STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MASSAGE, )

)

Petitioner, )

)

vs. ) Case No. 97-5887

)

339 HEALTH STUDIO, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on April 29, 1998, in Miami, Florida.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Maureen L. Holz, Esquire Williams and Holz, P.A.

458 West Tennessee Street Tallahassee, Florida 32301

For Respondent: Jeffrey S. Weiner, Esquire

Two Datran Center, Suite 1910 9130 South Dadeland Boulevard Miami, Florida 33156-7858

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 5, 1996, the Department of Business and Professional Regulation filed a one- count Administrative Complaint against Respondent, a licensed massage establishment, for a perceived violation of Chapter 480, Florida Statutes. The Administrative Complaint alleged the following:

1. Petitioner is the state agency charged with regulating the practice of Massage pursuant to FLA. STAT. Sections 20.165, 455, and 480 (1995). . . .

2. Respondent's last known address is 339

   N.E. 167th Street, North Miami Beach, Florida 33162.

3. Respondent is a duly licensed massage establishment having been issued license Number MM 0005810.

4. In or around December 19, 1995, the Department conducted an inspection of Respondent establishment.

5. Respondent establishment was furnished to provide massage services.

6. In or around December 19, 1995, You Won Park provided body massages for compensation at Respondent establishment.

7. You Won Park is not duly licensed as a massage therapist in the State of Florida.

   COUNT I

   
   

8. Petitioner realleges and incorporates by reference the allegations in paragraphs one through seven.

9. Based on the foregoing, Respondent has violated FLA. STAT. Section 480.046 (1)(k) (1995) through Respondent's violation of

480.047 (1)(c) (1995) to wit Respondent permitted an employed person to practice massage without being duly licensed to do such.

WHEREFORE, Petitioner respectfully requests the Board to enter an order imposing one or more of the following penalties: revocation

or suspension of the Respondent's license, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board deems appropriate.

Following the rejection by the Board of Massage of a proposed settlement stipulation, the agency, under cover letter of December 15, 1997, forwarded the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to

Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes. Consistent with the provisions of Chapter 96-403, Sections 8 and 24, Laws of Florida, the Department of Health was substituted as the party (agency) in interest in these proceedings.

At hearing, the parties stipulated to paragraphs 1 through 3 of the Administrative Complaint. The Petitioner called Denise Quintela, an inspector employed by the Department of Business and Professional Regulation, and Petitioner's Exhibit 1 was received into evidence. Respondent offered no additional proof.

The transcript of hearing was filed May 29, 1998, and the parties were accorded ten days from that date to file proposed recommended orders. Petitioner elected to file such a proposal and it has been duly considered.

FINDINGS OF FACT

1. At all times material hereto, Respondent, 339 Health Studio, Inc., was licensed as a massage establishment, having been issued license number MM0005810, and conducted business at

   339 Northeast 167th Street, North Miami Beach, Florida.

   
   

2. On December 19, 1995, Denise Quintela, an inspector employed by the Department of Business and Professional Regulations, visited the licensed premises to conduct an inspection. Ms. Quintela identified herself to the "front desk clerk," who allowed her admission ("opened the door") to the premises. (Transcript, page 10). Apparently, in the "office where the front desk clerk was sitting down," there was a sign posted which listed the services, and their prices, offered by the establishment, including a massage for $80.00. (Transcript, page 17).

3. Following admission, Ms. Quintela "started opening the curtains to make sure there was people working," and, upon opening one of the curtains, she observed "a lady working there with a gentleman," "the lady was standing, and the gentleman was lying down, and she was performing a massage." (Transcript, pages 10 and 11).

4. Observing such activity, Ms. Quintela asked the lady for her massage license, but received no response. Thereupon, the "front desk clerk" volunteered that "she doesn't have a license."1 (Transcript, page 11).

5. By examination of the lady's driver's license,

   
   

   Ms. Quintela identified her as You Won Park. According to the Department's records, You Won Park was not then, nor had she ever been, licensed as a massage therapist in the State of Florida.

