STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF MASSAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6559

) RITA BRIGUGULIO, d/b/a MASSAGE BY OLGA, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on January 24, 1992, in Daytona Beach, Florida.

APPEARANCES

FOR PETITIONER: Lois B. Lepp, Esq.

Department of Professional Regulation

Northwood Centre, Suite 60 1940 N. Monroe Street Tallahassee, FL 32399-0792

FOR RESPONDENT: Rita Brigugulio, pro se 643 Tanglewood

Daytona Beach, FL 32114 STATEMENT OF THE ISSUES

An Administrative Complaint was filed in this matter on August 29, 1991 alleging that the Respondent had violated Section 480.046(1)(l), Florida Statutes, for refusing to permit the Petitioner to inspect the business premises of the licensee during regular business hours. The Respondent requested a formal hearing and this matter was sent to the Division of Administrative Hearings.

PRELIMINARY STATEMENT

This matter was set for formal hearing on January 24, 1992. The Petitioner presented the testimony of Linda Mantovani, a Department inspector, and introduced four (4) exhibits. Petitioner's Exhibit 1 is a Certification of Licensure for Massage by Olga, a massage establishment. Petitioner's Exhibit 2 is a Certificate of Licensure indicating that the Respondent is licensed as a massage therapist. Petitioner's Exhibit 3 is the Petitioner's investigative report, without exhibits. Petitioner's Exhibit 4 is the Petitioner's supplemental report containing the photographs of the front door of Massage by Olga.

The Respondent made an unsworn statement but did not offer any evidence in this matter.

References to the transcript will be made as "T- ", followed by the page number. References to the exhibits will be made as "P's Exh. "; for the Petitioner's exhibits.

The Petitioner filed proposed findings of fact which were read and considered. The Appendix attached hereto and incorporated by reference herein states which findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with regulating the practice of massage (Chapters 20.30, 455, and 480, Florida Statutes).

   
   

2. The Respondent is a licensed massage therapist, holding license number MA 0004771 (P's Exh. 2).

   
   

3. The Respondent holds a massage establishment license for Massage by Olga, license number MM001233 (P's Exh. 1). Massage by Olga is located at 643 Tanglewood, Daytona Beach, Florida 32114. No other businesses are located at that address (T-31).

   
   

4. The Petitioner is charged with inspecting the establishment premises. Section 480.043(9), Florida Statutes, and Rule 21L-26.005, Florida Administrative Code.

   
   

5. It is the usual and common practice of inspectors to make unannounced inspections (T-10-11).

   
   

6. To make announced inspections would contravene the reason for the inspection, giving licensees time to clean up their licensed premises (T-11, 28).

   
   

7. The Petitioner's inspector, Linda Mantovani, who works out of Jacksonville, Florida, attempted to make an inspection of the establishment, Massage by Olga, on January 30, 1991 (T-13). She knocked on the front door and waited seven (7) minutes. No one came to the door.

   
   

8. Ms. Mantovani observed two cars in the driveway of the establishment (T-14).

   
   

9. Ms. Mantovani heard noise coming from inside the establishment (T-14-

   15).

   
   

10. Ms. Mantovani went around to the side entrances and windows, and again

    knocked on the front door (T-15-16).

    
    

11. Ms. Mantovani's knocks were unanswered (T-15).

    
    

12. Ms. Mantovani waited outside the establishment for another 15 to 20 minutes to see if anyone left. She observed no one leaving or entering the establishment (T-16).

13. Ms. Mantovani observed a sign on the front door of the establishment which said:

    
    

    1. Appointments & Information by telephone-only

    2. No appointments, No knock!!!!

    3. Do not ring bell unless on time (+ or - 5 min.)

    4. Phone number....lost it, find it!

    5. Inspectors see rule #2. No exceptions (T-14, 23-24; P's Exh. 4).

       
       

14. Ms. Mantovani formed the impression that people were inside the establishment (T-15, 18)

    
    

15. The Respondent told Ms. Mantovani that although she parked her car at the licensed premises, she frequently walked to lunch in the neighborhood.

    
    

16. Ms. Mantovani contacted the Respondent by telephone without difficulty. The Respondent told Ms. Mantovani that she did not live at the licensed premises; that she was there only for appointments; and she would make herself available for Ms. Mantovani for inspection purposes. Ms. Mantovani advised the Respondent that the Petitioner made unscheduled inspections. The Respondent told Ms. Mantovani that she could not promise that she would be at the licensed premises when Ms. Mantovani was in Daytona. The Respondent also stated that it was her practice not to answer the door, except to receive scheduled patrons.

    
    

17. Ms. Mantovani refused to schedule an inspection, or to call and ascertain that the Respondent was available and inspect at that moment.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding, and this Recommended Order is entered pursuant to Section 120.57(1), Florida Statutes.

    
    

19. The Petitioner has the burden of proving its case by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

20. The Respondent was charged with violating Section 480.046(1)(l), Florida Statutes, which provides:

    
    

    (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 this act.

