STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF MASSAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5709

)

JOYCE ANN BORCINA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on February 22, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Susan E. Lindgard

Senior Attorney Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Robert P. Foley, Esquire

406 Dixie Highway

West Palm Beach, Florida 33401-42398 STATEMENT OF THE ISSUE

At issue is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated July 21, 1994, petitioner charged that respondent, a licensed massage therapist, committed the following offenses: Count One, "Respondent . . . violated FLA. STAT. section 480.046(1)(k) . . . by violating . . . FLA. ADMIN. CODE Rule 21L-30.002(1)(c), by permitting an employed person to practice massage when such person is not duly licensed"; Count Two, "Respondent . . . violated FLA. STAT. section 480.046(1)(k) . . . by violating . . . FLA. ADMIN. CODE Rule 21L-26.010(2), in that no massage establishment owner shall engage in or permit any person or persons to engage in sexual activity in such owner's massage establishment or use such establishment to make arrangements to engage in sexual activity in any other place"; Count Three, "Respondent . . . violated FLA. STAT. section 480.046(1)(c) . . . through being convicted or found guilty, regardless of adjudication, of a crime in any

jurisdiction which directly relates to the practice of massage or the ability to practice massage"; and, Count Four, "Respondent . . . violated FLA. STAT. section 480.046(1)(k) . . . by violating . . . FLA. ADMIN. CODE Rule 21L- 26.010(3), in that no licensed massage therapist shall use the therapist-client relationship to engage in sexual activity with any client or to make arrangements to engage in sexual activity."

Respondent filed an election of rights disputing the allegations set forth in the administrative complaint, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called Maysel Stewart, Ghenz Kosova, Thomas Ceccarelli, and Julius Sessoms as witnesses, and its exhibits 1-4 were received into evidence. Respondent called no witnesses and offered no exhibits.

Official recognition was taken of Chapter 480, Florida Statutes, and Chapter 61G, Florida Administrative Code.

The transcript of hearing was filed March 9, 1995, and the parties were accorded ten days from that date to file proposed recommended orders.

Petitioner elected to file such a proposal, and the findings of fact contained therein have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation, is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120,

   455 and 480, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. Respondent, Joyce Ann Borcina, is now, and was at all times material hereto, a licensed massage therapist in the State of Florida, having been issued license number MA 0011685.

   
   

3. Respondent was, at all times material hereto, the owner and operator of Joy Therapeutic Massage, Inc., which was, at those times, a licensed massage establishment, license number MM 0002999, located at 2298 Northwest Second Avenue, office number 21, Boca Raton, Florida. As of the date of hearing, Joy Therapeutic Massage, Inc., was not licensed as a massage establishment.

   
   

4. On or about July 15, 1993, an officer of the City of Boca Raton Police Department, operating undercover, received massage services from "Debby" at Joy Therapeutic Massage, Inc. The Officer paid $40 for the massage, tipped Debby

   $10, and asked her whether there "were any other services available?" Debby replied that she would be able to massage him both topless and bottomless for

   $100.

   
   

5. On July 19, 1993, the Officer, again acting undercover, received massage services from respondent at Joy Therapeutic Massage, Inc. During the course of that massage, the Officer told respondent that the prior massage therapist had "said that I could get a massage and that she would be topless and bottomless." Respondent replied that "she couldn't do that unless she got to know me a little better." Notwithstanding, when the Officer turned over on his back to continue the massage, respondent began disrobing until she was naked and, as she began to massage him again grabbed his penis.

6. The Officer declined, what he perceived and apparently was, an attempt to masturbate him, but inquired, as he was preparing to leave, whether "there [was] anything else we can do?" Respondent replied, "that maybe next time, as long as I could get to know her a little better." The Officer then paid respondent $50 for the massage and left.

   
   

7. On July 27, 1993, the Officer, still operating undercover, kept an appointment for a massage with respondent at Joy Therapeutic Massage, Inc. At the commencement of that session, while she was disrobing, respondent agreed to engage in "regular sex" with the Officer for $100. Shortly thereafter, when she had finished disrobing, the Officer identified himself as a police officer and placed respondent under arrest.

   
   

8. According to the court records filed in this case [Petitioner's exhibit 4], respondent pled nolo contendere to a one-count violation of Section 480.047(1)(c), Florida Statutes, which renders it unlawful for any person to "[p]ermit an employed person to practice massage unless duly licensed," a first degree misdemeanor. In response to such plea, the court withheld adjudication of guilt, placed respondent on probation for a term of six months, with the special condition that she perform thirty-five hours of community service, and imposed court costs of $105. Respondent offered no proof at hearing to explain the circumstances surrounding her plea of nolo contendere.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 120.60(7), Florida Statutes.

