STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MASSAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0821

)

JAMES J. MAES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 4, 1993, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Susan E. Lindgard, Esquire

Department of Professional Regulation Northwood Centre Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: James J. Maes, pro se

1498 Northeast 34th Court Oakland Park, Florida 33334

STATEMENT OF THE ISSUE

The ultimate issue for determination at formal hearing was whether Respondent committed the offenses set forth in Petitioner's Administrative Complaint, and if so, what disciplinary action should be taken against Respondent's massage license.

PRELIMINARY STATEMENT

On January 25, 1993, the Department of Professional Regulation, hereinafter Petitioner, issued an Emergency Suspension Order against James J. Maes, hereinafter Respondent, alleging that Respondent had violated Section 480.046(1)(k), Florida Statutes, by violating Board of Massage Rule 21L- 30.001(1)(d), Florida Administrative Code, through engaging or attempting or offering to engage a client in sexual activity, including any genital contact, within a client-massage therapist relationship. On February 11, 1993, Petitioner filed an Administrative Complaint, dated February 1, 1993, against Respondent alleging the same violations.

Respondent disputed the allegations of fact and requested a formal hearing. On February 11, 1993, the matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer. A formal hearing was scheduled on March 4, 1993, pursuant to Notice of Hearing dated February 18, 1993.

At the formal hearing, Petitioner presented the testimony of three witnesses, with one witness' testimony being presented by deposition, which was entered into evidence. Respondent testified in his own behalf. Petitioner entered two exhibits into evidence. Respondent entered four exhibits into evidence.

A transcript of the formal hearing was ordered. Both parties timely submitted proposed findings of fact and conclusions of law which are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Chapters 455 and 480, Florida Statutes, and rules promulgated pursuant thereto.

   
   

2. Respondent is a Florida licensed massage therapist and has been at all times material hereto, having been issued license number MA 0012000. Respondent had been licensed for one (1) year prior to the alleged incidents and has performed approximately 700 massages, with approximately 300 of them being performed on women.

   
   

3. In August 1992, P. G. was suffering from tension in her neck, so she contacted Respondent for a massage. P. G. was acquainted with Respondent as a result of them attending the same church and participating for six weeks in "prosperity classes" which met once a week. Respondent agreed to give her a massage at her home. At no time prior to this had P. G. had a massage.

   
   

4. In the afternoon, on a day in August 1992, Respondent came to P. G.'s home to give her the massage. He brought with him a table and a sheet. P. G.'s husband was at home when Respondent arrived and was in another room in the home during the first half of the massage. The massage lasted approximately one hour and 15 minutes.

   
   

5. Before beginning the massage, Respondent did not obtain any medical or health history from P. G. Also, Respondent gave P. G. the option of being draped with her underwear on or nude. P. G. chose to keep her underwear on.

   
   

6. Respondent massaged P. G.'s neck, arms, shoulders, back, legs, feet and breasts. Throughout the massage, P. G. and Respondent conversed continuously. At one point, Respondent told her that she had a great body and that if she ever wanted to get rid of her husband he was available. P. G. did not take Respondent's comments seriously and dismissed them.

   
   

7. When Respondent was massaging P. G.'s arms and shoulders, she was lying in a prone position with her arms and hands outstretched forward and with him standing in front of her. Several times, during this part of the massage, when Respondent leaned forward, he brushed his penis against her hands.

8. Prior to massaging P. G.'s breasts, Respondent did not discuss massaging her breasts with her. Also, throughout the massage of P. G.'s breasts, Respondent used his hands to manipulate her breasts and manipulated her nipples.

   
   

9. At one point during the massage, Respondent touched P. G.'s vaginal area and began stroking her clitoris. P. G. described Respondent's action as a "stimulation" of her clitoris in a sexual manner "like your husband would do." When Respondent did this, P. G. immediately asked Respondent if this was part of the massage. He asked her if she wanted him to do this and she said no. Respondent ceased and did not do it again.

   
   

10. After the massage was over, P. G. paid Respondent $20 or $30, she did not recall which. Additionally, she walked Respondent to his vehicle and requested that he leave some of his advertising material with her, which he did.

    
    

11. P. G. reported the incident to Petitioner after her twin sister informed her that Respondent should not have touched her vaginal area and nipples.

    
    

12. Approximately two months later, on or about October 1, 1992, S. K. came to Fort Lauderdale, Florida, from California for her father's funeral. After his funeral, she was very stressed and wanted to get a massage. For S. K., massages were therapy, relieving her of stress, and she had been receiving massages for approximately 10 years. Also, S. K. is a licensed massage therapist in the State of California.

    
    

13. On or about October 3, 1992, a Sunday, S. K. called Respondent after selecting him from his advertisement in the yellow pages. Respondent agreed to perform a massage on her that same day in the afternoon at his home.

    
    

14. After arriving at Respondent's home, he directed S. K. to a small room which contained a massage table. She undressed completely and was provided with a small rectangular sheet about the width of her body for draping.