   (Petitioner's Exhibit 1).

   
   

6. Apart from any inferences that could be drawn from the foregoing findings, the only proof offered regarding You Won Park's relationship with the Respondent was the following testimony of Ms. Quintela:

   DIRECT EXAMINATION

   
   

   * * *

   
   

   Q. And did you determine whether Ms. Park was employed at the 330 Health Studio?

   
   

   A. Yes.

   
   

   * * * CROSS-EXAMINATION

   * * *

   
   

   Q. Were there any documents showing that that lady was employed there that you saw?

   
   

   A. No.

   
   

   Q. Was the sole basis for your determining that she was employed there your seeing her there?

   
   

   A. She was working there, yes.

   
   

   Q. Do you know if she was paid a salary?

   
   

   A. At the moment, I didn't see any money exchanged, no.

   
   

   Q. Not just at the moment, I mean in the whole world: Have you any indication that she received payment -- either cash, checks --

   
   

   A. No.

   
   

   Q. Anything of that nature?

   
   

   A. No.

   * * *

   
   

   Q. . . . So is the answer you don't know if she was employed there or not?

   
   

   A. Well, she was employed because she was working there.

   
   

   Q. Well --

   
   

   A. And the lady -- the front desk clerk told me that she was an employee there. And I believe I put down how long she worked there. Did I?

   
   

   Q. You noted in the report three weeks. But you don't know that she was an employee, do you?

   
   

   A. (No response.)

   
   

   Q. I mean, you don't have any evidence that she was an employee or that she was being paid other than the fact that she was there; is that true?

   
   

   A. Right.

   
   

   * * *

   
   

   Q. You do not know, do you, whether any money was exchanged between the supposed patron or the person allegedly getting the massage and the lady supposedly giving the massage?

   
   

   A. No.

   
   

   * * * REDIRECT EXAMINATION

   * * *

   
   

   Q. Was there any discussion with regard to a fee?

   
   

   A. No.

   Q. In your investigative report, there's a reference to the amount of time that Ms. Park was working there. How did you make a determination how long Ms. Park was working at the establishment?

   
   

   A. I asked the person in charge -- the front desk clerk. . . .

   
   

   (Transcript, pages 13 through 16, and 18).

   
   

7. Apart from the statements attributed to the "front desk clerk," the results of Ms. Quintela's inspection, as evidenced by her testimony, are ambiguous, and are not sufficiently detailed to provide a reliable foundation on which to base a conclusion, with any degree of confidence, as to what relationship, if any, existed between the Respondent and You Won Park. Notably, based solely on Ms. Quintela's observations, You Won Park's presence and activities were equally consistent with what one would expect of an employee practicing massage or a non-employee who Respondent was permitting to practice massage on the licensed premises.2 You Won Park's activities were also consistent with those of a volunteer, as where one would accord an acquaintance a rub down.

8. As for the comments Ms. Quintela attributes to the "front desk clerk" regarding You Won Park's status on the premises, they too are ambiguous and lacking in adequate detail. In this regard, it is observed that the statements of the "front desk clerk" may have simply meant that You Won Park had "worked" on the premises for three weeks, which is not necessarily the same as being engaged as an "employee." Apart from the ambiguity

   of the statements attributed to the "front desk clerk," they are also hearsay, and not subject to a hearsay exception.3 Consequently, the clerk's comments cannot support the conclusion that You Won Park was Respondent's employee.

9. In sum, it must be concluded that, due to the paucity of proof, Petitioner has failed to demonstrate that You Won Park was Respondent's employee.4

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

11. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence.

    Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). That standard requires that "the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and 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 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 (Fla. 4th DCA 1983).

    
    

12. Moreover, the disciplinary action taken may be based only upon the offenses specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation,

    458 So. 2d 844 (Fla. 2d DCA 1984). Finally, in determining whether Respondent violated the provisions of section 475.25(1), as alleged 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." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

13. Pertinent to this case, Section 480.046, Florida Statutes, authorizes the Board of Massage to revoke or suspend a license, issue a reprimand or censure, and to impose an administrative fine not to exceed $1,000 for each count or separate offense, when it is shown that the massage establishment is guilty of "[v]iolating any provision of this chapter."

