Judges: K. N. AYERS
Agency: Department of Health
Latest Update: Apr. 07, 1977
Summary: Respondent worked as masseur at place of prostitution, but had no part in the allegedly immoral acts, despite conviction. Recommend dismissal.
76-0912.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In re: The revocation or suspension ) of the license of L. JACK )
BIBEAULT, Massage License ) CASE NO. 76-912 No. 2218 )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on June 18, 1976 at Miami, Florida.
APPEARANCES
For Petitioner: John Miller, Esquire
Board of Suite 200, Barnett Bank Building Massage Tallahassee, Florida 32304
For Respondent: L. Jack Bibeault, representing himself
Seacoast Towers, West Health Club 5600 Collins Avenue
Miami Beach, Florida
By Administrative Complaint filed April 28, 1976, the Florida State Board of Massage seeks to revoke, annul, withdraw or suspend the license of Lionel C. Bibeault, a/k/a L. "Jack" Bibeault, on allegations that he was found guilty of procuring customers for prostitution purposes while under the guise of operating a massage parlor, and of allowing an unlicensed person to be employed as a masseuse knowing that she was not licensed by the Board of Massage. By the above acts the Respondent was charged with violating 480.11(1)(a)(b)(f) and (g), F.S.
Two witnesses, the Respondent, and the attorney who represented Respondent at his trial in the County Court for Dade County, testified and one exhibit was admitted into evidence. At the conclusion of the hearing the Board withdrew charges of violating 480.11(1)(a) and (b), F. S.
FINDINGS OF FACT
Respondent is licensed by the Florida State Board of Massage and holds current license No. 2218 by said Board.
On July 8, 1975 Respondent was arrested by the Dade County vice squad during a raid on the 441 Health Studio and charged with procuring for prostitution and operating a house of prostitution. He was convicted of this misdemeanor after a plea of not guilty at the subsequent trial and sentenced to pay a fine of $150.00.
Respondent was hired by the 441 Health Studio part time to give massages to customers so requesting. The 441 Health Studio did not hold itself
out as a massage parlor although it was so characterized by the vice squad and news media when raided and charged with prostitution or other immoral offenses.
Respondent retired from full time employment as a masseur in 1962 and is drawing Social Security retirement. At the time of his arrest he was supplementing his income by performing up to four or five massages per week. He received 50 percent of the $20.00 fee charged by the 441 Health Studio for each massage he gave.
Respondent was not involved with the management of the 441 Health Studio and had no control over the employees of the studio. Respondent's massage license was the only one posted at the 441 Health Studio.
The arrest report alleged that on July 8, 1975 a vice squad officer came to the studio and asked Respondent for a massage then asked him for a girl. After going with one Linda the officer arrested the girl and Respondent and the aforementioned convictions followed.
CONCLUSIONS OF LAW
With respect to the charges remaining against Respondent at the conclusion of the trial, 480.11, F.S., provides in pertinent part:
"(1) The certificate of registration and license of a masseur . . . may be revoked, suspended
or annulled upon any one or more of the following grounds:
* * *
That the registrant is grossly ignorant, or guilty of willful negligence
in the practice of massage, or has been guilty of employing, allowing or permitting any unlicensed or unregistered person to perform any work constituting the practice of massage as defined in 480.01(1)(a) and (b), in his
or her massage establishment or massage school.
That the registrant is a person of immoral character."
Section 480.01, F.S., defines masseur to be:
. . . a person who practices, administers or teaches all or any one of the following subjects and methods of treatments, viz: who administers or teaches treatments with any mechanical or electrical apparatus for the pur- pose of body slenderizing, body reducing or body contouring.
Further, a person who has studied the underlying principles of anatomy and physiology, including the theory of massage . . . and administers or teaches all or any one or more
of the following subjects and methods of treat- ments, viz: Oil rubs, salt glows, hot or cold- packs, all kinds of baths Including steamrooms body massage either by hand or by any mechanical or electrical apparatus or device
applying such movements as stroking, friction, rolling, vibration, kneading . . ."
The primary contention of Petitioner is that by virtue of Respondent's license being posted at the 441 Health Studio, Respondent becomes responsible for all violations thereafter occurring on the premises. Even if this were so, which the statutory provisions above quoted do not support, there was no evidence: (1) That registrant was grossly ignorant; (2) That registrant was willfully negligent in the practice of massage; (3) That he employed any other person (for any reason); or (4) That he allowed or permitted an unlicensed person to practice massage.
The record is totally devoid of any evidence of the type services performed by Linda and certainly is insufficient to find that she performed any acts constituting the practice of massage as defined by 480.01, F.S., above quoted. Even if evidence had been presented that she solicited or committed prostitution, that hardly qualifies as the practice of massage as defined above.
The only evidence from which any inference of immoral character on the part of Respondent can be drawn is his testimony that he generally knew, that what is commonly referred to as immoral acts, were taking place in the back rooms of the 441 Health Studio. Knowledge of immoral acts does not equate itself with immorality or with being a person of immoral character.
Accordingly, the only evidence presented at this hearing relative to the offenses charged was that the Respondent was licensed and that he was arrested by the vice squad and convicted, along with Linda, of the offenses for which arrested.
Although the instant proceeding, in view of the potential punitive actions involved, is quasi-penal in nature, it is nevertheless a civil proceeding as distinguished from a criminal proceeding.
