STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5434

)

BARBARA DIAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Charles F. Tunnicliff, Esquire, of Tallahassee, for Petitioner. No Appearance for Respondent.

In this case, the Petitioner, the Department of Professional Regulation, charged the Respondent, Barbara Dial, in a six count Administrative Complaint. Counts One, Two and Three charged essentially that the massage establishment in which the Respondent was working was not licensed; Counts Four, Five and Six charged essentially that the Respondent herself was not properly licensed to practice massage.

Final hearing was duly noticed and held in Tampa on March 16, 1988. The Respondent did not appear, and her contest of the Administrative Complaint is deemed to be waived. However, at final hearing, the Petitioner dropped Counts One, Two and Three and presented evidence on the remaining counts.

FINDINGS OF FACT

1. The Respondent, Barbara Dial, is a Florida licensed masseur, having been issued license number MA 0004161. Her license was inactive from January 1, 1983, through April 29, 1987.

   
   

2. During approximately the week ending December 15, 1985, while operating a licensed massage establishment she had acquired, the Respondent was "trading" massages with licensed masseurs operating at the establishment, i.e., she would give a massage in return for a massage, free of charge. Normally, a massage would cost approximately $35.

   
   

   CONCLUSIONS OF LAW

   
   

3. Section 480.047(1)(a), Florida Statutes (1987), makes it unlawful for any person to hold himself out as a masseur unless duly licensed as provided in Chapter 480. (Count Four.)

   
   

4. Rule 21L-28.001, Florida Administrative Code, equates practicing with an inactive license with a violation of Section 480.047(1)(a), Florida Statutes (1987).

5. Section 480.033(4), Florida Statutes (1987), defines a masseur as one who "administers massage for compensation." Giving a massage in return for a massage administered by a licensed masseur, free of charge, is the administration of massage for "compensation."

   
   

6. Section 480.046(1)(k), Florida Statutes (1987), authorizes discipline of a licensee who violates any provision of Chapter 480 or Board of Massage rules. (Count Five.)

   
   

7. Rule 21L-28.008(1), Florida Administrative Code, requires a licensee to conspicuously display a current license, or photocopy of it, at the location where she practices massage. (Count Six.)

   
   

8. Rule 21L-30.002(1)(a), Florida Administrative Code, recommends a $100 fine for the first month or part of a month during which a licensee practices massage with an inactive license. Rule 21L-30.002(2)(k), Florida Administrative Code, recommends a fine of $250 to $1000, probation, suspension or revocation for violation of Section 480.046(1)(k), Florida Statutes (1987).

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Massage: (1) hold the Respondent, Barbara Dial, guilty under Counts Four, Five and Six of the Administrative Code; (2) dismiss Counts One, Two and Three of the Administrative Complaint; and (3) impose on the Respondent a fine in the amount of $100.

RECOMMENDED this 12th day of April, 1988, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1988.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Barbara Dial

1012 Dassow Court

Alpharetta, Georgia 30201

Linda Biedermann Executive Director Board of Massage

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-005434

Orders for Case No: 87-005434