STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, v. - CASENO. 2019-11291 BERNARD TORRES, L.M.T., | RESPONDENT. / ADMINISTRATIVE COMPLAINT Petitioner Department of Health (Department) files this Administrative Complaint before the Board of Massage Therapy (Board) against Respondent, Bernard Torres, L.M.T., and in support thereof, alleges: 1. Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to Chapters 20.43, Florida Statutes (2018); Chapter 456, Florida Statutes (2018); and Chapter 480, Florida Statutes (2018). | 2. At all times material to this Complaint, Respondent was licensed to practice massage therapy within the State of Florida, having been issued license number MA 45418. 3. At all times material to this Complaint, Respondent's address of record was 11538 Treasury Circle North, Jacksonville, Florida 32246. 4. At all times material to this Complaint, Respondent provided massage therapy services.at Hand and Stone Massage and Facial Spa (Hand and Stone), located-in Jacksonville, Florida. 5. Onor about March 21, 2019, Respondent performed a deep tissue massage on D.R., a 61-year-old female at Hand and Stone. 6. In preparation for her massage, Patient D.R. removed her clothes and bra, laid on the massage table, and covered herself with the draping. 7. While Patient D.R. was face-up, Respondent moved the draping down to her hips exposing her breasts and upper torso. 8. Patient D.R. did not give informed consent to Respondent to expose her breasts. | . 9. . Respondent massaged Patient D.R.’s upper body and rubbed between Patient D.R.’s breasts. 2 10. Respondent touched Patient D.R.’s breasts several times while massaging her upper torso. | | | 11. Patient D.R. did not give Respondent informed consent to touch her breasts. Administrative Complaint Page 2 of 7 DOH v. Bernard Torres, L.M.T. DOH Case No.; 2019-11291 Count One 12. Petitioner re-alleges and incorporates paragraphs one through eleven, as if fully set forth herein. 13. Section 480.046(1)(p), Florida Statutes (2018), subjects a massage therapist to discipline for violating any provision of Chapters 480 or 456, Florida Statutes, or any rules adopted pursuant thereto. 14. Section 480.0485, Florida Statutes (2018), prohibits sexual misconduct in the practice of massage therapy and defines sexual misconduct as a: violation of the massage therapist-patient relationship through which the massage therapist uses that relationship to induce or attempt to induce the patient to engagé, 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. 15. Rule 64B7-26.010, Florida Administrative Code (2018), provides in pertinent part: (1) Sexual activity by any person or persons in any massage establishment is absolutely prohibited; ... (3) No licensed massage therapist shall use the therapist- client relationship to engage in sexual activity with any client; and (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 Administrative Complaint oe — Page 3 of 7 DOH v. Bernard Torres, L.M.T, ° , ° . - DOH Case No.: 2019-11291 person or both or which is likely to cause such stimulation... 16. Respondent used the massage therapist-patient relationship to induce or attempt to induce Patient D.R. to engage, or to engage or attempt to engage Patient DR. in sexual activity outside the scope of generally accepted examination or treatment by rubbing between Patient D.R.’s breasts and/or touching her breasts several times while massaging her torso. 17. Based on the foregoing, Respondent violated Section 480.046(1)(p), Florida Statutes (2018), by violating Section 480.0485, Florida Statutes (2018), and/or Rule 64B7-26.010, Florida Administrative Code (2018). | } Count Two 18. Petitioner realleges and incorporates paragraphs one through eleven, as if fully set forth herein. : 19. Section 480, 046(1)(p), Florida Statutes (2018), subjects a massage therapist to discipline for violating any provision of Chapters 480 or 456, Florida Statutes, or any rules adopted pursuant thereto, 20. Rule 64B7-30.001(5), Florida Administrative Code (2018) lists failure to appropriately drape a client as misconduct and negligence in the practice of massage therapy. Rule 64B7-30.001(5), Florida Administrative Administrative Complaint. ~ oe ; ne Page 4 of 7 DOH v. Bernard Torres, L.M.T. DOH Case No.: 2019-11291 Code (2018), provides in pertinent part: “[a]ppropriate draping of a client shall include draping of the buttocks and genitalia of all clients, and breasts of female clients, unless the client gives specific informed consent to be undraped.” 21. Respondent exposed Patient D.R.’s breasts without her specific informed consent. 22. Based on the foregoing, Respondent violated Section 480.046(1)(p), Florida Statutes (2018), by violating Rule 64B7-30.001(5), Florida Administrative Code (2018). WHEREFORE, Petitioner respectfully requests that the Board enter an order imposing one or more of the following penalties: “permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. [signature block on next page] Administrative Complaint oe Page 5 of 7 DOH v. Bernard Torres, L.M.T. DOH Case No.: 2019-11291 . SIGNED this _4/°"_ day of Haw 7, 2019.. Gabriel A. Girado Assistant General Counsel Fla. Bar No. 120467 Florida Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin #C65 Tallahassee, FL 32399-3265 Telephone: (850) 558-9815 Facsimile: (850) 245-4683 FILED DEPARTMENT OF HEALTH A . . DEPUTY CLERK Email: Gabriel.girado@flhealth.gov CLERK: Angel Senders PATE: MAY 3-1 2019 PCP: May 31, 2019 PCP Members: Havard and Wakeman Administrative Complaint Page 6 of 7 DOH v. Bernard Torres, L.M.T, DOH Case No.: 2019-11291 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule 28- 106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule 28-106. 2015(5), Florida Administrative Code. Mediation under Section 120.573, Florida Statutes, is not available to resolve this Administrative Complaint. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition any other discipline imposed. Administrative Complaint : : eR Page 7 of 7 DOH v. Bernard Torres, L.M.T. . DOH Case No.; 2019-11291

Docket for Case No: 20-002982PL