STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MASSAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-7166

)

ALBERT ABREV, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 22, 1990, in Fort Lauderdale, Florida before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael A. Mone, Esquire

Senior Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

For Respondent: Robert P. Foley, Esquire

Foley and Colton, P.A.

406 North Dixie Highway

West Palm Beach, Florida 33401-4298 STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent's massage license should be revoked or otherwise penalized based upon the charges set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

On December 29, 1989, the Petitioner, Department of Professional Regulation, filed a five count Administrative Complaint against Respondent, Albert Abrev, d/b/a Geisha Massage. Petitioner filed a Motion to Amend the Administrative Complaint and a proposed Amended Administrative Complaint on May 24, 1990. By Order dated June 8, 1990, the Amended Administrative Complaint was accepted. The Amended Complaint deleted one count of the original Administrative Complaint and provided more factual detail regarding those counts. Count I of the Amended Complaint alleges that Respondent violated Section 480.046(1)(c) as a result of having been convicted or found guilty of a crime which directly relates to the practice of massage; Count II alleges that Respondent violated Section 480.046(1)(e), Florida Statutes, by aiding, assisting, procuring or advising an unlicensed person to practice massage;

Count III alleges that Respondent violated Section 480.046(1)(j), Florida Statutes by delegating professional responsibilities to a person whom the licensee knew or had reason to know was not qualified by training, experience or licensure; Count IV alleges Respondent violated Section 490.046(1)(k), Florida Statutes, and Rule 21L-30.001(1)(i) which prohibits the practice of massage in an establishment that has not been licensed.

In an Election of Rights Form transmitted to the Department on December 15, 1989, the Respondent denied the allegations and requested a formal hearing. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.

At the hearing, Petitioner presented the testimony of Sergeant Harvey Starr of the West Palm Beach Police Department, Officer Maria Virginia Olsen of the West Palm Beach Police Department, Officer Daniel Henry of the West Palm Beach Police Department and Kenneth Barnes. Petitioner offered eight exhibits into evidence, all of which were accepted except Petitioner's Exhibit 6.

Petitioner's Exhibit 6 is a certified copy of a conviction and plea entered in a criminal proceeding against Respondent. On June 18, 1990, an Order Granting Motion to Seal Court Records was entered in connection with that criminal case. Respondent argued that, as a result of the Order sealing the court records, Petitioner's Exhibit 6 was not admissible in this proceeding. Ruling on this matter was reserved. For the reasons set forth in the conclusions of law below, Respondent's objection is overruled and Petitioner's Exhibit 6 is accepted. Petitioner's Exhibit 7 is a copy of certain police records. This exhibit was accepted with an objection noted regarding the hearsay statements contained in those records.

Respondent presented the testimony of Victoria Ann Seely, who was formerly employed as a massage therapist at Geisha Massage. Respondent also testified on his own behalf. Respondent offered one exhibit into evidence which was accepted without objection.

During the hearing, the parties stipulated to strike paragraph 7 of the Amended Administrative Complaint.

At the conclusion of the hearing, the parties were granted ten days to decide whether to order a transcript of the proceeding. No transcript was ordered. Both parties have timely filed Proposed Findings of Fact and Conclusions of Law which have been reviewed and considered in the preparation of this Recommended Order. A ruling on each of the proposed findings of fact submitted by the parties is contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a state licensing and a regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30 and Chapters 120 and 480, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. Respondent, Albert Abrev, is now and at all material times hereto was a licensed masseur in the State of Florida having been issued license number MA0007125 on December 19, 1986. Respondent's license is valid through December 31, 1990.

3. Beginning in September of 1988, Respondent worked at an establishment known Geisha Massage, located 3222 South Dixie Highway in West Palm Beach, Florida. Geisha Massage has not been issued a license by the Board of Massage.

   
   

4. Geisha Massage is a Florida corporation which was officially incorporated on July 5, 1988. Respondent is not an owner, incorporator or officer of Geisha Massage.

   
   

5. On or about September 27, 1988, Officer Olsen of the West Palm Beach Police Department was directed by her supervisor, Detective David E. Henry, to perform an undercover investigation at Geisha Massage. The purpose of the investigation was to determine whether the establishment was involved in prostitution.

   
   

6. On or about September 27, 1988, Officer Olsen entered Geisha Massage and posed as an applicant looking for work. Officer Olsen claimed to be responding to an ad placed in the newspaper.

   
   

7. Officer Olsen was interviewed by the Respondent who advised her that she did not need a license because she would only being doing "body treatments or Swedish shampoo." Officer Olsen was requested to undress so that Respondent could determine how she reacted in front of a male without clothing.

