STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MASSAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6091

)

DANA CARLOS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at West Palm Beach, Florida, on February 9, 1990, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Cynthia Gelmine, Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 66

Tallahassee, Florida 32399-0792

For Respondent: Ms. Dana Carlos

4425 Rachael Way

West Palm Beach, Florida 33406 STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated various statutory and rule provisions. The general nature of the allegations concern (a) offering to engage a client in sexual activity, (b) allowing an apprentice to practice massage without supervision,

1. practicing massage at unlicensed premises, and (d) employing an unlicensed person to practice massage.

   
   

   PRELIMINARY STATEMENT

   
   

   At the hearing on February 9, 1990, the Petitioner presented the testimony of four witnesses and offered three exhibits, all of which were received in evidence. The Respondent testified on her own behalf and also offered five exhibits, four of which were received in evidence and one of which was withdrawn. (The Respondent also offered several other documents which were not assigned exhibit numbers, and which were rejected as exhibits following objection by the Petitioner.) Following the hearing, a transcript of the proceedings was filed with the Hearing Officer on March 13, 1990. Thereafter,

   the parties were allowed until March 23, 1990, to file their proposed recommended orders. At the request of the Respondent, the deadline for proposed recommended orders was subsequently extended until April 27, 1990. The Petitioner timely filed Petitioner's Proposed Recommended Order containing proposed findings of fact and conclusions of law. The Respondent late-filed what can best be described as a heterogeneous collection of documents comprised of such things as various portions of documents that were rejected as exhibits at the hearing, various documents from the Department's investigatory files, a summary of the economic consequences this proceeding has had on the Respondent, various pages of typed and handwritten arguments, copies of cards and letters from satisfied clients, copies of letters of support from a chiropractor and an osteopathic physician, copies of portions of the Amended Administrative Complaint containing various hand written notations, and a few other miscellaneous items, including a tape cassette. The parties' post-hearing submissions to the Hearing Officer are addressed in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Based on the evidence received at the hearing, the following facts are found:

   
   

   1. The Respondent, Dana Carlos, is a licensed massage therapist in the State of Florida, having been issued license number MA 0002811. The Respondent has been so licensed at all times material to this proceeding.

      
      

   2. On December 10, 1986, the Respondent was the co-owner of a massage establishment known as Massage by Dana and Jan, which at that time was located at 721 U.S. Highway 1, Suite 222, North Palm Beach, Florida 33408. That establishment was licensed by the State of Florida, having been issued license number MM 0000202. When Inspector Jean Robinson inspected that establishment on December 10, 1990, Gemma V. Koder was massaging a client without being supervised by either the Respondent or Jan Carlos. The client had come in early and Ms. Koder had called the Respondent by telephone to ask what she should do. The Respondent had told Gemma V. Koder to go ahead and start massaging the client and that she (the Respondent) would be there as soon as possible.

      
      

   3. The Respondent was approved as a sponsor for Gemma V. Koder, which sponsorship terminated on May 14, 1987. Gemma V. Koder was an apprentice for Dana Carlos. Gemma V. Koder had an apprentice license that allowed her to perform massages only when either the Respondent or Jan Carlos were physically present to supervise her. Either the Respondent or Jan Carlos could supervise Ms. Koder, because they were "co-sponsors."

      
      

   4. The Respondent later moved her massage establishment to 3700 Georgia Avenue, West Palm Beach, Florida. At that location she practiced massage under the name Massage by Dana and Jan. Dana Carlos leased the premises at that location. On April 13, 1988, the premises at 3700 Georgia Avenue were inspected by Inspector Jean Robinson. On that day Tammy Coxey was working as an unlicensed apprentice for the Respondent. The Respondent had applied for an apprentice license for Tammy Coxey, but the apprentice license was never approved by the Board of Massage. Therefore, the Respondent was never approved as a sponsor for Tammy Coxey and the Respondent knew that Tammy Coxey did not have an apprentice license or any other type of license. Nevertheless, admittedly motivated by profit potential, the Respondent disregarded the licensing requirements and put Tammy Coxey to work.

   5. On April 13, 1988, the room in which Tammy Coxey was performing massages as an employee of the Respondent was across the hall from the licensed massage establishment the Respondent was authorized to operate. The room in which Tammy Coxey was performing massages as an employee of the Respondent was never a licensed massage establishment.

