STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MASSAGE THERAPY, )

)

Petitioner, )

)

vs. )

) THOMAS OAKLEY MILLER, L. M. T., )

)

Respondent. )

Case No. 03-2017PL

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on August 27, 2003, in Ft. Myers, Florida.

APPEARANCES

For Petitioner: Brian J. Stabley, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Michael C. Tice, Esquire

2180 West First Street, Suite 401 Fort Myers, Florida 33901

STATEMENT OF THE ISSUES

(1) Whether Respondent, Thomas Oakley Miller, L. M. T., used his massage therapist-patient relationship to induce or attempt to induce Patients J. G., K. L. or J. F. to engage, or to engage or attempt to engage, Patients J. G., K. L. or J. F.

in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of Patients J. G.,

K. L. or J. F. thereby violating Subsection 480.046(1)(o), Florida Statutes, by violating Section 480.0485, Florida Statutes, and Florida Administrative Code Rules 64B7-26.010(1), (2), and (3); (2) Whether the alleged sexual activity or attempts at sexual activity with Patients J. G., K. L. or J. F. occurred in Respondent's massage establishment, thereby violating Subsection 480.406(1)(o), Florida Statutes,1 by violating Florida Administrative Code Rules 64B7-26.010(1), (2), and (3); and (3) Whether Respondent engaged in 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 when providing massage therapy to Patients J. G., K. L. or J. F., thereby violating Subsection 480.046(1)(h), Florida Statutes.

PRELIMINARY STATEMENT

On May 2, 2002, Petitioner, Department of Health, Board of Massage Therapy, filed an Administrative Complaint, which included complaints of four patients ( J. G., K. L., B. G., and

J. F.) alleging that Respondent violated various statutes and Florida Administrative Code rules in the practice of massage therapy. In particular, Respondent is accused of using the

massage therapist-patient relationship to induce or attempt to induce patients to engage in sexual activity; in addition, these same activities are the bases of allegations that Respondent engaged in gross or repeated malpractice. Respondent, in his capacity as owner and operator of Calm Palm Massage Therapy, stands accused of violating statutes or rules prohibiting sexual activity in a massage establishment. Finally, the Administrative Complaint alleges that Respondent is unable to practice massage with reasonable skill and safety due to illness, alcohol, drugs or as a result of any physical or mental condition.

On April 11, 2003, Respondent requested a hearing disputing issues of material facts in the Administrative Complaint.

On May 29, 2003, Petitioner forwarded this case to the Division of Administrative Hearings. On May 30, 2003, an Initial Order was sent to both parties. On June 13, 2003, this case was scheduled for final hearing on August 25 through 29, 2003. On July 21, 2003, on Petitioner's motion, the case was rescheduled for August 27 and 28, 2003.

The case was heard as rescheduled on August 27, 2003. At the final hearing, Petitioner presented two witnesses, J. G. and

1. L.,2 and offered three exhibits, which were admitted as Petitioner's Exhibits 1 through 3. In addition, Petitioner offered the depositions of Jennifer Mason, who is accepted as an

   expert witness in massage therapy, and J. F., a patient of Respondent included as a complainant in the Administrative Complaint. Both depositions were considered by the undersigned Administrative Law Judge. Respondent testified in his own behalf; Respondent did not offer any exhibits.

   The Transcript of Proceedings was filed with the Division of Administrative Hearings on September 9, 2003. The parties jointly filed a motion requesting the proposed recommended orders be submitted on or before November 1, 2003. The joint motion was accepted by Order dated September 30, 2003. On October 29, 2003, Respondent filed an unopposed motion to extend the time for filing proposed recommended orders to November 12, 2003. This motion was approved and incorporated into an Order dated October 29, 2003. Both parties submitted Proposed Recommended Orders that were considered by the undersigned Administrative Law Judge.

   FINDINGS OF FACT

   
   

   Based on stipulations, official recognitions, and oral and documentary evidence presented at the final hearing, the following findings of fact are made:

   1. Petitioner is the state agency charged with regulating the practice of massage therapy.

   2. Respondent is a Florida-licensed massage therapist.

      
      

      His license is numbered MA 0029801. He is subject to the regulatory and disciplinary jurisdiction of Petitioner.

   3. At all times material, Respondent owned and operated Calm Palm Massage Therapy, a licensed massage establishment. Calm Palm Message Therapy holds license number MM 0010166. Respondent in his capacity as owner-operator of Calm Palm Massage Therapy is subject to the regulatory and disciplinary jurisdiction of Petitioner.

   4. Petitioner's Administrative Complaint contains allegations related to complaints filed with Petitioner by four patients of Respondent: J. G., K. L., B. G. and J. F. No evidence was presented relating to the complaints of Patient

      B. G. As a result, the issues of fact to be litigated are based on alleged violations predicated on complaints made by three patients: J. G., K. L. and J. F.

      Patient K. L.

