STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF MASSAGE, )

)

Petitioner, ) CASE No. 95-4488

)

vs. )

) SABINA DAHLBERG'S MASSAGE ) THERAPY, )

)

Respondent. )

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF MASSAGE, )

)

Petitioner, ) CASE No. 96-1991

)

vs. )

)

SABINA DAHLBERG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Susan B. Kirkland, held a formal hearing in this case on March 25 and 26, 1997, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Ruby Seymour-Barr, Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Jerome H. Shevin, Esquire

Jerome H. Shevin, P.A.

100 North Biscayne Boulevard, 30th Floor Miami, Florida 33132

Martin M. Solomon, Esquire 1440 Northwest 70th Terrace Margate, Florida 33063

STATEMENT OF THE ISSUES

Whether Respondent Sabina Dahlberg's Massage Therapy violated Sections 480.46(1)(k) and 480.043(7), Florida Statutes (1993), whether Respondent Sabina Dahlberg violated Section 480.046(1)(k), Florida Statutes (1993), and if so, what penalties should be imposed.

PRELIMINARY STATEMENT

On March 28, 1994, Petitioner, Department of Business and Professional Regulation (Department), filed a two-count administrative complaint against Respondent, Sabina Dahlberg Massage Therapy, alleging that sexual activity had occurred in the massage establishment and that the massage establishment license had been transferred from one name to another. On February 15, 1996, the Department filed a two-count administrative complaint against Respondent Sabina Dahlberg's alleging that she had used her therapist-client relationship to engage in sexual activity with a client.

The cases were forwarded to the Division of Administrative Hearings and were consolidated by Order dated May 3, 1996. The cases were originally assigned to Administrative Law Judge Stuart

Lerner, but were transferred to Administrative Law Judge Susan Kirkland for final hearing.

At the final hearing Petitioner called the following witnesses: Joseph Ventura, Ira Berg, Leonard Baldwin, and Chris Percival. Petitioner’s Exhibits 1-4 were admitted in evidence.

At the final hearing Respondents called the following witnesses: Sabina Dahlberg, Donna M. Booras, Ursula Metzler, Cynthia Williams, and Dorothy Martin. Respondents’ Exhibits 1-6 were admitted in evidence.

The parties agreed to file proposed recommended orders within thirty days of the date of the filing of the transcript. The transcript was filed on March 19, 1997. On May 5, 1997, Petitioner filed a Motion for Extension of Time, requesting that the deadline for filing proposed recommended orders be extended to May 12, 1997. The motion was granted. The parties timely filed their proposed recommended orders.

FINDINGS OF FACTS

1. Respondent Sabina Dahlberg (Dahlberg) holds a massage therapy license from the state of Florida, license number, MA0011128. Dahlberg owns Sabina Dahlberg’s Massage Therapy which holds a massage establishment license from the state of Florida, license number MM004301.

2. In March, 1993, Dahlberg opened a vitamin store, Powerhouse Vitamins, at 732 S. Federal Highway, Dania, Florida.

   At that time Dahlberg was involved in professional body building and did not provide massage therapy services.

3. Subsequent to the opening of the vitamin store, Dahlberg began to give massages in the rear of the building. There is a neon sign in the front window of the store which says "massages."

4. Dahlberg filed an application with the Department of Business and Professional Regulation (Department) to obtain the necessary license for a massage therapy establishment. The license was issued to Sabina Dahlberg’s Massage Therapy located at the 732 South Federal Highway address.

5. Between August 1993 and March 1994, Dahlberg employed licensed massage therapists Cynthia Williams and Dorothy Martin. Donna Booras, who was then under the apprenticeship of Dorothy Martin, also worked at Dahlberg’s establishment.

6. In August, 1993, Ruth "Debbie" Cerminaro was also working at the establishment known as Powerhouse Vitamins. Ms. Cerminaro had a cosmetology license and was hired to perform facials, body wraps, and body waxing. Ms. Cerminaro did not have a license to give massages.

7. Sometimes Dahlberg’s mother, Ursula Metzler, would help out at the store by answering the telephones and selling vitamins. At one time Ms. Metzler was considering becoming an apprentice in order to obtain a license to practice massage. Dahlberg testified that her mother never performed massages;

   however the pages from the store’s appointment book indicate that on March 3, 1994, Ursula had two appointments.