   
   

8. During the job interview, Respondent indicated to Officer Olsen by pointing to his mouth and to his groin and shaking his head that she would not be expected to engage in sexual intercourse or oral sex. However, Respondent indicated by a hand gesticulation that she would be expected to provide "hand jobs." Officer Olsen's interpretation of Respondent's gestures were confirmed by one of the other employees of Geisha Massage.

   
   

9. Officer Olsen was told by Respondent that she was hired and that she was to return to work that evening.

   
   

10. Respondent was the only licensed massage therapist on the premises at Geisha Massage. There were at least three female employees of Geisha Massage who provided "body treatments" to customers. None of these employees were licensed massage therapists at the time of the incidents in question. One of them, Victoria Ann Seely, was in the process of obtaining licensure. She took the examination in November of 1988 and received her license in December, 1988. Ms. Seely was a ten percent owner of Geisha Massage.

    
    

11. The evidence established that patrons of Geisha Massage were masturbated for a fee upon request after their initial visit. On or about September 30, 1988, a customer of Geisha Massage, Kenneth Barnes, was masturbated and massaged by an employee of Geisha Massage.

    
    

12. On September 30, 1988, Officer Olsen, and Detective Daniel Henry of the West Palm Beach Police Department entered Geisha Massage with a search warrant and arrested Respondent, Victoria Ann Seely and two other female employees of the establishment.

    
    

13. On or about December 8, 1988, the Respondent pled guilty to a felony charge of operating a house of ill-fame. Adjudication of guilt was withheld and he was placed on two years probation. He has successfully completed probation. Respondent's plea of guilty was a "Alford" plea whereby he did not specifically admit the allegations against him but agreed to plead guilty because it was in his best interest to do so. Respondent testified that he agreed to plead guilty

    because he did not want to subject his wife and children to the publicity of a trial and further court proceedings.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes (1989).

    
    

15. A proceeding to discipline a business license is penal in nature and Petitioner has the burden of proving the charges set forth in the Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. Section 480.046(1)(c), Florida Statutes, authorizes the Board of Massage to take disciplinary action against a licensee who has been "convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of massage or to the ability to practice massage. Any plea of nolo contendere shall be a considered a conviction for purposes of this Chapter."

    
    

17. Respondent contends that the evidence of his conviction should not be considered since an Order was entered in June of 1990 which sealed the criminal records pursuant to Section 943.058, Florida Statutes. However, Petitioner offered into evidence a certified copy of the Order Withholding Adjudication of Guilt and Placing Defendant on Probation as well as the plea form executed by Respondent. Apparently, the documents were obtained prior to the date of the Circuit Court Order sealing the records.

    
    

18. Section 943.058(2) Florida Statutes authorizes a Circuit Court to order the sealing or expungement of any criminal history record under certain conditions. Under Subsection (3)(a), of that statute, the records of the Department of Law Enforcement may be ordered sealed or expunged by a court of competent jurisdiction and "thereafter such records and other records sealed pursuant to this Section, former s.893.14 former s.901.33, or similar laws shall be non-public records available only to the subject, his attorney, criminal justice agencies where the respective criminal justice purposes, or those entities set forth in paragraphs (6)(a), paragraph 6(d) or paragraph 6(e) for their respective licensing and employment purposes." The statute does not provide for retroactive effect of an order sealing the records nor does it automatically invalidate certified copies of the record which were obtained before sealing.

    
    

19. The certified copies provided by Petitioner established that Respondent pled guilty to a felony of keeping a house of ill-fame. In this case, the "house of ill-fame" was the massage establishment where Petitioner worked. Therefore, the evidence has established that Respondent is guilty of violating Section 480.046(1)(c), Florida Statutes as alleged in Count I of the Amended Administrative Complaint.

    
    

20. Count II alleges that Respondent is guilty of violating Section 480.046(1)(e), Florida Statutes by aiding, assisting, procuring, or advertising an unlicensed person to practice massage contrary to the provisions of this Chapter or to a rule of the Department of Board.

    
    

21. The evidence in this case established that Respondent solicited Officer Olsen to work at Geisha Massage and to perform services that were

    contrary to the provisions of Chapter 480, Florida Statutes and/or the rules of the Board of Massage. Therefore, the evidence has established that Respondent is guilty of the violation alleged in Count II. Rule 21L-30.001(1)(d) provides that the following shall constitute misconduct in the practice of massage:

    
    

    (d) Engaging or attempting or offering to engage a client in a sexual activity including any genital contact within a client massage therapist relationship. The client shall be presumed to be incapable of giving free, full, and informed consent to such activity to his or her massage therapist.

