vs.
MICHAEL E. MALOY, L.M.T.,
Respondent.
Case No. 20-5210PL
E. Gary Early, an Administrative Law Judge assigned by the Division of Administrative Hearings (“DOAH”).
Kristen M. Summers, Esquire Prosecution Services Unit Department of Health
For Respondent: T. A. Delegal, III, Esquire
James C. Poindexter, Esquire. Delegal Law Offices, P.A.
The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of section 480.0485, Florida Statutes, and, if so, the appropriate sanction.
On November 2, 2020, Petitioner, Department of Health (“Department”), issued an Administrative Complaint against Respondent, Michael E. Maloy, a licensed massage therapist. The complaint charged Respondent with sexual misconduct in the practice of massage therapy, in violation of section 480.0485.
On November 11, 2020, Respondent, through counsel, served an Election of Rights and an Answer to Administrative Complaint in which he disputed material facts alleged in the Administrative Complaint and requested an administrative hearing.
On December 1, 2020, the petition was referred to DOAH. The final hearing was scheduled for January 27, 2021.
On January 22, 2021, the parties filed a Joint Prehearing Stipulation (“JPS”). The JPS contained eight stipulations of fact, and nine stipulations of law, each of which are adopted and incorporated herein. The JPS also identified disputed issues of fact and law remaining for disposition.
The final hearing was convened on January 27, 2021, as scheduled, and was completed on that date.
At hearing, the parties jointly offered the testimony of Respondent and his client, A.M. (“A.M.”). Dr. Sarah Ferrer-Bruker was identified as a fact witness to appear on behalf of the Department. She was unable to attend for reasons, as explained by counsel for the Department, related to patient obligations. After an ore tenus motion, and discussion on the record as to the possibility of holding the record open to reschedule Dr. Ferrer-Bruker, it was ultimately agreed to have her deposition accepted in lieu of live
testimony pursuant to Florida Rule of Civil Procedure 1.330(a)(3)(E). Joint Exhibits 1 through 9 and 11 were received in evidence.
The one-volume final hearing Transcript was filed on February 24, 2021. Both parties timely filed Proposed Recommended Orders that were considered in preparation of this Recommended Order.
This proceeding is governed by the law in effect at the time of the commission of the acts alleged to warrant discipline. See McCloskey v.
Dep’t of Fin. Servs., 115 So. 3d 441 (Fla. 5th DCA 2013). Thus, references to statutes are to Florida Statutes (2020), unless otherwise noted.
Based on the stipulations of the parties, evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
Petitioner, Department of Health, Board of Massage Therapy (Petitioner or Board), is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43, and chapters 456 and 480, Florida Statutes.
Stipulated Facts
At all times material to this proceeding, Respondent was a licensed massage therapist in the state of Florida, holding license number MA48984.
Respondent’s current address of record is 4069 Old Mill Cove Trail West, Jacksonville, Florida 32277.
At all times material to this proceeding, Respondent worked for Massage Envy, a massage establishment in Jacksonville, Florida.
On or about August 28, 2020, Respondent performed a massage on A.M., a 32-year-old female.
In preparation for her massage, A.M. undressed, laid down on a massage table, and covered herself with a draping.
In the course of the massage, Respondent uncovered A.M.'s right leg and massaged her quadricep.
Sexual misconduct is outside the scope of generally accepted practices of massage therapy.
No massage therapist may engage in sexual misconduct with his or her patient.
Facts Adduced at Hearing
Respondent was educated in massage therapy, and has practiced massage therapy for roughly 13 years. As part of his education, he received education in ethics and professional conduct. He has also received continuing education as part of his Florida licensure. His education included instruction that sexual misconduct is not allowed.
Respondent worked for Massage Envy at two of its Jacksonville branches, though he was released after the report of the August 28, 2020, incident. He also works as a massage therapist for the Jacksonville Jaguars professional football team.
