida. The Respondent filed an Election of Rights denying the allegation and requesting a formal administrative hearing. By letter dated April 13, 1991 the Petitioner transferred this matter to the Division of Administrative Hearings, and after several continuances the matter was scheduled and heard on December 6, 1991. At the beginning of the hearing, the Petitioner made a ore tenus motion to amend the Administrative Complaint by deleting the language "revocation or suspension of the Respondent's license, restriction of the Respondent's practice" from the wherefore clause. The motion

was granted and the Administrative Complaint as amended is now the charging document in this cause.

At the hearing, the Petitioner presented the testimony of Frank Calta, Suzanne Lee and William Herbert. Petitioner's exhibit 1 through 7 were received as evidence.

Respondent testified in his own behalf and presented the testimony of Diane Fuchs. Respondent's exhibit 3 was received as evidence.

Joint Exhibit 1 and 2 were received as evidence. Chapter 455 and 480, Florida Statutes and Chapters 21-30, Florida Administrative Code were officially recognized.

A transcript of this proceeding was filed within the Division of Administrative Hearings on January 13, 1992. The parties timely submitted their proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Petitioner is the state agency charged with regulating the practice of massage in the state of Florida.

   
   

2. At all times material to this proceeding, Respondent was a licensed massage therapist in the state of Florida, holding license number MA 0007149.

   
   

3. At all times material to this proceeding, Frank Calta's Health Connection (Health Connection) was not licensed as a massage establishment in the state of Florida.

   
   

4. At all times material to this proceeding, Respondent did hold a license for a massage establishment in the state of Florida.

   
   

5. In October 1989, the Respondent filed a licensure application with Department of Professional Regulation, Board of Medicine, Dietetics and Nutrition Practice Council (Council) for licensure as a Nutritional Counselor. In answering a request for all work experience as a Nutritional Counselor in the application, Respondent listed the Health Connection as an employer from "11/87 to present" (October 1989) and as to the position held, listed "massage therapist". Respondent's answers to questions in the application were under oath wherein he declared under penalty of perjury that his statements were true and correct.

   
   

6. As part of this application to the Council, Respondent submitted a notarized statement by Frank Calta of the Health Connection indicating that Respondent had worked as a massage therapist at the Health Connection from "September 5, 1987 to the present" (September 11, 1989).

   
   

7. The testimony of both Respondent and Frank Calta at the hearing established that Respondent was not employed by the Health Connection as such in that he was not paid a salary by the Health Connection or that he worked regular hours for the Health Connection. However, this same testimony

   established that Respondent did perform massages for Frank Calta and members of the Health Connection in between sets of exercises and at the end of the exercises. These massages were conducted at either the Health Connection located at the 4626 Busch Boulevard, Tampa, Florida address or the Florida Avenue Tampa, Florida address during the period from September 5, 1987 through September 11, 1989. The Respondent was compensated for these massages by the individual members or by Frank Calta through the use of the Health Connection.

   Other than the individual members of the Health Connection, the Respondent did not solicit business from the "general public" as such.

   
   

8. It was Respondent's contention that these massages were performed at sports events. However, there was no evidence that the individual members or Frank Calta were involved in any type of sport competition at the time of the massages by the Respondent, but only exercising to keep their bodies in shape.

   
   

9. There was sufficient competent substantial evidence to establish facts to show that Respondent was practicing "massage" as that term is defined in Section 480.033(3), Florida Statutes, in an unlicensed "establishment" as that term is defined in Section 480.083(7), Florida Statutes, during the period from September 5, 1987 through September 11, 1989.

   
   

10. There was no evidence presented to show that Respondent's license as a massage therapist had ever been disciplined or that any disciplinary action, other than the instant case, had been taken against the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

12. Section 480.046(2), Florida Statutes, empowers the Board of Massage (Board) to suspend, revoke or otherwise discipline the license of a massage therapist upon finding the massage therapist guilty of violating any one of the enumerated acts set out in Section 480.046(1)(a) through (n), Florida Statutes. In the instant case, Respondent is charged with violating Section 480.046(1)(n), Florida Statutes.

    
    

13. Section 480.046(2), Florida Statutes provides as follows:

    
    

    (2) When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

    1. Refusal to license an applicant.

    2. Revocation or suspension of a license. ( Issuance of a reprimand or censure.

    ( Imposition of an administrative fine not to exceed

    $1,000 for each count or separate offense.

    
    

14. Section 480.046(1)(n), Florida Statutes, provides as follows:

    
    

    1. The following acts shall constitute grounds for which disciplinary actions specified in subsection (2) may be taken against a massage therapist or massage establishment licensed under the act.

       (n) Practicing massage at a site, location or place

       which is not duly licensed as a massage establishment except that a massage therapist, as provided by rules adopted by the board, may provide massage services excluding colonic irrigation, at the residence of a client, at the office of the client, at a sports event, at a convention, or at a trade show. (e.s.)

       
       

15. Rule 212-30.001(m), Florida Administrative Code, provides in pertinent part as follows:

    
    

    (m) . . . . However, prior to offering massage services at a sports event, convention or trade show, the massage therapist must obtain the written approval of the property manager of the site at which the sports event, convention or trade show is held. (e.s.)

    
    

    Respondent's argument that the activity going on in the Health Connection for which he was providing massage services was a sports event, and therefore, the establishment was not required to be licensed in order for the Respondent to practice massage is without merit and is rejected.

    
    

16. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 392 (Fla. 1987). However, in the instant case where the discipline would not involve the loss of licensure, the licensee's guilt need be established by only a preponderance of the evidence. Allen v. School Board of Dade County, 571 So.2d 568 (3 DCA Fla. 1990); Department of Professional Regulation, Board of Nursing v. Sylvia Echlov, DOAH Case No. 91-1557 (Recommended Order issued January 10, 1992). The Petitioner has sustained its burden in this case under either standard of proof.

RECOMMENDATION

Based upon the foregoing Findings of Fact, Conclusions of Law, and the penalty guidelines set out in Rule 21L-30.002, Florida Administrative Code, it is, accordingly,

RECOMMENDED:

That the Board enter a Final Order finding Respondent guilty of violating Section 480.036(1)(n), Florida Statutes, and for that violation issue the Respondent a letter of reprimand and assess an administrative fine of $250.00.

DONE and ENTERED this 3rd day of February, 1992, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-2613

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case.

Rulings on Proposed Finding of Fact Submitted by the Petitioner

1. - 4. Adopted in substance as modified in the Recommended Order in Findings of Fact 1, 2, 3, and 4, respectively.

5. - 7. Adopted in substance as modified in the Recommended Order in Finding of Fact 5.

8. - 9. Adopted in substance as modified in the Recommended Order in Finding of Fact 6.

1. Neither relevant nor material to this proceeding other than as to Respondent's credibility as a witness.

2. - 13. Adopted in substance as modified in the Recommended Order in Finding of Fact 7 and 9.

14. Rejected as not supported by competent substantial evidence in the record but in any event, is neither material nor relevant to this proceeding other than as to the extent of the disciplinary action taken.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Respondent has submitted what is titled Proposed Finding of Facts. However, it more of a conclusion of law or legal argument than finding of fact. As to the facts set out in paragraph 5 (unnumbered) see Finding of Fact 7.

COPIES FURNISHED:

Lois B. Lepp, Esquire Department of Professional

Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Aaron Benjamin

8319 Cross Timbers Drive East Jacksonville, FL 32244

Anna Polk, Executive Director Board of Massage

1940 N. Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 N. Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-002613

Orders for Case No: 91-002613