    *****

    (l) Refusing to permit the department to inspect the business premises of the licensee during regular business hours. (emphasis supplied)

    
    

21. Neither the statute nor rules defines "regular business hours" as used above. Black's Law Dictionary 5th Edition 1979 defines "business hours" as:

    
    

    Those hours during which persons in the community generally keep their places open for the transaction of business.

22. The attempted inspection by Ms. Mantovani took place during regular business hours and failed. Ms. Mantovani indicated that she had no difficulty in telephoning the Respondent. When contacted by Ms. Mantovani, the Respondent indicated that she did not maintain regular business hours. There is no statute or rule requiring a licensee of the Massage Board to maintain regular business hours.

    
    

23. Although unannounced inspections are a good policy and legally permissible, for the inspector from Jacksonville to inspect a licensee without regular business hours in Daytona requires some coordination. The testimony reveals that Ms. Mantovani had no difficulty contacting the Respondent by telephone. Ms. Mantovani, having established contact with the Respondent, could have requested an immediate inspection time.

    
    

24. Clearly, the Respondent would have had limited opportunity to correct deficiencies with the inspector just down the block. Had the Respondent dodged such demands for immediate inspection on several occasions, the Board would have established a pattern of avoiding inspection. However, the record in this cause indicates that inspectors were at the licensed premises only on three occasions, and on two of those occasions, they were there to photograph the sign at the front door of the premises.

    
    

25. The testimony of Ms. Mantovani indicates only that she formed an impression or felt that somebody was inside the licensed premises on her inspection visit. Such an impression falls short of the standard required to prove a violation of the statute. In the absence of seeing people enter or leave the licensed premises, the Petitioner has not demonstrated that the Respondent was present at the time Ms. Mantovani sought to inspect the licensed premises. In the absence of establishing that the Respondent was present, the Petitioner has failed to show that she has refused to be inspected. The sign posted by the Respondent indicated that inspectors should call for an appointment. However, Ms. Mantovani's testimony establishes that the Respondent was generally cooperative in their telephone conversations, except for pointing out that she could not promise that she would be there without an appointment.

    
    

26. The Board did not show that the Respondent specifically refused inspection by denying the inspector access upon presentation of the inspector's credentials, the Board has failed to prove the allegations.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that the charges be dismissed.

DONE AND ENTERED this 21st day of February, 1992, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 21st day of February, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-6559

Petitioner's Proposed Findings of Fact 1-15. Adopted.

16-17. Rejected as contrary to more credible portion of Ms. Mantovani's testimony.

18. Adopted and moved to Paragraph 3.

COPIES FURNISHED:

Anna Polk, Executive Director Board of Massage

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esq.

General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

Lois B. Lepp, Esq. Department of Professional

Regulation

Northwood Centre, Suite 60 1940 N. Monroe Street Tallahassee, FL 32399-0792

Rita Brigugulio 643 Tanglewood

Daytona Beach, FL 32114

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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF MASSAGE

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MASSAGE,

Petitioner,

vs. CASE NO: 91-02004

DOAH NO: 91-6559

RITA BRIGUGLIO D/B/A LICENSE NO.: MA 0004771 MASSAGE BY OLGA, MM 1233

Respondent.

/

ORDER

THIS MATTER came before the Board of Massage for final action pursuant to Section 120.57(1)(b)10, Florida Statutes, at a public meeting on May 4, 1992, in Tallahassee, Florida, for the purpose of considering the Recommended Order issued by the Hearing Officer in the above styled case. The Petitioner was represented by E. Renee Alsobrook. The Respondent was duly notified of the hearing but was neither present nor represented by counsel at the hearing.

After a review of the complete record in this matter, including consideration of the Hearing Officer's Recommended Order (a copy of which is attached hereto and incorporated herein by reference), and exceptions (if any) filed by the parties, the Board makes the following findings and conclusions:

FINDINGS OF FACT

1. The Hearing Officer's Findings of Fact as modified by the modifications requested in "Petitioner'S Exceptions to the Hearing Officer's Recommended

   Order" (a copy of which is attached hereto and incorporated herein by reference) are hereby approved and adopted.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact as adopted by the Board.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 480, Florida Statutes.

   
   

2. The Hearing Officer's conclusions of law as modified by the modifications requested in "Petitioner'S Exceptions to the Hearing Officer's Recommended Order" (a copy of which is attached hereto and incorporated herein by reference) are hereby approved and adopted.

   
   

3. There is competent, substantial evidence to support the Board's findings and conclusions.

PENALTY

IT IS THEREFORE ORDERED AND ADJUDGED:

Due to the modifications made to the findings of fact and conclusions of law, the dismissal recommended by the Hearing Officer is rejected.

Respondent shall pay an administrative fine in the amount of five hundred dollars ($500.00) to she Board. Said fine shall be paid within thirty (30) days.

To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine is paid within that thirty (30) day period, the suspension imposed shall not take effect. Upon payment of the fine after the thirty (30) days, the suspension imposed shall be lifted. If the licensee does not pay the fine within the said period, then the suspension shall take effect immediately upon expiration of the stay, without additional notice to the Respondent, who shall be required to surrender all licenses issued by the Board to the investigator of the Department of Professional Regulation or shall mail same to the Board offices. Upon payment of the fine after the 30 days, the suspension imposed shall be lifted.

