STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BYRON CHARLES TODARO, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0953

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

)

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 June 12, 1995, by video teleconference in Miami, Florida.

APPEARANCES

For Petitioner: Roger S. Elkind, Esquire

2903 Salzedo Street, Suite 100 Coral Gables, Florida 33134-6618

For Respondent: Lee Ann Gustafson

M. Catherine Lannon Assistant Attorneys General

Office of the Attorney General PL-01, The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner is eligible for licensure as a massage therapist by examination.

PRELIMINARY STATEMENT

By order dated November 12, 1994, the Department of Business and Professional Regulation, Board of Massage (Respondent) notified Byron Charles Todaro (Petitioner) of its intent to deny his application for licensure as a massage therapist by examination based upon Petitioner being convicted of a crime relating to the ability to practice massage in violation of Section 480.046(1)(c), Florida Statutes. By letter dated December 15, 1994, Petitioner, through his counsel, requested a formal hearing.

On March 1, 1995, the matter was referred to the Division of Administrative Hearings.

At the hearing, Petitioner testified in his own behalf and presented one

(1) exhibit to be entered into evidence to which Respondent objected. Ruling was reserved on the admissibility of Petitioner's exhibit, and the parties were directed to present written argument on the issue of its admissibility. Having considered the arguments of counsel, Petitioner's exhibit is ruled inadmissible and all testimony regarding the exhibit is not considered in reaching a determination in this case. Also, at the hearing, Respondent presented the testimony of two witnesses (Petitioner and an expert) and entered one (1) composite exhibit into evidence.

A transcript of the hearing was ordered. The parties filed proposed findings of fact which have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On or about September 22, 1994, Byron Charles Todaro (Petitioner) filed an application for licensure as a massage therapist by examination with the Department of Business and Professional Regulation, Board of Massage (Respondent). On the application, Petitioner responded "yes" to the question that asked, in pertinent part, if he had "ever been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction", excluding parking and speeding tickets, with a plea of nolo contendere being considered a conviction.

   
   

2. On or about September 7, 1982, Petitioner pled guilty to possession of a controlled substance (methaqualone) in the Circuit Court of Orange County, Florida. The court withheld adjudication and imposed a fine. Also, in 1982, Petitioner pled guilty to driving under the influence/unlawful blood alcohol level and careless driving.

   
   

3. On or about May 22, 1987, in the Circuit Court of Broward County, Florida, Petitioner pled guilty to driving while his license was suspended. The court adjudged him guilty and, among other things, placed Petitioner on one (1) year probation and ordered him to participate in and successfully complete a drug evaluation and rehabilitation program. On or about March 3, 1988, the court vacated the adjudication and adjudication was withheld.

   
   

4. On or about May 26, 1989, Petitioner pled guilty to a four-count criminal offense in the Circuit Court of Broward County, Florida: Count I - possession of cocaine; Count II - possession of a controlled substance; Count III - possession of drug paraphernalia; and Count IV - possession of cannabis. As to Counts I and II, the court withheld adjudication and, among other things, imposed a 3-year probation and drug evaluation and treatment. As to Counts III and IV, the court, among other things, adjudicated Petitioner guilty.

   
   

5. On or about November 25, 1992, in the Circuit Court of Broward County, Florida, Petitioner pled nolo contendere to a five-count criminal offense:

   Count I - possession of a controlled substance (diazepam); Count II - possession of cannabis; Count III - possession of drug paraphernalia; Count IV - fleeing a police officer; and Count V - reckless driving. Regarding Counts I, II, and IV, the court, among other things, withheld adjudication and imposed a five (5) year and one (1) year drug offender probation (running concurrently). Regarding Counts III and V, the court, among other things, adjudicated Petitioner guilty. Furthermore, the court ordered an evaluation and random urinalysis.

6. Less than one (1) year later, on or about July 20, 1993, in the Circuit Court of Broward County, Florida, Petitioner pled nolo contendere to a two-count criminal offense: Count I - possession of cocaine with intent to deliver; and Count II - possession of a controlled substance. The court, among other things, withheld adjudication, placed Petitioner on 4 1/2 years of probation, and ordered Petitioner to attend and complete Concept House, followed by Broward Alcohol Recovery Center (BARC) and random urinalysis.

   
   

7. The Concept House provides an inpatient drug rehabilitation program. Petitioner had voluntarily begun treatment at the Concept House in June 1993 and the court made it a mandatory part of his probation. Petitioner attended Concept House for six months. For the first three months, Petitioner had to remain at the Concept House, and for the last three months, he was allowed to leave only to seek employment or receive training but returned to the Concept House in the evenings. In December, 1993, Petitioner successfully completed the program at the Concept House. During his treatment at the Concept House, Petitioner was consistently tested by the Concept House, and no test was positive.

