STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF MASSAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1607

)

AURORA BARNAT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on September 20, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Susan E. Lindgard, Esquire

Department of Business and Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Alan E. Weinstein, Esquire

Attorney at Law 1801 West Avenue

Miami Beach, Florida 33139 STATEMENT OF THE ISSUES

Whether Respondent, a licensed massage therapist, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent, a licensed massage therapist who is certified to perform colonic irrigations. The Administrative Complaint alleged that Respondent performed colonic irrigations on an outcall basis in violation of Section 480.046(1)(n), Florida Statutes, which requires that colonic irrigations be performed only in licensed massage establishments. Respondent denied that she committed the violation alleged, and this formal proceeding before the Division of Administrative Hearings followed. Respondent concedes that she performed enemas on an outcall basis and that she referred to this procedure in her advertisement as a "colon irrigation".

Respondent asserts that an enema is not a "colonic irrigation" within the meaning of the pertinent statute and rule. She also contends that an enema can be performed on an outcall basis.

At the formal hearing, Petitioner presented the testimony of Charles Frear, Lexa Jones, and Debra Karlan. Mr. Frear is an investigator employed by Petitioner. Ms. Jones is a licensed massage therapist who complained to Petitioner about Respondent's advertisement. Ms. Karlan was accepted as an expert witness in the fields of massage therapy and colonic irrigations.

Petitioner offered two exhibits, both of which were accepted into evidence. At the request of the Petitioner, official recognition was taken of Chapter 480, Florida Statutes, and of Chapter 61G-11, Florida Administrative Code.

Respondent recalled Ms. Karlan, but presented no other witnesses. Respondent presented six exhibits, each of which were accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the agency of the State of Florida responsible for the licensing and regulation of the practice of massage therapy. Petitioner also certifies those eligible to perform colonic irrigations in the State of Florida.

   
   

2. Chapter 480, Florida Statutes, is known as the "Massage Practice Act". Section 480.033(6), Florida Statutes, defines the term "colonic irrigation" as follows:

   
   

   (6) "Colonic irrigation" means a method of hydrotherapy used to cleanse the colon with the aid of a mechanical device and water.

   
   

3. Colonic irrigations can be performed by a licensed massage therapist only at a licensed massage establishment. Section 480.046(1), Florida Statutes, provides certain grounds for the discipline of licensed massage therapists, including the following:

   
   

   (1)(n) Practicing massage at a site, location, or place which is not duly licensed as a massage establishment, except that a massage therapist, as provided by rules adopted by the board, may provide massage services, excluding colonic irrigation, at the residence of a client, at

   the office of the client, at a sports event, at a convention, or at a trade show.

   
   

4. Petitioner's Rule 61G11-30.001(1)(m), Florida Administrative Code, provides, in pertinent part, as follows:

   
   

   (1)(m) . . . a massage therapist may provide massage services, excluding colonic irrigation,

   at the residence of a client, at the office of the client, at a sports event, at a convention, or at a trade show. . . .

   
   

5. At all times pertinent to this proceeding, Respondent was licensed by Petitioner as a massage therapist and was certified by Petitioner to perform colonic irrigations. Respondent's massage therapist license number is 7954.

   
   

6. Respondent placed an advertisement in the Yellow Pages of the 1993 telephone book for Miami, Florida, that advertised the following service on an outcall basis: COLON IRRIGATION WITH DISPOSABLES.

   
   

7. Lexa Jones is licensed by Petitioner as a massage therapist and is certified to perform colonic irrigations. Ms. Jones teaches massage therapy in Fort Lauderdale, Florida. One of her students brought to her attention the Respondent's advertisement in the Miami Yellow Pages. Ms. Jones testified at the formal hearing that she called the number listed in the advertisement and talked to a woman who stated that she had placed the advertisement. Respondent is the person who placed the advertisement and Ms. Jones clearly believed that she was talking with the Respondent. Ms. Jones was unable to testify that the person with whom she talked by telephone was the Respondent. 1/

   
   

8. Based on the statements made to her by telephone and on the contents of the advertisement, Ms. Jones filed a complaint against Respondent with the Board of Massage.

   
   

9. Mr. Charles Frear, an environmental inspector employed by Petitioner, investigated this complaint. On October 6, 1993, Mr. Frear inspected Respondent's home and interrogated her about the services she was performing. The Respondent told Mr. Frear that she had placed the advertisement in the telephone book, but that the service she was performing on an outcall basis was a "colon irrigation" and that she performed this service in hotel rooms. Respondent showed Mr. Frear an enema kit that Respondent said she used to perform the "colon irrigation." The kit, intended for one time use, was sterile and sealed in a plastic carton. The kit included an enema bag, a tube, soap, and lubricating jelly.