Respondent indicated that if a client raises a sexual issue during a massage, a massage therapist is instructed to give the client every opportunity to correct their pattern of behavior and/or try to divert the behavior back to the massage. If the client persists, the therapist may ask the client to stop or leave the room.
Respondent testified that prior to August 28, 2020, he had not been accused of misconduct of any form in connection with his practice of massage therapy, nor had a client objected about his touching them inappropriately during a massage. There was no evidence to the contrary.
A.M. was a regular client of Respondent on a generally month-to- month basis, having become a member at Massage Envy in July 2015. She
received massages on a monthly basis until services were suspended for an undisclosed period due to Covid-19. The Massage Envy facility had reopened at some time prior to August 28, 2020.
Respondent was A.M.’s primary massage therapist, though she was treated by another massage therapist, Ross, when Respondent was unavailable or when A.M. saw him by choice to provide specialty service. Ross was regarded as being particularly skilled in treating the neck area.
A.M. and Respondent had no interaction, professional, social, or otherwise, outside of Massage Envy.
A.M. and Respondent would talk during treatment. The subject matter previously varied, and A.M. may have occasionally strayed into areas that could be perceived as inappropriate, but there was nothing to cause concern on Respondent’s part that would have resulted in termination of a session.
A.M. typically kept her eyes closed during treatment, occasionally falling asleep. The massages generally had their desired effect of relaxation such that A.M. was often in a “massage daze” afterwards.
At some time prior to the events at issue, Respondent wrote his telephone number on the back of a Massage Envy tip envelope and gave it to
A.M. The reason for Respondent providing his number to A.M. was, as is the case with many of the facts of this case, disputed. A.M. testified that due to the Covid-19 outbreak, Massage Envy had closed. She stated that Respondent told her that he had been seeing clients at their homes, and gave her his number in case she wanted him to give her a massage at her home.
Respondent, on the other hand, testified that he had a favorite pair of “massage pants” that were in need of repair, and that he had given them to A.M., who is a seamstress, to have her take a look at them. Respondent stated that he gave A.M. his telephone number so that she could call him to let him know if they were worth trying to fix. A.M. acknowledged that at some point during her professional relationship with Respondent, they discussed whether she could repair the pants. However, A.M. denied that he
had provided her with his number when he gave her the pants, stating that it made her uncomfortable that she was not able to contact him regarding the work that it would entail.
The events of August 28, 2020, could not be more contested. This is not a case of nuanced behavior. Sexual activity occurred, or it did not occur. The testimony of each is summarized as follows:1
A.M.’s Testimony
A.M. testified that she appeared at Massage Envy at 9:00 a.m. on August 28, 2020, for a scheduled 90-minute massage. She undressed and laid face down on the massage table, covered by a sheet. There was no evidence as to whether A.M. completely disrobing was her routine, but neither A.M. nor Respondent indicated it to be outside of the norm.
The massages with Respondent were “mostly the same order of operation,” but on the 28th, since A.M. was sore from a workout, she asked that Respondent not do a deep massage. Respondent massaged A.M.’s back, legs, and arms without incident.
During the first part of the massage, A.M. engaged in conversation with Respondent. She did not believe the discussions were sexual in nature. She told Respondent about her new fitness routine and the workouts involved. Respondent noted that that he had noticed, and that she looked really good, to which A.M. replied “oh, thanks.”
In the second conversation, A.M. asked Respondent to weigh in with his thoughts about a situation in which a client asked if he should take A.M. to dinner after the completion of a job. A.M. stated that she told the client “look, I'm down to go to dinner with you, but I have to let you know that I do have a partner and he will know about this.” She stated that the prospective
1 The recitation of testimony that follows is graphic and unfiltered. In a case dependent entirely on the testimony of the only two witnesses to the event, it seems necessary to consider, in full, the testimony of the only two witnesses to the event.
client said “Oh, no you got me all wrong,” decided not to go through with the work, and never spoke with her again. A.M. was curious as to Respondent’s speculation as to the client’s intentions. She also indicated that although she was in a relationship, she was open to dating other men, as long as her partner knew about it.