   
   

8. BARC is an outpatient alcohol abuse program. Petitioner is currently attending BARC. Petitioner's probation officer supervises his treatment at BARC. Petitioner receives weekly drug testing at BARC. No test has been positive.

   
   

9. In addition to the weekly testing at BARC, Petitioner receives a monthly urinalysis as part of his probation. No test has been positive.

   
   

10. Petitioner received vocational rehabilitation training through the Concept House, and through this training, it was determined that massage therapy was a field which he could pursue. The Concept House funded Petitioner's schooling for massage therapy.

    
    

11. On or about January 11, 1994, Petitioner entered the therapeutic massage training program at the Florida Institute. He successfully completed the program on or about June 14, 1994, with a scholastic average of 91.55 percent, using a grading scale of 100 percent.

    
    

12. Petitioner's probation officer assisted him in getting admitted to the Florida Institute.

    
    

13. Petitioner's drug cases involve personal use and consumption, not the sale or trafficking of drugs or conspiracy to sell or traffic in drugs.

    
    

14. Petitioner has been drug free for almost 2 years.

    
    

15. Petitioner's current probation is scheduled to end in 1998. He has applied to the court for early termination.

    
    

16. Petitioner presented letters of recommendation from his probation officer who has contact with Petitioner on at least a monthly basis regarding his drug abuse and from his vocational rehabilitation counselor employed with the Florida Department of Labor and Employment Security.

    
    

17. The practice of massage involves a great degree of trust between the client and the practitioner. For a massage, a client disrobes to a point of comfort for the client, and in certain instances completely disrobes, and,

    therefore, a client must feel that he/she can trust the practitioner. The trust is both physical and psychological.

    
    

18. Accompanying the trust is a high level of responsibility for the massage therapist who must guard and protect that trust. An applicant for licensure must demonstrate that he/she possesses that level of responsibility necessary to practice massage.

    
    

19. Massage is a part of health care, being placed under the responsibility of the Division of Medical Quality Assurance of the Department of Business and Professional Regulation. A substantial number of massage therapists (25 percent to 30 percent) are employed in medical areas such as physical therapy centers, hospitals and doctor's offices.

    
    

20. Petitioner has no desire to work in a medical area and has been offered a position in a health spa upon licensure by Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

21. 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.

    
    

22. Petitioner bears the burden of showing that he is eligible to be licensed as a massage therapist by examination. Florida Department of Transportation v. J. W. C. Company, 396 So. 2d 778 (Fla 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

    
    

23. Petitioner has met all the qualifications for licensure, except for taking and passing the massage therapist examination. Subsection 480.041(1), Florida Statutes (Supp. 1994).

    
    

24. Applicants for licensure by examination are subject to the provisions of Section 480.046(1), Florida Statutes. Subsection 480.041(2), Florida Statutes (Supp. 1994).

    
    

25. Section 480.046, Florida Statutes, provides in pertinent part:

    
    

    1. The following acts shall constitute grounds for which disciplinary actions . . . may be taken against a massage therapist or massage establishment licensed under this act:

       * * *

       (c) 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. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter.

       * * *

    2. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       (a) Refusal to license an applicant.

26. At three different times (on or about September 7, 1982, on or about May 22, 1987, and on or about May 26, 1989), Petitioner pled guilty to certain criminal offenses. At two other times (on or about November 25, 1992, and on or about July 20, 1993), Petitioner pled nolo contendere to certain criminal offenses.

    
    

27. Petitioner's nolo contendere pleas are convictions, as defined by Subsection 480.046(1)(c), Florida Statutes. Petitioner's plea of nolo contendere raises a rebuttable presumption that he has been found guilty or convicted of the crimes; however, he is entitled to an opportunity to try to rebut the presumption. Ayala v. Department of Professional Regulation, 478 So. 2d 1116 (Fla. 1st DCA 1985). At hearing, Petitioner did not present any evidence in his behalf of his innocence, thereby, not rebutting the presumption.

    
    

28. The Florida Legislature has determined that the practice of massage is potentially dangerous to the public and that regulation of the practice of massage is, therefore, necessary to protect the public health, safety, and welfare. Section 480.032, Florida Statutes.