    
    

15. Prior to the massage, S. K. and Respondent discussed areas in particular that S. K. wanted massaged, i.e., shoulders, neck, and lower back. Further, she requested that Respondent use a special oil that she brought with her, and he agreed to do so; she felt "safe" with the smell of the oil. At no time did Respondent take any medical or health history from S. K.

    
    

16. S. K.'s massage lasted for approximately one hour. Respondent talked continuously during the entire massage, relating his real estate dealings.

    
    

17. Respondent began the massage by having S. K. lie on the massage table in a prone position. He placed the small sheet on her, leaving her buttocks uncovered. In the course of massaging the top of S. K.'s legs, Respondent brushed S. K.'s genital area, specifically her labia, very briskly at least six or eight times (three or four times on each leg). S. K. began to become suspicious of Respondent but did not object to Respondent's action.

    
    

18. While S. K. was still in the face down position, Respondent massaged

    S. K.'s buttocks. During the massage of her buttocks, Respondent brushed his fingers over S. K.'s anus several times, causing her to believe that Respondent was doing this intentionally. However, S. K. did not object to Respondent's action, wanting to believe, instead, that what was happening really wasn't.

19. Additionally, while in the prone position, Respondent massaged S. K.'s shoulders. She was lying with her arms and hands outstretched in the front of her and with Respondent standing in front of her. Several times, while manipulating S. K.'s shoulders, Respondent would brush his stomach and penis against her hands. Each time the brushing occurred, either with his stomach or his penis, S. K. would move her hands back, but the massage procedure would cause her hands to move forward again. S. K. objected to Respondent's action, and he stopped.

    
    

20. When Respondent had S. K. to lie on her back, he did not cover her genital area with any kind of draping. She became angry, accused Respondent of not properly draping her, and proceeded to drape her genital area herself.

    
    

    While S. K. was still lying on her back, Respondent massaged her breasts with his hands. Respondent had not discussed massaging S. K.'s breasts before doing so. During the massage of S. K.'s breasts, Respondent manipulated her nipples with his hands.

    
    

21. At the conclusion of the massage, S. K. paid Respondent $20 for the massage and gave him a $10 tip.

    
    

22. Neither S. K. nor P. G. were acquainted with one another.

    
    

23. Expert testimony was that draping is not universally taught in Florida's massage schools and that there is no universally accepted method of draping by massage therapists in Florida.

    
    

24. When a massage therapist performs a massage on a client for the first time, the minimum standard of practice, according to expert testimony, requires the massage therapist to take the client's medical history. Obtaining the medical history guides the massage therapist in the client's massage, such as informing the therapist which areas of the body are appropriate for massage and which are not.

    
    

25. A massaging of the breasts is not prohibited; however, according to expert testimony, the minimum standard of practice requires the massage therapist to (a) inform the client, prior to the massage, that the breasts will be massaged, (b) obtain the client's consent, and (c) use the client's hand to massage the breasts (massage through the client's hand). Additionally, the minimum standard of practice prohibits the manipulation of the nipples.

    
    

26. Massaging of the genital area, according to expert testimony, is prohibited by the minimum standard of practice, unless the client's physician has ordered such a massage. No physician ordered a massage of the genital area for either P. G. or S. K.

    
    

27. According to expert testimony, the anus is involved in a massage procedure referred to as colonic irrigation which is a gloved procedure and requires special equipment. The minimum standard of practice requires a massage therapist to obtain the client's consent for the procedure and requires the client to go through an advance procedure prior to the colonic irrigation massage. No colonic irrigation was performed on either P. G. or S. K.

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

29. License revocation proceedings are penal in nature. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

30. Section 480.033, Florida Statutes, defines massage as:

    
    

    1. [T]he manipulation of the superficial tissues of the human body with the hand, foot, arm, or elbow, whether or not such manipulation is aided by hydrotherapy, including colonic irrigation, or thermal therapy; any electrical or mechanical device; or the application to the human body of a chemical or herbal preparation.

       
       

       The same Section defines a massage therapist as:

       
       

    2. [A] person licensed as required by this act, who administers massage for compensation.

       
       

       The evidence is clear and convincing that at all times material to the alleged incidents, Respondent was a massage therapist and performed a massage on

       P. G. and S. K.

       
       

31. Respondent is charged with violating Subsection 480.046(1)(k), Florida Statutes, by violating Board of Massage Rule 21L-30.001(1)(d), Florida Administrative Code. According to Rule 21L-30.001(1)(d), an act by a massage therapist is misconduct and subject to discipline if the therapist is:

    
    

    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 evidence is clear and convincing that a client-massage therapist relationship exists in the case at hand. P. G. and S. K., each, requested a massage from Respondent, and he agreed to perform a massage on both of them. At that time, a client-massage therapist relationship existed.