      
      

   5. Patient K. L. is a licensed massage therapist with extensive professional experience.

   6. Patient K. L. had three massage therapy sessions with Respondent during the months of October and November 2000.

   7. During the third massage therapy session, while Patient

      
      

      K. L. was in a relaxed, sleepy state, and not paying particular attention to what Respondent was doing, Respondent began kissing

      Patient K. L. on her upper inner thigh and pubic hair. When Patient K. L. became aware that Respondent was kissing her upper inner thigh and pubic hair, she objected and the activity ceased.

   8. Respondent's kissing Patient K. L.'s upper inner thigh and pubic area was likely to cause erotic arousal. Furthermore, this conduct by Respondent constitutes sexual activity and is outside the scope of the practice of massage or massage therapy.

   9. Respondent acknowledged that his hand was in Patient

      
      

      K. L.'s pubic hair. He attributes this "accidental" touching to the fact that Patient K. L. was particularly flexible and capable of being stretched beyond normal limits allowing his hand to slip past the junction of her leg and groin.

   10. Respondent telephoned Patient K. L. the following day and apologized for kissing her in the pubic area. He made a written apology, dated November 20, 2000, which acknowledged being "carried away" and "inappropriate" touching.

       Patient J. G.

       
       

   11. Patient J. G. is a 51-year-old, licensed massage therapist. She has been licensed since 1999. She first became acquainted with Respondent while she attended massage therapy school. As a part of her practical massage therapy education, she and Respondent gave each other massages while she was in school.

   12. From February through April 2000, Patient J. G. availed herself of Respondent's professional massage therapy services. During two sessions, in April 2000, Respondent caused his lips to touch Patient J. G.'s lips, touched other parts of her face with his lips, and kissed her on the forehead.

   13. On the occasion of the second massage and more overt kissing of her face and lips, Patient J. G. objected and complained that the massage "was not right." She further commented to Respondent that, "we just learned in school about ethics and morality and what you have done, you are over the line. This is not right. This doesn't feel right."

   14. Subsequent to this final massage, Respondent sent Patient J. G. a $30 refund and a note. The note contains references to "sexuality" and "sexual issues," and Respondent indicates that, "I intend no offense to women," but the note is not incriminatory.

   15. Patient J. G. testified that she did not believe that Respondent's brushing and kissing of her face and lips during the referenced massages was intended to seduce her or induce her to engage in sexual activity.

       Patient J. F.

       
       

   16. While Patient J. F. was a student at the Florida Academy of Massage Therapy, she sought Respondent's assistance as a tutor preparing Patient J. F. for her massage examinations.

   17. In September 2000, Patient J. F. was giving Respondent a full body massage as a part of her tutorial experience. During the massage, Respondent began moaning and groaning. This made Patient J. F. feel uncomfortable. Later in the massage, Respondent fell asleep.

   18. When Respondent's massage was concluded, Patient J. F. mentioned that her shoulder was bothering her. Respondent attempted to massage Patient J. F.'s shoulder while both were standing. Patient J. F. asked Respondent not to massage her shoulder; however, Respondent continued to massage her shoulder pinning her against a wall and trapping her against the wall with his lower torso. Because of Respondent's superior size and strength, Patient J. F. was unable to escape. She repeatedly asked Respondent not to massage her shoulder. He finally stopped when she said that she had to call her sister.

   19. Patient J. F. believed that Respondent was attempting to engage her in sexual activity.

   20. The massages which took place in 2000 with Patients

       
       

       K. L., J. G., and J. F. occurred in Respondent's massage establishment known as Calm Palm Massage Therapy.

   21. The deposition testimony of Jennifer Mason and her opinions contained therein are accepted as "expert" testimony as contemplated by Section 90.702, Florida Statutes. It is never appropriate for a massage therapist to massage, kiss or touch a

       patient's genital areas. It is never appropriate for a massage therapist to kiss any part of a patient's body.

       CONCLUSIONS OF LAW

       
       

   22. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

   23. A proceeding to suspend, revoke, or impose other discipline upon a professional license is penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, Petitioner must prove the charges against Respondent by clear and convincing evidence. Department of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987)); Nair v. Department of Business & Professional Regulation, 654 So. 2d 205 (Fla. 1st DCA 1995).

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

       
       

       4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that

       clear 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 testimony must be precise and explicit and the witnesses must be lacking 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.

       
       

       Id. The Florida Supreme Court later adopted the Fourth District's description of the clear and convincing evidence standard of proof. Inquiry Concerning Davey, 645 So. 2d 398,

       404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Brothers, Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev.

       denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).

       
       

   25. Because the discipline imposed for the violation of Section 480.0485 and Subsections 480.046(1)(o) and 480.046(1)(h), Florida Statutes, and Florida Administrative Code Rules 64B7-26.010(1), (2), and (3) is penal in nature, the statute alleged to have been violated, must be strictly construed in favor of the licensee. Breesmen v. Department of Professional Regulation, Board of Medicine, 567 So. 2d 469 (Fla. 1st DCA 1990); Farzad v. Department of Professional Regulation, 443 So. 2d 373 (Fla. 1st DCA 1983).