      
      

   6. On the 6th and 7th of October, 1988, Sergeant Harvey Starr, of the West Palm Beach Police Department, called the establishment known as Massage by Dana and Jan and spoke to the Respondent on the telephone. He inquired about a "full body treatment" and was told that "all her girls gave full body treatments that included a release." In street jargon, a massage that includes "full body treatment including release," means a massage that includes masturbation to climax. On October 11, 1988, Sergeant Starr made an appointment for a massage and went to the premises of Massage by Dana and Jan, where he was met by the Respondent. Sergeant Starr told the Respondent that his name was "Richard," that he was the one who had called her on the telephone, and then asked what the charge was for a "full body treatment." The Respondent said it would be $25. Sergeant Starr than asked if that included a "release" and the Respondent told him that would cost $28. Sergeant Starr then specifically asked the Respondent if a "release" meant that he would be masturbated, and the Respondent answered that it did. Sergeant Starr then asked if the Respondent wanted to be paid. She, answered in the affirmative, Sergeant Starr handed her $30, and at that time he identified himself as a police officer and told her that she was under arrest. The Respondent was arrested on the charge of soliciting for the purpose of prostitution.

      
      

   7. Beginning in 1974 and for several years thereafter, in an effort to compete effectively, attract repeat business, and maintain market share in the Palm Beach County massage market, the Respondent engaged in the practiced of regularly masturbating massage clients.

      
      

      CONCLUSIONS OF LAW

      
      

   8. Based on the foregoing findings of fact and on the applicable legal principles, statutes, rules, and judicial precedents, the following conclusions of law are made:

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sec. 120.57, Fla. Stat. (1989).

      
      

   10. In a case of this nature, the Petitioner has the burden of proving the charges set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington 510 So.2d 292 (Fla. 1987).

       
       

       Conclusions regarding Count I

       
       

   11. Count I of the Amended Administrative Complaint addresses the issue of offering to engage a client in sexual activity and charges that the Respondent violated Section 480.046(1)(k), Florida Statutes, by violating Board Rule 21L- 30.001(1)(d), Florida Administrative Code. Section 480.046(1)(k), Florida Statutes authorizes the Board to take disciplinary action against a licensee for, among other things, "[v]iolating ... a rule of the board or department." Rule 21L-30.001(1)(d), Florida Administrative Code, provides that misconduct in the practice of massage for which disciplinary action may be taken includes the following:

2. Engaging or attempting or offering to engage a client in sexual activity, including any genital contact, within a client-massage therapist relationship. A client shall be presumed to be incapable of giving free, full and informed consent to sexual activity with his or her massage therapist.

The Respondent's conduct with Sergeant Starr was an offer to engage a client in sexual activity. That conduct was established by clear and convincing evidence. Accordingly, the Respondent is guilty of the violations charged in Count I of the Amended Administrative Complaint.

Conclusions regarding Count II

1. Count II of the Amended Administrative Complaint addresses the issue of failing to supervise a provisional licensee and charges that the Respondent violated Section 480.046(1)(e), Florida Statutes, by, in the words of the statute, "[a]iding, assisting, procuring, or advising any unlicensed person to practice massage contrary to the provisions of this chapter or to a rule of the department or the board." Gemma V. Koder was a "provisional licensee," not an "unlicensed person." Therefore, the Respondent's failure to supervise Ms. Koder was not a violation of Section 480.046(1)(e), Florida Statutes.

   
   

2. Count II also charges, the Respondent with violation of Section 480.046(1)(k), Florida statutes, by reason of violation of the following Board rules: 21L-29.001(4), 21L-29.010(2), 21L-30.001(1)(c), and 21L-30.001(1)(h). Rule 21L-29.001(4) is a definition of the term "direct supervision." It is not a provision that can be violated, because it only defines the term; it does not purport to impose a duty to supervise.

14. Rule 21L-29.010(2) states:

(2) A provisional licensee shall only practice under the supervision of a licensed

massage therapist in an establishment which is licensed pursuant to Chapter 480, F.S.

By its specific terms, Rule 21L-29.010(2) only purports to limit the activities of "a provisional licensee." It does not impose a duty of supervision on licensed massage therapists; it merely prohibits unsupervised practice by provisional licensees. Therefore, it is not a provision that can be violated by a licensee, such as the Respondent. It appears to be the position of the Petitioner that a duty to supervise is implicit in Rule 21L-29.010(2), but such a position is contrary to the judicial decisions requiring strict construction of penal provisions. In Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979), a statutory provision much more clear than Rule 21L- 29.010(2) was found to be an insufficient basis for imposing discipline on a licensee for the unauthorized acts of the licensee's agent. In Bach, supra, the court provided the following guidance:

Where statutes provide grounds for revocations of licenses, those provisions must be strictly construed and strictly followed because the statute is penal in nature. State v.