This Order shall become effective upon filing with the Clerk of the Department of professional Regulation.

DONE AND ORDERED this 2nd day of June , 1992.

DANIEL A. ULRICH, CHAIRMAN BOARD OF MASSAGE

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to Section 120.59, Florida Statutes, any substantially affected person is hereby notified that they may appeal this Order by filing one copy of a

notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty

(30) days of the date this Order is filed.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by United States Mail to Rita Briguglio, 643 Tanglewood Street, Daytona Beach, Florida 32114 and Stephen F. Dean, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by hand delivery to E. Renee Alsobrook, Staff Attorney, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, by 5:00 P.M., this 8th day of June, 1992.

STATE 0F FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MASSAGE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner, DPR Case No. 91-2004 DOAH Case No. 91-6559

vs.

RITA BRIGUGLIO,

D/B/A MASSAGE BY OLGA,

Respondent.

/

PETITIONER'S EXCEPTIONS TO

THE HEARING OFFICER'S RECOMMENDED ORDER

COMES NOW, the Petitioner, by and through its undersigned counsel, and hereby files its Exceptions to the Findings of Fact and Conclusions of Law and Recommendation of the Recommended Order of the Hearing Officer (hereinafter, H.O.R.O.) filed in this cause and would state as follows:

1. The Hearing Officer concludes as a matter of law that "unannounced inspections are a good policy-and legally permissible" (H.O.R.O., p. 6).

   
   

   1. The Hearing Officer found as a matter of fact that the Respondent had a sign posted on the door which stated that no one without an appointment would be allowed entry. This sign also stated that the inspectors were "no exceptions" (H.O.R.O., p. 4).

      
      

      This sign amounts to a de facto refusal to permit the inspection. The Respondent stated that she would not open the door unless she had an appointment. And she would not allow the inspector in without an

      appointment. Yet an appointment is unnecessary as the Hearing Officer found "unannounced inspections are legally permissible."

      
      

      The Department contends that the Respondent knew that she was subject to unannounced inspections lest she would not have made a separate and distinct rule for the Department's inspectors. She was just trying to avoid this requirement by posting a sign.

      
      

   2. The Hearing Officer goes on to find that the Department should not be allowed to make that unannounced inspection in this case. The Hearing Officer states that the Department's inspector could easily make a telephone call and reach the Respondent to ask for an immediate inspection, and, therefore, "clearly, the Respondent would have had limited opportunity to correct deficiencies with the inspector just down the street."

   
   

   This is NOT an unannounced inspection. Any amount of notice, be it 1 minute or 3 days, is a sufficient amount of time for the Respondent to rush any unlicensed persons out the back door, to stop performing unlicensed or illegal activities, or to quickly clean up any violations. This notice would- be contrary to the law and the public policy that unannounced inspections serve.

   
   

   Further, Ms. Mantovani testified that she was able to reach the Respondent because the Respondent had an answering machine and that the Respondent would call her back (T-27). Under the Hearing Officer's standard, he presumes that when Ms. Mantovani said it was easy to reach the Respondent, it was because when Ms. Mantovani called, the Respondent answered her telephone (Paragraph 16, p. 4, H.O.R.O.). Such was not the case. The Respondent utilized an answering machine (T-27). The Respondent could screen her calls by using the answering machine and, once again, avoid an unannounced inspection and the Department, once again, would be unable to prosecute because we could not show a pattern of avoiding the inspection.

   
   

2. The Department requests that the Board adopt the Recommended Order with the following modifications:

1. Findings of Fact

   1. That the Board find that the Respondent utilized an answering machine (T-27).

   2. That Paragraph 16, p. 4 of the H.O.R.O. be modified to say that the Respondent could be reached by telephone without difficulty because she utilized an answering machine and would call the inspector back.

      
      

2. Conclusions of Law

   1. That the Board conclude as a matter of law that the facts established in Paragraph 13, page 4 of the Recommended Order constitute a refusal to allow an inspection.

   2. That the Board conclude as a matter of law that it is not appropriate nor necessary to contact a licensee to request an immediate inspection where the law allows for unannounced inspections.

   3. That telephone or any other type of contact at any time prior to the inspection allows a licensee ample opportunity to correct statutory or rule violations.

   4. That the Respondent violated Section 480.046(1)(l), Fla. Stat., by refusing to permit an inspection of the business premises during regular business hours.

3. Recommendation

   1. That an administrative fine of $500 be imposed in accordance with the Board's guidelines, Rule 2lL.20.002(2)(L), F.A.C.

WHEREFORE Petitioner respectfully submits that the Board of Massage should adopt the Recommended Order of the Hearing Officer in the above-cited matter, with modifications in accordance with the Exceptions filed herein.

Respectfully submitted,

Lois B. Lepp Senior Attorney

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

(904) 487-2127

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to Rita Briguglio, d/b/a Massage, by Olga, 643 Tanglewood, Daytona Beach, FL 32114 this 9th day of March , 1992.

Lois B. Lepp Senior Attorney

Docket for Case No: 91-006559

Orders for Case No: 91-006559