   26. Petitioner alleges that Respondent violated Subsection 480.046(1)(o), Florida Statutes, by violating Section 480.0485, Florida Statutes, and Florida Administrative Code Rules 64B7- 26.010(1), (2), and (3). Subsection 480.046(1)(o), Florida Statutes, reads as follows:

       1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

          
          

          * * *

          
          

          (o) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.

          
          

   27. Section 480.0485, Florida Statutes, reads as follows:

       
       

       The massage therapist-patient relationship is founded on mutual trust. Sexual misconduct in the practice of massage therapy means violation of the massage therapist-patient relationship through which the massage therapist uses that relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of massage therapy is prohibited.

       
       

   28. Florida Administrative Code Rules 64B7-26.010(1), (2), (3), and (4), read as follows:

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

          
          

       2. No massage establishment owner shall engage in or permit any person or persons to engage in sexual activity in such owner’s

          massage establishment or use such establishment to make arrangements to engage in sexual activity in any other place.

          
          

       3. 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.

          
          

       4. 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 subsection, 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 64B7-31.001, F.A.C, from practicing colonic irrigation.

          
          

   29. Respondent is charged in the Administrative Complaint with violating Subsection 480.046(1)(g), Florida Statutes, which reads as follows:

       1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

          
          

          * * *

          
          

          1. Being unable to practice massage with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or

             as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon probable cause, authority to compel a massage therapist to submit to a mental or physical examination by physicians designated by the department. Failure of a massage therapist to submit to such examination when so directed, unless the failure was due to circumstances beyond her or his control, shall constitute an admission of the allegations against her or him, consequent upon which a default and final order may be entered without the taking of testimony or presentation of evidence. A massage therapist affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that she or he can resume the competent practice of massage with reasonable skill and safety to clients.

             
             

   30. Although violation of Subsection 480.046(1)(g), Florida Statutes, is alleged in the Administrative Complaint, no evidence was presented to support this alleged violation.

   31. Respondent is charged in the Administrative Complaint with violation of Subsection 480.046(1)(h), Florida Statutes, which reads as follows:

       1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

          
          

          * * *

          
          

          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.

   32. Where the licensee is charged with a violation of professional conduct and the specific acts or conduct required of the professional are explicitly set forth in the statute or valid rule promulgated pursuant thereto, the burden on the agency is to show a deviation from the statutorily-required acts; but where the agency charges violation of general standards of professional conduct, i.e., the failure to exercise the degree of care, skill and treatment expected of a professional, the agency must present expert testimony that proves the required professional conduct, as well as the deviation therefrom. Purvis v. Department of Professional Regulation, 461 So. 2d 134 (Fla. 1st DCA 1984).

   33. Petitioner presented clear and convincing evidence that Respondent's conduct in kissing Patient K. L. in her groin and pubic area was inappropriate as direct contact intended to erotically stimulate either Respondent or Patient K. L., or both of them, and to cause sexual arousal. Respondent's conduct was clearly and convincingly intended to induce Patient K. L. to engage in sexual activity.

   34. Respondent's conduct in kissing and brushing his lips against Patient J. G.'s lips, face and head is more difficult to assess. While it appears to the undersigned that Respondent's kissing and brushing with his lips on Patient J. G.'s lips, face, and head was intended to sexually arouse her, Patient

       J. G.'s testimony that it was not an attempt to engage in sexual activity or induce her to engage in sexual activity, creates enough doubt in this trier of fact's mind, that the standard of proof, clear and convincing, is not met with regard to allegations that Respondent attempted to engage or induce Patient J. G. to engage in sexual activity.

   35. However, unrebutted expert testimony declared that there was no circumstance in which it is appropriate for a massage therapist to kiss a patient's body; the evidence is clear and convincing that Respondent kissed various parts of the bodies of Patients K. L. and J. G. This conduct clearly violates Subsection 480.046(1)(h), Florida Statutes.

   36. The allegations of violations based on Respondent's interaction with Patient J. F. fall short of the quantum of proof required.

   37. The sexual activity prohibited by statute and rule took place in a licensed massage establishment owned and operated by Respondent.

RECOMMENDATION

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

RECOMMENDED that Petitioner, Department of Health, Board of Massage Therapy, enter a final order finding that Respondent violated Subsection 480.046(1)(o), Florida Statutes, by

violating Section 480.0485, Florida Statutes; Subsection 480.046(1)(h), Florida Statutes; and Florida Administrative Code Rules 64B7-26.101(1), (2), and (3) and that his license be revoked.

DONE AND ENTERED this 18th day of November, 2003, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2003.

ENDNOTES

1/ Subsection 480.046(1)(o), Florida Statutes, was formally identified as Subsection 480.046(1)(k), Florida Statutes (2001).

2/ Patient C. L., as noted in the transcript of proceedings, and K. L., noted in the Administrative Complaint and elsewhere in pleadings, are one and the same person.

COPIES FURNISHED:

Brian J. Stabley, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Michael C. Tice, Esquire

2180 West First Street, Suite 401 Fort Myers, Florida 33901

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

William H. Buckhalt, Executive Director Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701

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: 03-002017PL

Orders for Case No: 03-002017PL