   
   

10. Respondent told Mr. Frear that she believed that there was a difference between a "colonic irrigation" and a "colon irrigation" since the former involves a large machine that is used to regulate the flow of water while the latter uses an enema bag and a tube.

    
    

11. An enema forces liquid into the colon by means of an enema bag and tubing. The injection of liquid through the anal canal and into the colon serves to remove fecal material and bacteria from the colon. A clean, hygienic area is needed for the administration of the enema and its subsequent evacuation on a toilet.

    
    

12. There was no evidence that Respondent used any tool in performing her services other than the enema kit and water. Respondent asserts that the enema kit should not be construed to be a "mechanical device" as that term is used in defining "colonic irrigation" by Section 480.033(6), Florida Statutes. The term "mechanical device" as used in Section 480.033(6), Florida Statutes, is not defined by statute or rule. The American Heritage Dictionary of the English Language contains the following definitions pertinent to this proceeding. A "device" means "something devised or constructed for a particular purpose; especially a machine used to perform one or more relatively simple tasks."

    "Mechanical" means "of or pertaining to machines or tools." A "machine" is "any system, usually of rigid bodies, formed and connected to alter, transmit, and direct applied forces in a predetermined manner to accomplish a specific objective, such as the performance of useful work [or] a simple device, such as a lever, pulley, or inclined plane, that alters the magnitude or direction, or both, of an applied force. ..." A "tool" can mean "anything regarded as necessary to carry out one's occupation or profession."

    
    

13. The enema kit is used to force water through a person's anal canal and rectum for the purpose of cleaning the colon. Based on the foregoing definitions and on the expert testimony presented, it is found that an enema kit is a mechanical device. It is further found that an enema is a form of "colonic irrigation".

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the

    firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

16. Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 480.046(1)(n), Florida Statutes, by providing enemas on an outcall basis.

    
    

17. The recommendation that follows takes into consideration the fact that Respondent has not been previously disciplined, that she fully cooperated with Petitioner's investigator, and that no customer complained as to her services.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the

findings of fact and conclusions of law contained herein and finds Respondent

guilty of violating the provisions of Section 480.046(1)(n), Florida Statutes. It is FURTHER RECOMMENDED that the Petitioner issue to Respondent a letter of reprimand and fine her the sum of $500.00.

DONE AND ENTERED this 29th day of December, 1994, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 29th day of December, 1994.

ENDNOTE

1/ These hearsay statements do not fall under the exception to the hearsay rule codified in Section 90.803(18), Florida Statutes, because the speaker was not identified with sufficient certainty. Pursuant to Section 120.58(1)(a), Florida Statutes, "... Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. ..." No finding in this Recommended Order is based on Ms. Jones' testimony as to this telephone conversation. Succinctly stated, Ms. Jones testified that she asked the woman with whom she spoke whether she was merely giving an enema on an out call basis and the woman replied that she was giving a "high colonic" and used a hose twenty feet in length. This would be a more extensive procedure than an enema.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1607

The following rulings are made on the proposed findings of fact submitted by the Petitioner.

1. The proposed findings of fact in paragraphs 1, 3, 4, 5, 15, 16, 17, 18, and 20 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 2, 9, 10, 11, 12, and 14 are subordinate to the findings made.

3. The proposed findings of fact in paragraph 6 are rejected as being unsubstantiated by the evidence for the reasons stated in the endnotes.

4. The proposed findings of fact in paragraph 13 are addressed in the preliminary statement, but are unnecessary as findings of fact.

5. The proposed findings of fact in paragraph 19 are rejected as being unnecessary to the conclusions reached.

6. The proposed findings of fact in paragraph 20 are conclusions of law.

The following rulings are made on the proposed findings of fact submitted by the Respondent.

1. The proposed findings of fact submitted by the Respondent pertaining to Respondent's licensure are adopted in material part by the Recommended Order.

2. The proposed findings of fact submitted by the Respondent pertaining to the services that Respondent performed are adopted in material part by the Recommended Order.

3. The remaining proposed findings of fact submitted by the Respondent are rejected as being contrary to the findings made and to the conclusions reached.

COPIES FURNISHED:

Susan E. Lindgard, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Alan E. Weinstein, Esquire 1801 West Avenue

Miami Beach, Florida 33139

Anna Polk, Executive Director Board of Massage

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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 ten 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: 94-001607

Orders for Case No: 94-001607