Pattishall, 99 Fla. 296, 126 So. 147, 148 (1930). Additionally, when a statute

authorizes revocation of a license for certain enumerated causes, the license cannot be revoked for any ground other than those causes specified. State ex rel. Williams v. Whitman, 116 Fla. 196, 156 So. 705 (1934); In re

Weathers, 159 Fla. 390, 31 So.2d 543 (1947).

1. Rule 21L-30.001(1)(c) and (h) reads as follows:

   
   

   (c) Aiding, assisting, procuring, or advising any unlicensed person to practice

   massage contrary to this rule or to a rule of the department or board.

   
   

   (h) Violating any provision of any rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.

   
   

   The facts in this case do not make out a violation of subsection (c) of Rule 21L-30.001(1), because Gemma V. Koder was a "provisional licensee." As such, she was not an "unlicensed person." The facts in this case do not make out a violation of subsection (h) of Rule 21L-30.001(1), because the Respondent's failure to supervise Ms. Koder is not a violation of any rule, order, or subpoena. (See discussion, above, regarding Rule 21L-29.010(2).)

   
   

2. Finally, Count II charges the Respondent with a violation of Section 480.046(1)(k), Florida Statutes, "through a violation of 480.047(1)(c), Florida Statutes, by permitting an employed person who has not been duly licensed to practice massage." Section 480.047, Florida Statutes, is a criminal statute that imposes criminal penalties for various offenses described therein. It is to be enforced by criminal prosecution and does not appear to be a provision which can properly be bootstrapped into the "catch-all" language of Section 480.046(1)(k). And, in any event, the conduct made unlawful by Section 480.047(1)(c), does not encompass failure to properly supervise a provisional licensee.

   
   

3. For the reasons set forth in Paragraphs 4, 5, 6, 7, and 8, above, it is concluded that all of the violations in Count II of the Amended Administrative Complaint should be dismissed.

   
   

   Conclusions regarding Count III

   
   

4. Count III of the Amended Administrative Complaint addresses the issues of operating an unlicensed massage establishment and employing an unlicensed person to practice massage, and charges that the Respondent violated Section 480.046(1)(k), Florida Statutes, "through a violation of 480.047(1)(b), by operating a massage establishment which has not been duly licensed." Count III also charges that the Respondent violated Section 480.046(1)(k), Florida Statutes, "through a violation of 480.047(1)(c), by permitting an employed person who has not been duly licensed to practice massage." As noted in Paragraph 8, above, Section 480.047, Florida Statutes, is a criminal statute that imposes criminal penalties for various offenses described therein. It is to be enforced by criminal prosecution and does not appear to be a provision which can properly be bootstrapped into the "catch-all" language of Section 480.046(1)(k). Therefore, the allegations in Count III to the effect that the

   Respondent has violated portions of Section 480.047, Florida Statutes, should be dismissed.

   
   

5. Count III also charges the Respondent with violation of Section 480.046(1)(k), Florida Statutes, by violating Rule 21L-30.001(1)(i), Florida Administrative Code, which rule describes the following as misconduct for which disciplinary action may be taken: "[o]perating any massage establishment unless it has been duly licensed as provided herein...." The Respondent operated an unlicensed massage establishment in addition to her licensed establishment.

   That conduct was established by clear and convincing evidence. Accordingly, the Respondent is guilty of violating Section 480.046(1)(k), Florida Statutes, by reason of having violated Rule 21L-30.001(1)(i), Florida Administrative Code.

   
   

6. Finally, Count III charges the Respondent with violation of Section 480.046(1)(e), Florida Statutes, which section authorizes disciplinary action for "[a]iding, assisting, procuring, or advising any unlicensed person to practice massage contrary to the provisions of this chapter or to any rule of the department or the board." The Respondent's employment of Tammy Coxey at a time when the Respondent knew that Ms. Coxey had neither a provisional license nor a regular license constitutes aiding, assisting, procuring, or advising an unlicensed person to practice massage contrary to the applicable statutes and rules. That employment was established by clear and convincing evidence. Accordingly, the Respondent is guilty of violating Section 480.046(1)(e), Florida Statutes.