Roughly halfway through the massage, A.M. turned over so Respondent could massage the front of her body, as was normal. Respondent began to massage the quad at the front of A.M.’s upper right leg. A.M. testified that, when Respondent started massaging her quad, instead of downward strokes along the quad towards her feet, he started to massage upward and around the top of her quad behind her upper thigh until he was touching her buttocks and her vulva.
As Respondent began to touch A.M., she clenched her buttocks, and asked, “Is this a thing that's happening?” Respondent started to finger A.M.’s vagina and asked, “Is this okay?” to which A.M. replied “yes, that's fine.”
Respondent continued to insert his finger into A.M.’s vagina. She remembered Respondent saying, “Damn, it's so wet and tight,” to which she replied “And smooth.” A.M. testified that as Respondent fingered her vagina with one hand, he had the other on her clitoris, but would intermittently massage the nipple and areola of her right breast.
A.M. testified that Respondent again remarked about how tight her vagina was, and that she responded, “My asshole is, too.”
A.M. later testified that she was shocked that the event was
happening, but that “when it happened I tried to enjoy it,” and put her hands over her head and moaned.
A.M. testified that she did not run or resist because “I didn't know what would happen if I did. Like, I felt very vulnerable, and, I thought, you know, like, I'll just lay here and let it finish.” Although Respondent had never given A.M. reason to believe he was violent, she testified that “he is still tall
and bigger than me and muscular and I was naked. I'm 4' 11. I was very vulnerable.”
At no point during the incident did A.M. tell Respondent to stop. Rather, A.M. recounted that after a while, she ultimately said, “look, I'm not going to cum from this, can you please just make sure my muscles are even,” to which Respondent stated, “I guess I have to go back to doing my job.” She remembered him continuing to finger her vagina for a bit longer before he
stopped and said, “I’m sorry. I'm sorry,” to which she “thanked him” and said, “Don't be sorry. I guess people just like touching me.” As Respondent concluded, A.M. asked Respondent if he had a crush on her, and told him she “would try to be better prepared the next time.”
A.M. testified that Respondent then proceeded to massage her low back from underneath. She thought he may have been wiping his hands on her. He then moved to massage her shoulders, at which time A.M. said, “oh, great, I'm going to smell like pussy juice now.” She testified that Respondent then said, “you're going have guys hawking all over you from all the
pheromones.”
A.M. testified that as Respondent concluded, she said a few more things because it seemed awkward, and remembered Respondent saying “I wanted to do that for a long time, but, you know, had to keep it professional.”
A.M. testified that after the sexual act was concluded, she told Respondent that “I actually had a sex dream about you once, but it was no big deal.” He asked “was it one of those when you felt like you were really there?” A.M. said, “yeah,” and Respondent said, “That's awesome.” She also indicated that she asked “is this why girls at the front desk are like, oh, you were with Mike, he's so amazing,” to which he just kind of laughed. A.M. also stated to Respondent “I've always honestly come here for a massage,” to
which he replied “I think my clients come back to me because I use a lot of pressure.”
A.M. also testified that, again after the sexual act was concluded, she told Respondent “that one time while I was receiving a massage from Ross that he had his hands on my neck and I just wondered to myself what it would be like if he choked me.” She recounted that Respondent replied that “[w]e often wonder what our clients are thinking.”
Respondent finished the massage and left the room, closing the door behind him as was normal. A.M. got dressed and headed for the front desk. She noticed a clock that read 10:59 a.m., well beyond the scheduled 90- minute massage.
A.M. testified that she saw Respondent in the hallway, and said “Bye. See you next time.” She testified that she was in a “massage daze” as she walked to the front desk to check out. She spoke with the manager, telling her that she felt very relaxed. She paid for the massage, and left a tip for Respondent. She did not say anything else to anyone about the massage before she left the premises.