    
    

22. Section 480.046(1)(j), Florida Statutes provides for disciplinary action against a licensee for delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reasons to know that such person is not qualified by training, experience, or licensure to perform such responsibilities. In this case, the evidence did not establish that Respondent delegated any professional responsibilities to a non-licensed person. While there were non-licensed individuals working at Geisha Massage, no evidence was presented to establish that those individuals were under the supervision of or delegated professional responsibilities by Respondent. Therefore, Petitioner has not established that Respondent is guilty of Count III of the Amended Administrative Complaint.

    
    

23. Section 480.046(1)(k), Florida Statutes, authorizes the Board of Massage to take disciplinary action against any licensee who has violated any provision of Chapter 480, the rules of the Board of Massage or the Department of Professional Regulation.

    
    

24. Rule 21L-30.001(1)(i), Florida Administrative Code prohibits a licensee from practicing in an establishment unless the establishment has been licensed. Resspondent was a licensee of the Board of Massage while employed at Geisha Massage. Since the establishment was not licensed by the Department, Respondent was practicing in violation of the Rule. Therefore, the evidence has established that Petitioner is guilty of the violation alleged in Count IV.

    
    

25. Petitioner has established by clear and convincing evidence that the Respondent's actions were outside the course of the profession of massage and are prohibited by the statutes and rules. While there is no evidence that Respondent personally engaged in sexual relations with customers, the evidence established that other employees of Geisha Massage did engage in sexual relations with customers and that Respondent knew or should have known of such violations.

    
    

26. Rule 21L-30.002 sets forth the disciplinary guidelines and range of penalties to be imposed against licensees for violations of the above-cited statutes. Under Subsection (2)(c) a licensee who has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of massage is subject to a fine of $250.00 and/or probation or suspension or revocation. Under Subsection (2)(e), a licensee who has aided, assisted, procured or advertised any unlicensed person to practice massage contrary to the provisions of the statute or the rules is subject to a fine of $500.00 to $1000.00, probation or suspension or revocation. Under Subsection (2)(k), a licensee who violates any rule of the Board or Department is subject to a fine of $250.00 to $1000.00, probation, suspension or

revocation. In view of the serious nature of the offenses involved in this case, revocation is an appropriate penalty.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Massage enter a Final Order finding the Respondent, Albert Abrev guilty of Counts I, II and IV of the Amended Administrative Complaint and that the Board of Massage revoke the Respondent's license.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28 day of September, 1990.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28 day of September, 1990.

APPENDIX

Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 2.

2. Rejected as irrelevant and not established by competent substantial evidence.

3. Adopted in substance in Findings of Fact 5.

4. Adopted in substance in Findings of Fact 5.

5. Adopted in substance in Findings of Fact 6.

6. Adopted in substance in Findings of Fact 7.

7. Adopted in substance in Findings of Fact 7.

8. Adopted in substance in Findings of Fact 8.

9. Adopted in substance in Findings of Fact 7.

10. Adopted in substance in Findings of Fact 8.

11. Adopted in substance in Findings of Fact 8.

12.-14. Rejected as irrelevant. No evidence was

introduced to establish that Respondent hired the employee in question or delegated any responsibilities to her.

1. Adopted in substance in Findings of Fact 11.

2. Rejected as irrelevant.

17.-18. Rejected as irrelevant. No competent

substantial evidence was introduced to establish that Respondent any dealings with this particular customer. The customer was unable to positively identify Respondent.

1. Adopted in substance in Findings of Fact 13.

2. Adopted in substance in Findings of Fact 10.

   
   

   The Respondent's Proposed Findings of Fact

   
   

   Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

   Reason for Rejection.

   
   

   1. Rejected as constituting legal argument rather than a finding of fact. The evidence did establish that Respondent entered a plea of guilty. See, Findings of Fact 13. As set forth in Paragraph 5 of the Conclusions of Law, the sealing of Respondent's criminal record is not retroactive and competent substantial evidence was introduced regarding the guilty plea.

   2. Rejected as subordinate to Findings of Fact

      5 through 8.

   3. Addressed in Conclusions of Law 8.

   4. Addressed in Conclusions of Law 10.

COPIES FURNISHED:

Michael A. Mone, Esquire Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750

Robert P. Foley, Esquire Foley & Colton, P.A.

406 North Dixie Highway

West Palm Beach, Florida 33401-4298

Mildred Gardner Executive Director

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750

Docket for Case No: 89-007166

Orders for Case No: 89-007166