    Section 480.046(1)(k), Florida Statutes.

    
    

14. The provision of Chapter 480, Florida Statutes, identified by the Department in the Administrative Complaint as forming the basis on which the perceived violation of subsection 480.046(1)(k) rests was Subsection 480.047(1)(c),

    Florida Statutes. That subsection provides that it is "unlawful for any person to . . . [p]ermit an employed person to practice massage unless duly licensed as provided [in Chapter 480]."

15. Here, for the reasons set forth in the Findings of Fact, the proof failed to demonstrate that You Won Park was employed by Respondent. Consequently, the Department failed to demonstrate that Respondent violated the provisions of subsection 480.047(1)(c) and, therefore, subsection 480.046(1)(k).

RECOMMENDATION

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

RECOMMENDED that a Final Order be rendered which dismisses the Administrative Complaint.

DONE AND ENTERED this 12th day of June, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1998.

ENDNOTES

1/ Respondent's counsel objected to such testimony on the basis of hearsay, and such testimony was received subject to the limitations of Section 120.57(1)(c), Florida Statutes. That subsection provides "[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."

2/ Even Chapter 480, Florida Statutes, contemplates at least two situations in which an unlicensed person may practice massage in a licensed massage establishment and for which the establishment may be subject to disciplinary action. See Sections 480.046(1)(e) and 480.047(1)(c), Florida Statutes. Here, Respondent was charged with a violation of subsection 480.047(1)(c) by allowing an "employed person" to practice massage when not duly licensed, and not subsection 480.046(1)(e) which proscribes the "[a]iding, assisting, procuring, or advising any unlicensed person to practice massage contrary to [law]."

3/ Section 90.803(18)(d), Florida Statutes, provides an exception to the hearsay rule for admissions. That provision excepts from the hearsay rule "a statement that is offered against a party and is . . . [a] statement by the party's agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship." Thus, for an employee's admission to fall within the exception it must be shown that "the matter is within the scope of the employment." Chaney v. Winn Dixie Stores, Inc., 605 So. 2d 527 (Fla. 2d DCA 1992);

Thee v. Manor Pines Convalescent Center, Inc., 235 So. 2d 64, 65 (Fla. 4th DCA 1970) ("A statement made by an employee of the defendant in the course of and relating to matters within the penumbra of his duties is a recognized exception to the hearsay rule."); and Gordon v. Hotel Seville, 105 So. 2d 175 (Fla. 3d DCA 1958). Here, there was no showing made that personnel matters or employment decisions were involved in any way with the "front desk clerk's" duties and, therefore, no showing that her observations regarding the matter were within the scope of her employment.

Moreover, her statements likely present a classic case of "double hearsay"; however, there being no showing as to how she reached her conclusion that YOU WON PARK was an "employee" that issue cannot be addressed. Zaben v. Air Products & Chemicals, Inc., 129 F.3d 1453 (11th Cir 1997).

4/ In reaching such conclusion, the undersigned is not unmindful that employment may be demonstrated by circumstantial evidence.

Chaney v. Winn Dixie Stores, Inc., 605 So. 2d 527 (Fla. 2d DCA 1992), and Thee v. Manor Pines Convalescent Center, Inc., 235 So. 2d 64 (Fla. 4th DCA 1970). However, in this case, the proof offered was lacking in sufficient detail to permit such a conclusion to be drawn with any degree of confidence.

COPIES FURNISHED:

John O. Williams, Esquire Maureen L. Holz, Esquire Williams and Holz, P.A.

458 West Tennessee Street Tallahassee, Florida 32301

Jeffrey S. Weiner, Esquire Two Datran Center, Suite 1910 9130 South Dadeland Boulevard Miami, Florida 33156-7858

Joe Baker, Executive Director Board of Massage

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

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: 97-005887

Orders for Case No: 97-005887