As to the reason for not alerting anyone at Massage Envy to the
incident, A.M. testified that “I was confused. You know, like, obviously, I said I wasn't injured. So, maybe, you know, I thought to myself, oh, maybe that's a thing that happened and I can get over it.”
Respondent’s Testimony
A.M. had a 9:00 a.m. appointment with Respondent on August 28, 2020. A.M. went to the massage room alone, undressed, and laid face down on the massage table. She was draped with a sheet.
Respondent testified that the appointment was normal. He greeted A.M., asked if there was anything that needed particular attention, and tried to get an understanding of what she was looking for in the massage that day.
A.M. was sore from exercise, and did not want a deep massage, as she typically received. She did request a full body massage.
From what he could recall, Respondent performed a “normal service,” with no specific out of the ordinary requests. Respondent has an established routine when performing massage, working around the body in a clockwise pattern to ensure that he does not skip a body part or miss something along the way. Patients typically start lying on their stomachs and, about halfway through a session, turn over. The general pattern is the same on both sides. That has been his practice since therapy school.
Respondent testified that A.M.’s massage as she was positioned on her stomach was uneventful, and conversation routine.
About midway through the massage, A.M. turned over, which was the normal course for a full body massage. Respondent testified that “the conversation quickly changed and it went into one of that was off the topic of massage of what we had been talking about.” He recounted three topics of conversation during the course of A.M.’s massage that started to get “off track.”
First was the discussion, also a topic of A.M.’s testimony, regarding a client she had done some work for. Respondent stated that A.M. wanted his advice because “you're a guy, you might understand why he reacted this
way.” Purportedly, to Respondent’s recollection, after A.M. completed the work, the client asked A.M. to dinner “and other things.” Respondent indicated that A.M. told the client “yeah, I'm cool with that, but I have to ask my boyfriend,” which caused the client to be taken aback. A.M. was curious about the client’s reaction, and wanted Respondent’s opinion as to his reaction. Respondent testified that “I guess it's because he wasn't expecting the response about your boyfriend.” Respondent testified that the question was off the topic of massage, and “a little strange and a little weird.” However, it was not to the point of what he perceived as “crossing that line.” Respondent testified that he redirected the conversation, with mixed success, back to what was needed in terms of the massage, but did not report the conversation to any other employee or manager at Massage Envy.
Respondent testified that at another point in the massage, A.M. advised him that she had “a wet dream” in which Respondent performed oral sex on her. Respondent testified that he again tried to redirect the conversation to one of massage. A.M. had been a client quite a long time, and he was giving her every opportunity to continue to be a client.
Finally, Respondent testified that when he started to work on A.M.’s neck, she advised him that when she was worked on by Ross, a massage therapist known for his neck work, she wondered what it would be like for him to choke her. Respondent perceived the choking to be for sexual gratification. As “shocking” as he perceived the comment to be, Respondent testified that “I tried to redirect it towards massage,” saying “Ross is good at neck work and a lot of his clients see him for neck work.” He was close to the end of the massage, tried to quickly finish the massage and said, “okay, hey, that's it, we're done.”
Respondent testified that as he went to walk out of the room, A.M. noted that he forgot to work her pectoralis muscles on the upper part of her chest. Although he was already running over the scheduled time, he came back, massaged both sides for a few minutes, and left the room. It is Respondent’s normal custom to leave the room after a massage so the client can dress in privacy.
Respondent testified that as A.M. left, “she said bye to me, and she goes I'll see you later.” She left him a “generous” tip -- over $30.
Respondent testified that he found the nature of the conversations
with A.M. to be “shocking.” However, he did not mention them to either his coworkers or management at Massage Envy. He testified that, in retrospect, he should have left the room and gone directly to management. He indicated that clients discussing topics that may be inappropriate -- politics, religion, things of a sexual nature -- are not uncommon. He tries to act professional and go about his business. He stated that, as he goes from client to client to
client throughout the day, “[y]ou never think it's going to go to something like this or this point.”