    
    

    Further, the evidence is clear and convincing that, through the totality of Respondent's actions during the massage of both P. G. and S. K., he attempted or offered to engage them in sexual activity. Even though massage of the breasts is not prohibited, Respondent acted contrary to the minimum standard of practice by (a) massaging the breasts of both women, without informing them, prior to the massage, that he was going to do this, (b) not obtaining their consent, and

    (c) using his hands, instead of their hands for the breast massage. Moreover, contrary to the minimum standard of practice, Respondent manipulated the nipples of each client's breasts.

    Also, in the course of S. K.'s massage, Respondent brushed her anus, several times, with his fingers. The Hearing Officer finds S. K.'s testimony credible that Respondent's action was intentional.

    
    

    Furthermore, during the massage of both P. G. and S. K., genital contact was made. Respondent caused his penis to brush against their hands several times. Additionally, Respondent stimulated P. G.'s clitoris in a sexual manner she described as "like your husband would do" and brushed against S. K.'s labia several times.

    
    

    Finally, it is of no consequence that neither P. G. nor S. K. objected to all of Respondent's actions. The said Rule removes consent from consideration in a client-massage therapist relationship, as has been established in the case sub judice.

    
    

32. The disciplinary guidelines for the Board of Massage are found at Rule 21L-30.002, Florida Administrative Code. The penalty range for violation of Subsection 480.046(1)(k) [violating a rule of the board] is a fine of $250 to

$1,000, probation, suspension or revocation. Additional penalties may be imposed in combination or individually with the penalty previously enumerated: revocation or suspension of a licensee; a reprimand or censure; or an administrative fine up to $1,000 for each count or separate offense. Rule 21L- 30.002(5).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Board of Massage enter a final order:

1. Determining James J. Maes guilty of violating Subsection 480.046(1)(k), Florida Statutes, by violating Board of Massage Rule 21L-30.001(1)(d), Florida Administrative Code, as set forth in the Administrative Complaint; and

2. Imposing an administrative penalty of five years suspension.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of April 1993

ERROL H. POWELL

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 16th day of April 1993.

APPENDIX

Rulings on findings proposed by the Petitioner.

1-6. Rejected as subordinate to Findings of Fact 23-27.

1. Adopted in Finding of Fact 25, except for the reference to appropriate draping which is rejected. Expert testimony revealed that there was no universally accepted method of draping. See Finding of Fact 23.

2. Adopted in Finding of Fact 27.

3. Adopted in Finding of Fact 26.

4. Adopted in Finding of Fact 3.

5. Adopted in Finding of Fact 3.

6. Adopted in Finding of Fact 6.

7. Adopted in Finding of Fact 7.

8. Adopted in Finding of Fact 8.

9. Adopted in Finding of Fact 11.

10. Adopted in Finding of Fact 9.

11. Adopted in Finding of Fact 9.

12. Adopted in Finding of Fact 10.

13. Adopted in Finding of Fact 13.

14. Adopted in Finding of Fact 13.

15. Rejected as unnecessary.

16. Adopted in Finding of Fact 12.

17. Adopted in Finding of Fact 12.

18. Rejected as unnecessary.

19. Adopted in Finding of Fact 19.

20. Adopted in Finding of Fact 19.

21. Rejected, see Finding of Fact 23.

22. Adopted in Finding of Fact 17, except the reference to the clitoris which is rejected. Taking the deposition testimony about S. K.'s clitoris and labia indicates that S. K. meant her labia, not her clitoris.

23. Adopted in Finding of Fact 18.

24. Adopted in Finding of Fact 20, except the reference of failing to properly drape which is rejected. See Finding of Fact 23.

25. Adopted in Finding of Fact 20.

26. Adopted in Finding of Fact 21.

Rulings on findings proposed by the Respondent. Client I

1. Adopted in Findings of Fact 3 and 4, except the reference to the date which is rejected as contrary to the evidence presented.

2. Rejected as contrary to the evidence presented.

3. Rejected as contrary to the evidence presented.

4. Rejected as contrary to the evidence presented.

5. Rejected as contrary to the evidence presented, except as to P. G. wearing panties throughout the massage which is adopted in Finding of Fact 5.

6. Rejected as contrary to the evidence presented, except as to the last sentence which is adopted in Finding of Fact 10.

Client II

1. Adopted in Finding of Fact 13.

2. Rejected as contrary to the evidence presented, except for the expert testimony on draping which is adopted and modified in Finding of Fact 23.

3. Rejected as contrary to the evidence presented.

4. Rejected as contrary to the evidence presented, see Finding of Fact 17.

5. Rejected as contrary to the evidence presented, see Finding of Fact 20.

6. Rejected as contrary to the evidence presented, see Finding of Fact 18.

7. Rejected as unnecessary and contrary to the evidence presented, except the reference to the tip which is adopted in Finding of Fact 21.

COPIES FURNISHED:

Susan E. Lindgard, Esquire Department of Professional

Regulation

Northwood Centre Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

James J. Maes

1498 Northeast 34th Court Oakland Park, Florida 33334

Anna Polk, Executive Director Board of Massage

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-000821

Orders for Case No: 93-000821