   
   

   Conclusions regarding appropriate penalty

   
   

7. Section 480.046(2), Florida Statutes, authorizes the Board of Massage to impose the following penalties:

   
   

   1. Refusal to license an applicant.

   2. Revocation or suspension of license.

   3. Issuance of a reprimand or censure.

   4. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

      
      

8. The disciplinary guidelines adopted by the Board of Massage appear at Rule 21L-30.002, Florida Administrative Code. The guidelines are rather broad and, in general, do not lend themselves to very specific application in a particular case. Included in the guidelines is a list of aggravating and mitigating factors to be considered. In this case, the aggravating factors outweigh any mitigating factors. Not only is the Respondent guilty of three different types of violations, her demonstrated attitude towards her professional responsibilities is such that any penalty short of revocation is unlikely to have any significant deterrent effect. In her testimony at the hearing, the Respondent displayed a very cavalier attitude with respect to her obligation to comply with statutory and rule requirements governing the practice of her profession; not only with respect to the specific violations charged here, but also by her candid, voluntary admission that in the past she used to masturbate clients on a regular basis in an effort to compete effectively for market share in the Palm Beach County massage business.

   RECOMMENDATION

   
   

   Upon consideration of all of the foregoing, it is recommended that the Board of Massage enter a Final Order in this case to the following effect:

   
   

   1. Dismissing all charges of violations set forth in Count II of the Amended Administrative Complaint;

      
      

   2. Dismissing the charges in Count III of the Amended Administrative Complaint that allege violations based on Section 480.47, Florida Statutes (the violations alleged at subparagraphs (a) and (c) of Paragraph 18 of the Amended Administrative Complaint);

      
      

   3. Finding the Respondent guilty of the violation charged in Count I of the Amended Administrative Complaint;

      
      

   4. Finding the Respondent guilty of the violations of Section 480.046(1)(e) and 480.046(1)(k), Florida Statutes, alleged in subparagraphs (b) and (d) of Paragraph 18 of Count III of the Amended Administrative Complaint; and

      
      

   5. Imposing a penalty , for the foregoing violations consisting of the revocation of the Respondent's license.

DONE AND ENTERED at Tallahassee, Leon County, Florida, this 4th day of June, 1990.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 89-6091

Consistent with the requirements of Section 120.59(2), Florida Statutes, the following are my specific rulings on the proposed findings of fact contained in the Petitioner's Proposed Recommended Order.

Paragraphs 1 through 5: Accepted in substance.

Paragraph 6: Rejected as constituting a conclusion of law rather than a finding of fact.

Paragraph 7: Rejected as irrelevant to charges in this case. Paragraphs 8 through 14: Accepted in substance.

Paragraph 15: Rejected because only record basis is uncorroborated hearsay.

Paragraphs 16 through 23: Accepted in substance.

Paragraph 24: Rejected as subordinate and unnecessary, even though supported by record evidence.

Paragraph 25: Accepted in substance.

With regard to the post-hearing submissions of the Respondent, it is first noted that, even after a deadline extension of over a month, the Respondent's post-hearing submissions were filed late. Section 120.59(2), Florida Statutes, requires a ruling on each proposed finding only where proposed findings are submitted "in accordance with agency rules." Rule 22I-6.031(1), Florida Administrative Code, provides for the filing of proposed findings of fact and other proposed matters "within a time designated by the Hearing Officer." The Respondent's post-hearing materials were not submitted in accordance with the cited rule because they were filed beyond the extended deadline. Therefore, Section 120.59(2), Florida Statutes, does not require a specific ruling on each and every random sentence that might arguably constitute a proposed finding wherever found within the 47 pages of assorted post-hearing material submitted by the Respondent. Accordingly, while I have carefully read each of the 47 pages of post-hearing material submitted by the Respondent, I have not attempted the herculean task of gleaning through the Respondent's eclectic accumulation of papers and attempting to sort out the few statements that might arguably be construed as proposed findings of fact from the morass of arguments, statements of law, total irrelevancies, inappropriate documents (such as rejected exhibits), and other documents that serve no useful purpose. Suffice it to say that it is clear that the Respondent is of the view that the Petitioner has failed to prove its case, and it is clear from the findings of fact made in the Recommended Order that the Hearing Officer is, for the most part, of the view that the record in this case warrants an opposite finding.

COPIES FURNISHED:

Cynthia Gelmine, Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

Ms. Dana Carlos 4425 Rachael Way

West Palm Beach, FL 33406

Mildred Gardner Kenneth D. Easley, Esquire

Executive Director General Counsel, Department

Board of Massage of Professional Regulation

Northwood Centre 1940 North Monroe Street 1940 North Monroe Street Tallahassee, FL 32399-0792 Tallahassee, FL 32399-0792

Docket for Case No: 89-006091

Orders for Case No: 89-006091