Rule 346, FLORIDA EVIDENCE, provides:
"B. A judgment of a conviction in a criminal case is not admissible in a civil action as evidence of any fact upon which a judgment of convictions is based."
Accordingly, in view of Respondent's denial of guilt of the offenses of which he acknowledged he was arrested and convicted, no evidence was presented to show Respondent violated the provisions of 480.11, F.S., above quoted. Absent such evidence there is no basis for disciplinary action against Respondent's license.
The position of Petitioner that a licensee should not be permitted to use his license so as to give an aura of respect ability to an immoral establishment is not without merit. However, the law does not so provide; and, under the facts as here presented, the establishment was not Respondent's massage establishment and/or massage school and the mere fact that his license was hanging on the wall did not make it so.
From the foregoing it is concluded that Respondent is not guilty of the charges as alleged. It is therefore,
RECOMMENDED that the charges contained in the Administrative Complaint filed against L. Jack Bibeault on April 28, 1976 be dismissed.
DONE and ENTERED this 29th day of June, 1976, in Tallahassee, Florida.
COPIES FURNISHED:
John Miller, Esquire
Suite 200 Barnett Bank Bldg. Tallahassee, Florida 32304
L. Jack Bibeault Seacoast Towers West Health Club 5600 Collins Avenue
Miami Beach, Florida
N. AYERS Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1976.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE BOARD OF MASSAGE
DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION
In re the revocation of the
license of L. Jack Bibeault CASE NO. 76-912 License No. 2218
/
FINAL ORDER
Pursuant to Notice, the State Board of considered the Recommended Order dated July 9, 1976 issued in the above-styled case on August 28, 1976 at its public meeting in Tallahassee, Florida. Having reviewed the complete record together with the Recommended Order, the Board of Massage presents the following Final Order.
The Board of Massage accepts the Hearing Officer's Statement of the Case, and Findings of Facts with additions, and rejects the Conclusions of Law. A copy of the Recommended Order is attached hereto and made a part hereof.
The record indicates and the Findings of Facts should further reflect that the Respondent admittedly "surmised" what the girls were doing in the back of the establishment. That a customer (in reality a vice squad officer) with an appointment with the only licensed masseur, Mr. Bibeault, asked Mr. Bibeault for a girl and Mr. Bibeault directed the customer to go with a woman unlicensed to practice massage to the rear room. As a result of the rear room activities the woman was charged and convicted of prostitution and giving a massage without a license. Mr. Bibeault, the codefendant in the same case, was found guilty of procuring for prostitution.
CONCLUSIONS OF LAW
The Respondent, as a licensed masseur, directed a customer seeking a massage to a female in the establishment as a masseur who he knew to be without a license to practice massage. Such conduct violates 480.11(1)(f), F.S., and is of itself cause for revocation. Furthermore, the Respondent knew, or had reason to know that immoral activities were taking place in the same establishment where his license to practice was displayed and his knowing participation in these illicit and immoral activities not only degrades the reputation of legitimate massage parlors, but constitutes grounds for revocation of his license under 480.11(1)(g), F.S. It is therefore,
ORDERED that the License of L. Jack Bibeault, Massage License No. 2218 be revoked.
DONE AND ORDERED this 9th day of October, 1976.
FLORIDA STATE BOARD OF MASSAGE
CHARLES F. CANFIELD, PRESIDENT
COPIES FURNISHED:
John Miller, Esquire
Suite 200 Barnett Bank Bldg.. Tallahassee, Florida 32304
Jack Bibeault Seacoast Towers West Health Club 5600 Collins Avenue
Miami Beach, Florida
Mr. Allan R. Smith, Jr. Coordinator
Florida State Board of Massage 2009 Apalachee Parkway
Suite 210
Tallahassee, Florida 32301
================================================================= DISTRICT COURT ORDER
=================================================================
LIONEL CONRAD BIBEAULT, IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
Petitioner, THIRD DISTRICT
JANUARY TERM, A.D. 1977
vs. MONDAY, MARCH 21, 1977
STATE OF FLORIDA, DIVISION OF CASE NO. 76-2046 PROFESSIONS, DEPARTMENT OF DOAH CASE NO. 76-912 PROFESSIONAL AND OCCUPATIONAL
REGULATIONS, FLORIDA STATE BOARD OF MASSAGE,
Respondent.
/
Counsel for petitioner having filed in this cause petition for rehearing, and same having been considered by the court which determined the cause, it is ordered that said petition be and it is hereby denied.
A True Copy ATTEST:
WILLIAM P. CARTER
Clerk District Court of Appeal, Third District
BY Chief Deputy Clerk
cc: Richard G. Taylor Robert L. Shevin John Miller, Jr. Betty Steffans
/plc
(THE FINAL ORDER IN THE ABOVE STYLED CAUSE HAS TODAY BEEN ISSUED AND MAILED TO BOARD Of MASSAGE)
Docket for Case No: 76-000912
Orders for Case No: 76-000912
| Issue Date |
Document |
Summary |
|
Oct. 09, 1976 |
Agency Final Order
|
|
|
Jun. 29, 1976 |
Recommended Order
|
Respondent worked as masseur at place of prostitution, but had no part in the allegedly immoral acts, despite conviction. Recommend dismissal.
|