Respondent denied touching on or near A.M.’s vagina. Respondent denied touching A.M.’s breasts, though he did massage her pectoralis muscles along the collarbone and the upper path of the muscle tissue. Respondent denied that he experienced any type of sexual arousal during A.M.’s massage.
Post-Incident Events - A.M.
On August 31, 2020, while A.M. was masturbating, the events of August 28, 2020, came back to her. She came to the conclusion that what happened was wrong. Up until that point, A.M. had not told any other person about the alleged incident.
The next day, September 1, 2020, A.M. went to Massage Envy to cancel her membership. She did not tell the representative about her allegations regarding Respondent.
Massage Envy did not permit A.M. to cancel her membership that day. However, they allowed her to freeze her account. She could then cancel within the time needed to cancel without having to pay for another month.2
That same day, after her effort to cancel her membership proved unsuccessful, A.M. sent two text messages to Respondent. In her first, sent at 12:59 p.m., she said “Hey Mike, it’s A.M.,” to which Respondent replied at
2:12 p.m. “How are you?” A.M. then responded at 4:43 p.m.:
I’m not okay I’m sad and angry over what happened Friday. I feel taken advantage of regardless of anything I said. None of what I said was an invitation to do that to me. I was in a very relaxed state of being. I’m disappointed that I built trust with you and that I paid you to do this to me. This was something I routinely made part of my fitness
2 Despite having frozen her membership, her next month’s dues were still withdrawn from her account. Massage Envy was apologetic and cancelled the membership. A.M. did not ask for a refund, and it is unclear, and ultimately irrelevant, whether she received one.
and wellness the past several years. I had to cancel my membership today. I really hope you don’t do this with anyone else.
A.M. then blocked Respondent from her contacts, though Respondent indicated that he did not try to reply.
On September 2, 2020, A.M. discussed the incident with her friend, Dr. Ferrer-Bruker. The initial contact between A.M. and Dr. Ferrer-Bruker occurred that afternoon, when A.M. asked to discuss something “heavy.” They spoke around 6:00 or 7:00 p.m. Dr. Ferrer-Bruker recalled that A.M. told her that she received a massage from her regular massage therapist, and that he “fingered her,” and that she regretted that she did not do something different as a reaction at the time. Dr. Ferrer-Bruker tried to comfort A.M., and recommended that she go to the police, a discussion confirmed by A.M.
Dr. Ferrer-Bruker remembered little else of the conversation.
After having spoken with Dr. Ferrer-Bruker, A.M. filed a police report with the Jacksonville Sheriff's Office (“JSO”) later in the evening on September 2, 2020. At 8:53 p.m., A.M. texted Dr. Ferrer-Bruker that “[t]hey are sending a police officer to me now.”
The JSO conducted an investigation of the August 28 incident. A.M. testified that she recalled telling the police that she was shocked and terrified and scared at the time the incident was going on. However, she testified that Respondent had never previously given her reason to believe he was violent, nor had he made her feel threatened in a physical manner.
Between the time A.M. made the police report and the date she reported the incident to Massage Envy, she stated that she discussed the incident with other persons. None of those persons testified and there is no other evidence of any such discussions.
On September 14, 2020, A.M. reported the incident to Massage Envy. She advised the manager, Katherine Petrino, that she had a massage with Respondent on August 28, 2020. She reported that the massage started as
normal, but as Respondent starting to massage her quad, he instead fingered her vagina. Later that day, A.M. emailed Ms. Petrino with an account of the incident that, despite her statement that her “[m]emory is foggy on the sequence of what else was done and said,” differed little, if at all, from her testimony.
A.M. was then contacted by Redirect, a third-party investigator for Massage Envy. She restated the events to the representative.
Post-Incident Events - Respondent
About two weeks after August 28, 2020, Ms. Petrino, the clinic manager for Massage Envy - Harbor Village, advised Respondent that there was a complaint against him for inappropriate touching. She did not give details. Respondent was placed on suspension until further notice.
