STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

vs. ) Case No. 97-0075

)

THOMAS MCKINNON, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on June 5, 1997, in West Palm Beach, Florida, before Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ruby Seymour-Barr, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: No Appearance

STATEMENT OF THE ISSUES

This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations in a three-count Administrative Complaint. The Administrative Complaint alleges violations of Paragraph (f), (h), and (i) of Section 480.046(1), Florida Statutes.

PRELIMINARY STATEMENT

Pursuant to a written Notice of Hearing furnished to all parties, this case was scheduled to be heard beginning at 10:00

a.m. on June 5, 1995, in West Palm Beach, Florida. At the appointed time and place, the Administrative Law Judge and counsel for the Petitioner were present; the court reporter and the Respondent were not. After delays associated with the procurement of a replacement court reporter, the hearing began at approximately 12:15 p.m.

At the hearing, the Petitioner presented the testimony of one witness and offered two exhibits, both of which were received in evidence. At the conclusion of the hearing the Petitioner requested, and was granted, ten days from the date of the hearing within which to file a proposed recommended order.

The Petitioner also requested, and was granted, ten days from the date of the hearing within which to file a supplement to Petitioner's Exhibit Number 2.

A transcript of the final hearing was filed with the Division of Administrative Hearings on June 30, 1997. On July 9, 1997, the Petitioner filed a proposed recommended order and also filed a supplement to Petitioner's Exhibit Number 2.

The Respondent did not attend the final hearing. The Respondent has not filed any post hearing documents for consideration by the Administrative Law Judge.

FINDINGS OF FACT

1. At all times material to this case, the Respondent has been licensed to practice massage therapy, having been issued license number MA0006547. At all times material to this case, the Respondent has also held a massage establishment license, having been issued establishment license number MM000556833.

   
   

2. In or around September of 1993, a Mr. J. V. T. 1/ read a newspaper article to the effect that the Respondent had successfully treated children suffering from attention deficit disorder by using vitamins and health supplements in lieu of drugs such as Ritalin. At that time Mr. J. V. T. had a minor son, D. T., who was suffering from attention deficit disorder

   and was taking Ritalin pursuant to a prescription written by the son's pediatrician. Shortly after reading the newspaper article, Mr. J. V. T. took his son to see the Respondent for the purpose of determining whether his son's condition could be treated without Ritalin.

   
   

3. Mr. J. V. T. and his son saw the Respondent at a facility named Advanced Health Center. At that location Mr. J.

   V. T. saw a massage therapy license for the Respondent. Mr. J.

   V. T. is not certain that was the only license. The purpose of Mr. J. V. T.'s visit was to obtain nutritional counseling with regard to his son's attention deficit disorder. He did not ask the Respondent to perform a massage on his son.

   
   

4. In or around January of 1994, the Respondent recommended that J. V. T.'s son undergo a blood test. The blood test was performed by someone else at another facility. Eventually, someone gave Mr. J. V. T. a videotape that was described to him as being a video tape of his son's blood test.

   
   

5. Shortly thereafter, Mr. J. V. T. met with the Respondent to discuss the results of the blood test. The Respondent told Mr. J. V. T. that the blood test showed that Mr.

   J. V. T.'s son had tape worms and that the tape worms were consuming large quantities of the nutrition and health supplements the son had been taking. The Respondent recommended some treatments to counteract the tapeworms.

   
   

6. Mr. J. V. T. lacked confidence in what he was being told by the Respondent and discussed the matter with his son's pediatrician. Based on his discussion with the pediatrician, Mr. J. V. T. did not seek any further services from the Respondent.

   
   

7. Mr. J. V. T. paid the Respondent for the services provided by the Respondent. Mr. J. V. T. does not believe that his son received any benefit from the services provided by the Respondent.

   
   

8. When questioned by Mr. J. V. T., the Respondent stated that he was self taught and that he was not a doctor.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.

   
   

10. The statutory definitions at Section 480.033, Florida Statutes (1993), include the following:

    
    

    1. 'Massage' means the manipulation of the superficial tissues of the human body with the hand, foot, arm, or elbow, whether or not such manipulation is aided by

       hydrotherapy, including colonic irrigation, or thermal therapy; any electrical or mechanical device; or the application to the human body of a chemical or herbal preparation.

    2. massage therapist' means a person licensed as required by this act, who administers massage for compensation.

       
       

11. Section 480.046, Florida Statutes (1993), reads as follows, in pertinent part:

    
    

    (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:

    * * *

    (f) Making deceptive, untrue, or fraudulent representations in the practice of massage.

    * * *

    1. Gross or repeated malpractice or the failure to practice massage with that level of care, skill, and treatment which is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumstances.

    2. Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform.

    
    

12. The basic legal principles applicable to a case of this nature were addressed as follows in the Recommended Order in Department of Business and Professional Regulation, Board of Massage v. Norman A. Eshleman, DOAH Case No. 94-6740, Recommended Order issued August 21, 1995:

    
    

    1. Where the disciplinary action sought is the revocation or suspension of the therapist's license, the proof of guilt must be clear and convincing. See Ferris v. Burlington, 510 So. 2d 292 (Flat 1987); Nair

       v. Department of Business and Professional Regulation, 20 FLW D983 (Flat 1st DCA April

       21, 1995); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245 (Flat 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Flat 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So. 2d

       500 (Flat ad DCA 1991). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Flat 4th DCA 1983).