8. In each massage room there is a sign which tells the customers, "Don’t even ask" for illegitimate acts.

9. A customer could get a half-hour massage for $25 or a full hour massage for $45. The half-hour massage consisted of massaging the back and the back of the legs. The hour massage consisted of massaging the back, the front and back of the legs, the arms, the chest, and the colon. It was not unusual for customers to leave tips.

10. In 1993 and 1994, Dahlberg had an arrangement with Dr. and Mrs. Spingarn to give the Spingarn’s massage therapy. Mrs. Spingarn had been involved in an accident and was receiving massage therapy as well as pool therapy from Dahlberg. For the most part, Mrs. Spingarn’s therapy was paid through workers’ compensation insurance. Dr. Spingarn was a dentist and at times Dahlberg would provide massage therapy to Dr. Spingarn in exchange for dental services.

11. Dr. Spingarn would be given the massages at his office, the Powerhouse Vitamins’ location, or at his home. Because of the severity of her injuries, Mrs. Spingarn usually received her massage therapy at home, but she had also been given therapy at her husband’s office. When she received therapy at home, Dahlberg would massage her for about one and one-half hours and provide therapy in the swimming pool for about an hour. The home

    sessions would usually begin in the morning around ten or eleven o’clock and go into the afternoon.

12. Around August 2, 1993, the Broward County Sheriff’s office received information alleging that Dahlberg and other employees at her business had engaged in sexual activity with customers at the business.

13. Detectives Chris Percival (Percival) and Joseph Ventura (Ventura) of the Broward County Sheriff’s Office were assigned to conduct an undercover operation to determine if prostitution was occurring at Dahlberg’s place of business.

14. On August 7, 1993, Ventura went to Powerhouse Vitamins and requested a massage. He was shown to a room in the back of the store, where he removed his clothes and placed a towel around his waist. A female named Debbie entered the massage room and told him to lay on his belly on the massage table. Debbie put lotion on her hands and began to massage Ventura’s back.

15. Halfway through the massage, Ventura asked Debbie if she worked for tips and what could he get for a tip. Debbie wanted to know what he wanted, and he told her that he wanted to be taken care of. She told him to roll over on his back. Debbie wanted to know if Ventura was a cop and he assured her that he was not. Debbie began to rub lotion on his upper leg area. She removed the towel, poured lotion on his groin area, and began to masturbate Ventura. Ventura told her to stop that he was nervous. Debbie stopped and then resumed the back massage. A

    few minutes later the massage ended. Ventura paid her for the massage, including a tip, and left.

16. On August 10, 1993, Detective Chris Percival (Percival) went to Powerhouse Vitamins for an appointment with Dahlberg for a massage at 4:30 p.m.

17. During the massage, Percival told Dahlberg that he was impotent. About twenty to twenty-five minutes into the massage, Dahlberg applied lotion to her hands and began to masturbate Percival. Percival stopped her and told her that he thought that she had taken care of his problem. He paid her for the massage and included a tip.

18. On August 10, 1993, Dahlberg gave a massage to Pat Spingarn at Mrs. Spingarn’s home. The message session started at ten o’clock and lasted for about one and one-half hours. They broke for lunch and then did pool therapy for an hour.

19. The distance from Mrs. Spingarn’s home to Dahlberg’s establishment is approximately a 45 minute drive.

20. There was sufficient time for Dahlberg to provide therapy to Mrs. Spingarn and return to her business establishment to give a massage to Percival beginning at 4:30 P.M.

21. On the afternoon of March 2, 1994, Percival went to Powerhouse Vitamins for a massage with Sabina at 4:30. Sabina remembered him from his previous visit.

22. Percival was shown to a room in the rear of the building where he disrobed. Sabina came in and began to give him

    a massage. About half way through the massage, Sabina told Percival to roll over face up. Sabina put a lubricant on her hands and massaged his penis. Once Percival achieved an erection, Sabina stopped. Percival paid her and left.