A couple of days later, Respondent was contacted by the third-party investigator, and gave a statement. He testified that he told the investigator how the massage went, what body parts were worked on, and described the conversation. He advised of having received both of A.M.’s text messages on September 1, 2020, and that he did not respond to her second, lengthier message. He indicated that his discussion with the investigator was consistent with his statements at the hearing and otherwise.
Social Media
Starting around December 4, 2020, A.M. posted her thoughts regarding the incident on Instagram. The posts, with a few exceptions, were not dated. The text of the first post was as follows:
TW: Sexual Assault
I keep thinking about how the scariest thing I feel like I did this year was pick up the phone to report my abuser. I felt the most shame because I didn't think anyone would believe me because a) I'd known
them so long b) they were well-loved at the place and
c) I'm a sex pot so maybe it would just be “on-brand” to have “let it happen and regret it” (second quotes are actual words from a JSO officer in 2020). Please, the “brand” is pleasure. The brand is consent. The brand is joy, not confusion and fear and freezing and trying to just say anything to get through a situation. The brand is context and that it never should have happened in the first place.
How sad is it that I just said the scariest thing was reporting my abuser and not the fact that it happened at all?
Life is not happy and positive as a default. I've never been fake about anything, just learned that people love to see joy on here.
Anyway, I am very grateful for this escape and the support I have gotten from my beautiful partner, friends, and family. Most of all grateful for myself because I'm mf-ing that bitch.
A second post, also undated, provides that: TW: Sexual Assault
I was gonna blame a man for molesting me and stressing me the fuck out and sending me into uncontrollable depression for setting me behind on all of my work
but the reality is I'm actually just celebrating the fact that I've made it, I pushed through, and I am THAT bitch who was able to crush three custom wedding gowns in a week so 🤷♀️🥰🙏😅 Try not to fuck with me THANKS!!! 😂
Unlike the JSO investigation, the question here is not one of consent. If the acts alleged occurred between A.M. and Respondent, acting in the course of his licensed profession, they constitute a violation of section 480.0485, whether they were engaged in between two consenting adults, or
whether they were forced upon the client entirely without consent. In short, if the acts occurred, they violated the massage therapy practice act.
The testimony of Dr. Ferrer-Bruker, who was not a witness to any of the alleged acts of Respondent, played no direct role in the determination of the outcome in this matter.
A.M.’s testimony was forceful and emotional. Despite her self- perceptions and her “brand,” she was precise about the facts, and adamant as to the role of consent in a sexual encounter.
Respondent’s testimony was equally forceful, but more reserved in delivery. He testified that he loved his family and his job, that he had built a reputation and a career over many years, and performed at a high level. He stated that he would not jeopardize his work, his reputation, and his clients’ trust -- in short that he “would never do that, to sit there and throw it away on something like this.”
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 480.046(4), 120.569, and 120.57(1), Fla. Stat.
Petitioner has authority to investigate and file administrative complaints charging violations of the laws governing licensed massage therapists. § 456.073, Fla. Stat.
Standards
Section 480.046(1)(p) provides that:
The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
(p) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
Respondent is charged with engaging in sexual misconduct in the practice of massage therapy, in violation of section 480.0485, which provides:
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.
Florida Administrative Code Rule 64B7-26.010, entitled “Sexual Activity Prohibited,” provides, in pertinent part, that:
Sexual activity by any person or persons in any massage establishment is absolutely prohibited.
* * *
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.
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. ...
Burden and Standard of Proof
The Department bears the burden of proving the specific allegations that support the charges alleged in the Administrative Complaint by clear and convincing evidence. Dep’t of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Fox v. Dep't of Health, 994 So. 2d 416 (Fla. 1st DCA 2008); Pou v. Dep’t of Ins. & Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).
Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). The clear and convincing evidence level of proof:
[E]ntails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
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 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.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). “Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is
ambiguous.” Westinghouse Electric Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
A proceeding to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla. 1973). The provisions of law upon which this disciplinary action has been brought are penal in nature, and must be strictly construed, with any ambiguity construed against Petitioner. Penal statutes must be construed in terms of their literal meaning and words used by the Legislature may not be expanded to broaden the application of such statutes. Elmariah v. Dep’t of Prof’l Reg., Bd. of Med., 574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also Cadet v. Dep’t of Health, 255 So. 3d 386, 388 (Fla. 4th DCA 2018).
A hearing involving disputed issues of material fact under section 120.57(1) is a de novo hearing, designed to formulate, rather than review, agency action. § 120.57(1)(k), Fla. Stat.; Moore v. Dep’t of HRS, 596 So. 2d 759, 761 (Fla. 1st DCA 1992).
The allegations of fact set forth in the Administrative Complaint are the grounds upon which this proceeding is predicated. Trevisani v. Dep’t of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v. Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the scope of this proceeding is properly restricted to those matters as framed by Petitioner.
M.H. v. Dep’t of Child. & Fam. Servs., 977 So. 2d 755, 763 (Fla. 2d DCA 2008).
Analysis
The undersigned has no hesitation in concluding that the acts alleged, if proven, constituted both sexual misconduct under section 480.0485, and conduct outside of the scope of massage as defined in chapter 480.
During the hearing, counsel for Respondent suggested that a violation
based on “he said/she said” cannot be sustained under the clear and
convincing evidence standard. That is not accurate. Section 120.80(4), entitled Regulation of Professions, provides, in pertinent part, that:
Notwithstanding s. 120.569(2)(g), in a proceeding against a licensed professional or in a proceeding for licensure of an applicant for professional licensure which involves allegations of sexual misconduct:
(a) The testimony of the victim of the sexual misconduct need not be corroborated.
This case comes down entirely as one driven by the burden of proof. Thus, there must be something to tilt the balance.
A.M.’s testimony was believable. There was nothing in her comportment at the hearing to suggest that she was making up the events as she described them. Her description was consistent from her first report to the JSO and Massage Envy to her testimony at the hearing. The facts to which A.M. testified were distinctly remembered; the testimony was precise and explicit; and she was lacking in confusion as to the facts in issue.
Respondent’s testimony, despite lacking the depth of emotion exhibited by A.M., was just as believable. He did not hesitate in his description of the events. He recounted his version of the events without inconsistency. The facts to which Respondent testified were distinctly remembered; the testimony was precise and explicit; and he was lacking in confusion as to the facts in issue.
Some might posit that Respondent has an obvious interest in retaining his license and his livelihood. That interest is not sufficient to diminish the weight of his testimony. If that were the case, then every administrative complaint would start with an inference that the charged licensee had a predisposition to lie, which would impermissibly lessen the effect of the legislatively established clear and convincing burden of proof.
There was no physical or extrinsic evidence of the alleged sexual misconduct. There was no video recording, no fluid or semen collected. A.M.’s demeanor as she exited the Massage Envy facility was not such as to alert
the staff that anything out of the ordinary had occurred. Rather, she departed in the normal course, saying “goodbye, see you next time” to Respondent, remarking to the manager, outside the presence of Respondent, about how relaxed she was, paying her bill, and leaving a tip.
There was not sufficient evidence to cause the undersigned to discount or disbelieve A.M. She could not have misperceived the acts alleged as something else. They either occurred, or they did not.
There was not sufficient evidence to cause the undersigned to discount or disbelieve Respondent. He could not have innocently or accidentally performed the acts alleged without knowing. They either occurred, or they did not.
The distress displayed by A.M. does suggest that an event occurred to cause A.M. to react emotionally as she recounted the events. However, emotion alone without something else -- anything else -- would penalize the emotionally reserved. The law simply does not allow the substantial burden established by the legislature to be met by emotion or lack thereof. There must be something -- a contemporaneous act on the part of the client, an inconsistent or hesitant statement, a demeanor indicative of evasion on the part of the practitioner -- to establish, by clear and convincing evidence, that a violation occurred. Some act or event sufficient to tip the balance, and meet that heightened quantum of proof, does not exist here.