   
   

10. At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint, as heretofore set forth in the preliminary statement. In cases of this nature, the petitioner bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington,

    510 So.2d 292 (Fla. 1987). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 492 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

11. Pertinent to this case, Section 480.046(1), Florida Statutes, provides that the Board of Massage may take disciplinary action against a massage therapist or massage establishment licensed under the act for the following acts:

    
    

    (c) Being convicted or found guilty, regard- less of adjudication, of a crime in any juris- diction which directly relates to the practice

    of massage or to the ability to practice massage. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter.

    * * *

    (k) Violating any provision of this chapter, a 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.

12. Also pertinent to this case are the following provisions of Chapter 61G11, Florida Administrative Code, formerly Chapter 21L, Florida Administrative Code:

    
    

    61G11-26.010 Sexual Activity Prohibited.

    1. Sexual activity by any person or persons

       in any massage establishment is absolutely prohibited.

    2. No massage establishment owner shall engage in or permit any person or persons to engage in sexual activity in such owner's massage establish- ment or use such establishment to make arrangements to engage in sexual activity in any other place.

    3. No licensed massage therapist shall use the therapist-client relationship to engage in sexual activity with any client or to make arrangements to engage in sexual activity with any client.

    4. As used in this rule, "sexual activity" means any direct or indirect physical contact by any person or between persons which is intended to erotically stimulate either person or both or which is likely

       to cause such stimulation and includes sexual intercourse, fellatio, cunnilingus, masturbation,

       or anal intercourse. For purposes of this subsection, masturbation means the manipulation of any body

       tissue with the intent to cause sexual arousal. As used herein, sexual activity can involve the use of any device or object and is not dependent on whether

       penetration, orgasm, or ejaculation has occurred. . . .

       * * *

       61G11-30.001 Misconduct and Negligence in the Practice of Massage.

       1. The following acts shall constitute misconduct in the practice of massage for which the disciplinary penalties contained in Sections 455.227 and 480.046, Florida Statutes, may be imposed.

          1. Being convicted 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 considered a conviction for purposes of this Rule.

       * * *

       1. Aiding, assisting, procuring, or advising any unlicensed person to practice massage contrary to

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

       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.

       
       

13. Here, the proof demonstrated clearly and convincingly that respondent committed the acts heretofore found in the findings of fact and that, by such conduct, she violated the foregoing provisions of law, with the exception of Rule 61G11-30.001(1)(c), as alleged in Counts Two through Four of the administrative complaint. As to Count One, petitioner failed to demonstrate

    that "Debby" was not duly licensed to practice massage and, therefore, failed to demonstrate a violation of "FLA. STAT. section 480.046(1)(k) . . . by violating

    . . . FLA. ADMIN. CODE Rule 21L-30.002(1)(c)," now Rule 61G11-30.001(1)(c)," now

    Rule 61G11-30.001(1)(c), as alleged in Count One of the administrative complaint.1

    
    

14. In fashioning an appropriate penalty under the facts of this case, due consideration has been given to the Board's disciplinary guidelines, as well as the Board's aggravating and mitigating factors. Rule 61G11-30.002, Florida Administrative Code. Given the circumstances of this case an appropriate penalty is revocation of licensure.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the

charges set forth in Counts Two through Four of the administrative complaint, dismissing Count One of the administrative complaint, and revoking respondent's license as a massage therapist.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March 1995.

WILLIAM J. KENDRICK

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 23rd day of March 1995.

ENDNOTE

1/ Petitioner apparently recognized this failing since it requests leave in its proposed recommended order to voluntarily dismiss Count One. Considering that the record has been closed and the case submitted to the Hearing Officer for resolution, petitioner's request is denied. See, e.g., City of North Port, Florida v. Consolidated Minerals, Inc., 19 Fla. L. Weekly D2024 (Fla. 2d DCA 1994).

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Adopted in paragraphs 2 and 3.

2-5. Addressed in paragraph 4, otherwise unnecessary detail. 6-8. Addressed in paragraphs 5 and 6.

9-12. Addressed in paragraph 7.

13-17. Unnecessary detail.

18. Addressed in paragraph 8. 19-26. Unnecessary detail.

COPIES FURNISHED:

Susan E. Lindgard Senior Attorney Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Robert P. Foley, Esquire

406 Dixie Highway

West Palm Beach, Florida 33401-4298

Anna Polk Executive Director Board of Massage

Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Linda Goodgame General Counsel

Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 94-005709

Orders for Case No: 94-005709