23. Respondent’s Exhibit Three is a page from the business’s appointment book for March 2, 1994. There is a notation that Sabina was not working that afternoon; however, the notation was written over an erasure that appeared to be an appointment from 4:30 to 5:30 p.m.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

25. The Department has the burden to establish by clear and convincing evidence the allegations against the Respondents. See Ferris v. Turlington, 510 So.2d 112 (Fla. 1987). The Court in Evans Packing Co. v. Department of Agriculture and Consumer Services, 550, So.2d 112 (Fla. 1st DCA 1989) describes the clear and convincing evidence standard as follows:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit; the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact, the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established.

    Slomowitz v. Walker, 429 So.2d 797, 800 (Fla.

    4th DCA 1983).

    Id. at 116, fn. 5.

    
    

26. In the administrative complaint against Sabina Dahlberg’s Massage Therapy, the Department has alleged that the Respondent violated Sections 480.043(7) and 480.46(1)(k), Florida Statutes (1993) and Rule 61G11-26.010(1), Florida Administrative Code.

27. Section 480.043(7), Florida Statutes (1993), provides:

    
    

    Once issued, no license for operation of a massage establishment may be transferred from one person, corporation, name or location to another

    
    

28. The Department has established by clear and convincing evidence that the establishment license was issued under the name of Sabina Dahlberg’s Massage Therapy but that the business was being operated under the name Powerhouse Vitamins in violation of Section 480.043(7), Florida Statutes (1993). See also Rule 61G11-26.007, Florida Administrative Code.

29. Rule 61G11-26.010, Florida Administrative Code provides:

    1. Sexual activity by any person or persons in any massage establishment is absolutely prohibited.

       * * *

       1. No licensed massage therapist shall use the therapist-client relationship to engage in sexual activity with any client or to make arrangements to engage in sexual activity with any client.

       2. As used in this rule, ‘sexual activity’ means any direct or indirect physical contact by any person or between persons which is

       intended to erotically stimulate either person or both or which is likely to cause such stimulation and includes sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse. For purposes of this section, masturbation means the manipulation of any body tissue with the intent to cause sexual arousal. As used herein, sexual activity can involve the use of any device or object and is not dependent on whether penetration, orgasm, or ejaculation has occurred. Nothing herein shall be interpreted to prohibit a licensed massage therapist, duly qualified under Rule 61G11-31.001, from practicing colonic irrigation.

30. Section 480.046(1)(k), Florida Statutes (1993) provides that a violation of a rule of the Department constitutes grounds for disciplinary action.

31. The Department has established by clear and convincing evidence that sexual activity occurred at Sabina Dahlberg's Massage Therapy establishment on August 7 and 10, 1993 and on March 2, 1994. The sexual activity is in violation of Rule 61G11-26.010(1), Florida Administrative Code.

32. In Count I of the administrative complaint against Sabina Dahlberg, the Department alleges that Dahlberg violated Rule 61G11-26.010 by masturbating Percival during a massage on August 10, 1993. The Department has established by clear and convincing evidence that Dahlberg did violate Rule 61G11-26.010 on August 10, 1993, and is subject to disciplinary action pursuant to Section 480.046(k), Florida Statutes (1993).

33. In Count II of the administrative complaint against Sabina Dahlberg, the Department alleges that Dahlberg violated

Rule 61G11-26.010 by masturbating Percival during a massage on March 12, 1994. No evidence was presented concerning any incident on March 12, 1994; therefore, the Department has not established by clear and convincing evidence that Dahlberg is guilty of the allegations set forth in Count II of the administrative complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered finding that Respondent Sabina Dahlberg’s Massage Therapy is guilty of the violations set forth in Counts I and II of the Administrative

guilty of the violation set forth in Count I of the Administrative Complaint in DOAH Case No. 96-1991, dismissing

Count II of the Administrative Complaint in DOAH Case No. 96- 1991, and revoking the massage therapy license of Sabina Dahlberg.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of May, 1997.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1997.

COPIES FURNISHED:

Ruby Seymour Barr, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Jerome H. Shevin, Esquire

100 North Biscayne Boulevard, 30th Floor Miami, Florida 33132

Joe Baker, Executive Director Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 95-004488

Orders for Case No: 95-004488