       
       

    2. Where the discipline does not involve the loss of licensure, the therapist's guilt need be established by only a preponderance of the evidence. See Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Flat ad DCA 1990).

       
       

    3. Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So. 2d 129, 133 (Flat 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Flat 2d DCA 1984).

       
       

    4. Furthermore, in determining whether Section 480.046(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute

    . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulation, 348 So. 2d 923, 925 (Fla 1st DCA 1977).

    
    

13. Application of the legal principles quoted above to the facts in this case leads to the conclusion that the evidence

    in this case is insufficient to sustain the charges brought against the Respondent. The insufficiencies regarding each of the three counts are addressed in the paragraphs which follow.

    
    

14. Count I of the Administrative Complaint charges the Respondent with violation of Section 480.046(1)(f), Florida Statutes (1993), 2/ in that the Respondent allegedly "made deceptive, untrue, or fraudulent misrepresentations in the practice of massage.' (Emphasis supplied.) The evidence in this case shows that the Respondent's services regarding Mr. J.

    V. T.'s son did not involve "the practice of massage."

    Mr. J. V. T. did not ask for a massage, and the Respondent neither offered nor performed any service that constituted "the practice of massage." Accordingly, whatever may have been the nature of any representations or misrepresentations made by the Respondent to Mr. J. V. T., such representations or misrepresentations were not made "in the practice of massage," and, therefore, do not come within the scope of Section 480.046(1)(f), Florida Statutes (1993). See Elmariah v. DPR, Board of Medicine, 574 So. 2d 164 (Flat 1st DCA 1990). (Misrepresentations in applications for hospital privileges were misrepresentations "related to" the practice of medicine, but were not misrepresentations "in the practice of medicine.") Therefore, Count I of the Administrative Complaint must be dismissed.

    
    

15. Count II of the Administrative Complaint charges the Respondent with violation of Section 480.046(1)(h), Florida Statutes (1993), in that the Respondent allegedly "performed gross or repeated malpractice or failed to practice massage with that level of care, skill, and treatment which is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumstances." As discussed above regarding Count I, the evidence in this case shows that, with regard to Mr. J. V. T.'s son, the Respondent neither practiced nor attempted to practice massage. Whatever the Respondent was doing in that regard was something other than the practice of massage. The essence of the violation encompassed by Section 480.046(1)(h), Florida Statutes, is practicing massage poorly. Here, the Respondent was not practicing massage at all. Therefore, there is no evidence of a violation of Section 480.046(1)(h), Florida Statutes (1993), and Count II of the Administrative Complaint must be dismissed.

    
    

16. Count III of the Administrative Complaint charges the Respondent with violation of Section 480.046(1)(i), Florida Statutes (1993), in that the Respondent allegedly "practiced or

offered to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform." In view of the strict construction required by Lester

v. Department of Professional and Occupational Regulation, 348 So. 2d 923, 925 (Flat 1st DCA 1977), and several other cases, 3/ Section 480.046(1)(i) must be construed as limited in scope

to practicing or offering to practice "massage" beyond the scope permitted by law, and to accepting and performing "massage" professional responsibilities which the licensee knows or has reason to know that he is not competent to perform. Given this narrow construction, the facts proved in this case are not encompassed by Section 480.046(1)(i), Florida Statutes (1993), because, as discussed above, the Respondent neither practiced massage, nor offered to practice massage in the services he provided to Mr. J. V. T.'s son. Accordingly, Count III of the Administrative Complaint must be dismissed. 4/

RECOMMENDATION

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 22nd day of August, 1997, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 22nd day of August, 1997.

ENDNOTES

1/ Initials have been used to protect the privacy of the patient. For those who need to know, the full names are memorialized in the transcript.

2/ In the Administrative Complaint all statutory citations are to the 1995 version of the statutes. The events on which the charges are based took place from September of 1993 through January of 1994. During that time period, the 1993 version of the Florida Statutes was in effect.

3/ See Bach v. Florida State Board of Dentistry, 378 So. 2d 34 (Flat 1st DCA 1979); Farzad v. Department of Professional Regulation, 443 So. 2d 373 (Flat 1st DCA 1983); and Elmariah v. DPR Board of Medicine, 574 So. 2d 164 (Flat 1st DCA 1990).

4/ The result would be the same even if Section 480.046(1)(i), Florida Statutes (1993), were given a broad construction. This is because there is no clear and convincing evidence as to whether the Respondent did or did not hold a license that encompassed the scope of the services he provided to Mr. J. V. T.'s son. Further, there is no evidence one way or the other as to the Respondent's competence to perform the services he performed for Mr. J. V. T.'s son.

COPIES FURNISHED:

Ruby Seymour-Barr, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Mr. Thomas McKinnon

c/o Advanced Health Center

321 15th Street

West Palm Beach, Florida 33401

Joe Baker, Executive Director Board of Massage

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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: 97-000075

Orders for Case No: 97-000075