A.M.’s demeanor while at Massage Envy, and the four-day delay in discussing the incident with a friend and, at the friend’s prodding, reporting it to the police, leaves “the sum total of the evidence” insufficient “to convince the trier of fact without hesitancy.” Though A.M. did not make contemporaneous complaints about Respondent's alleged misconduct, the manner in which she ultimately made them some days later, and the consistency with which she held to her story, tended to add some weight to her testimony. Were this a case to be decided by the preponderance of the evidence standard, i.e., “50 percent plus one,” the consistency in A.M.’s
accounts of the incident might well have been sufficient to provide that extra scintilla of weight to warrant a different outcome. However, this is not a preponderance of the evidence case. Furthermore, Respondent held to his story with equal consistency and conviction, thus leveling the scale.
Neither A.M’s nor Respondent’s testimony was inherently incredible; and conversely, neither one’s testimony was inherently more credible than the other’s. A.M.’s description of sexual misconduct cannot be rejected out of hand; it is obviously not outside the bounds of human interaction. Upon hearing her story, one does not think, “That could not possibly have
happened.” To the contrary, A.M.’s testimony is all too believable. And yet, Respondent’s testimony is also believable. He did not present with some contrived description of an implausible “accident” that tests credulity, but rather said exactly what one would expect a person falsely accused of sexual misconduct to say: “I did not do it.” He could say little more if, in fact, he was innocent. There is no way for Respondent to affirmatively disprove the particular allegations that A.M. made. See In re: Rudy Maloy, Case No. 02- 1231EC, R.O. at ¶ 44 (Fla. DOAH Apr. 25, 2003; Fla. COE Oct. 21, 2003).
This is not a case in which Respondent has been deemed to be more worthy of belief than A.M. Rather, absent some extrinsic evidence, the conflicting testimony presents a dilemma, the resolution of which, if one must choose between competing narratives, depends on who is deemed to be the more credible witness. Because the Department bears the burden of proving its case by clear and convincing evidence, A.M., as the Department’s sole witness, must be judged not just credible -- which she was -- but considerably more credible than Respondent to support the violation. The reason for this heightened standard of proof in professional licensing cases has been determined by the legislature to be appropriate when one’s livelihood is at stake. Latham v. Fla. Comm’n on Ethics, 694 So. 2d 83, 86 (Fla. 1st DCA 1997).
Having closely observed both A.M. and Respondent on the witness stand, the undersigned is unable to state, based on their respective demeanors, who was telling the truth -- and who was not. Both appeared to be sincere in recounting the events of August 28, 2020. Neither displayed any perceptible indicia of prevarication.
After carefully weighing all of the evidence, the undersigned is not so convinced as to be able to conclude, with confidence, that either version of the events of August 28, 2020, advanced at hearing, so outweighed the other to result in a firm belief or conviction, without hesitancy, as to the truth of the allegations upon which the Administrative Complaint is brought.
Given the nature of the alleged incident, the undersigned takes no satisfaction in recommending against the Department. Nonetheless, given the particular facts of this case, the undersigned is unable to find that Petitioner proved, by the requisite quantum of proof, that Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of sections 480.046(1)(p) and 480.0485, or rule 64B7-26.010.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy, enter a final order dismissing the Administrative Complaint against Respondent, Michael E. Maloy, L.M.T.
DONE AND ENTERED this 16th day of March, 2021, in Tallahassee, Leon County, Florida.
Division of Administrative Hearings this 16th day of March, 2021.
T. A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202
James C. Poindexter, Esquire Delegal Law Offices, P.A.
Kristen M. Summers, Esquire Prosecution Services Unit Department of Health
Louise St. Laurent, General Counsel Department of Health
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.