    
    

29. Petitioner failed to demonstrate that his convictions, as defined by Subsection 480.046(1)(c), Florida Statutes, do not relate to his ability to practice massage. Respondent contends that the convictions relate to Petitioner's ability to practice massage.

    
    

30. Moreover, Petitioner's convictions relate to his ability to practice massage even though the convictions do not relate to the technical ability to practice massage or do not arise out of misconduct in the office setting. Rush

    v. Department of Professional Regulation, Board of Podiatry, 448 So. 2d 26 (Fla. 1st DCA 1984) (Podiatrist's conviction of conspiracy to possess and import marijuana relates to his ability to practice podiatry.); Ashe v. Department of Professional Regulation, Board of Accountancy, 467 So. 2d 814 (Fla. 5th DCA 1985) (Accountant's conviction of fraud by wire and intrastate transportation of false and forged securities relates to his ability to practice accounting.)

    
    

31. If an applicant is found to have violated Subsection 480.046(1)(c), Florida Statutes, Respondent may refuse to license the applicant. The use of discretion by a regulatory agency was addressed by the Florida Supreme Court in Astral Liquors, Inc. v. Department of Professional Regulation, 463 So. 2d 1130, 1132 (Fla. 1985):

    
    

    Discretionary authority is necessary for agencies involved in the issuance of licenses and the determination of fitness of applicants for licenses. [Citations Omitted] . . . This

    discretionary authority is particularly necessary where an agency regulates "occupations which are practiced by privilege rather than by right and which are potentially injurious to the public welfare." [Citations Omitted] . . . That does not mean, however, that the discretion exercised by the agency is unchecked. We emphasize that discretionary agency action must be subject to judicial review to determine whether it meets

    the standard of reasonableness. [Citation Omitted]

32. Petitioner failed to demonstrate that Respondent was unreasonable in denying him licensure by examination. The crimes for which Petitioner was convicted or found guilty, which spanned approximately ten years and numbered thirteen, were alcohol and/or drug abuse related. Seven of the crimes were committed recently (five in November 1992 and two in July 1993) and in less than the span of a year. For the seven crimes, Petitioner is currently on probation which is scheduled to end in 1998, and as a condition of probation, receives outpatient rehabilitative treatment and weekly and monthly urinalysis. Respondent has been given the duty to protect the public health, safety, and welfare in the practice of massage. Petitioner's successful completion of probation would provide evidence of him possessing that level of responsibility needed for the trust between a client and a massage therapist. Since Petitioner has not completed his probation, it is not unreasonable for Respondent to deny Petitioner licensure by examination at this time.

    
    

33. As an alternative, Respondent has the option of issuing Petitioner a provisional license to practice massage, pursuant to Subsection 480.041(4), Florida Statutes (Supp. 1994), which would provide for supervision of Petitioner. Such supervision may be reasonable to protect the public health, safety, and welfare and at the same time, allow Petitioner to practice massage.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage enter a final order DENYING Byron

Charles Todaro licensure as a massage therapist by examination.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of September 1995.

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 29th day of September 1995.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner

1. Rejected as being unnecessary as a finding of fact since no issue of standing exists.

2-4. Rejected as being unnecessary as a finding of fact.

1. Rejected as being unnecessary, or argument.

2. a. Partially accepted in finding of fact 5.

b. Partially accepted in finding of fact 6.

c-f. Rejected as being argument, or conclusions of law.

1. Rejected as being contrary to the evidence. Petitioner admitted that he was currently on probation.

2. Partially accepted in finding of fact 17.

i-j. Partially accepted in finding of fact 16.

k-l. Rejected as being argument, or conclusion of law. m-n. Rejected as being unnecessary.

1. Partially accepted in finding of fact 14.

2. Partially accepted in findings of fact 6 and 7.

3. Partially accepted in finding of fact 7.

4. Partially accepted in findings of fact 6, 8, 9, 15 and 16.

5. Rejected as being argument, or conclusion of law.

6. See Preliminary Statement

7. Partially accepted in finding of fact 16.

8. Partially accepted in findings of fact 10 and 11.

9. Rejected as being unnecessary.

10. Partially accepted in finding of fact 20.

11. Partially accepted in findings of fact 7, 8, 9 and 14.

    
    

    Respondent

    
    

    1. Partially accepted in finding of fact 1.

    2 and 3. Partially accepted in finding of fact 2.

    1. Partially accepted in finding of fact 3.

    2. Partially accepted in finding of fact 4.

    3. Rejected as being unnecessary, or irrelevant.

    4. Partially accepted in finding of fact 5.

    5. Partially accepted in finding of fact 6.

    6. Partially accepted in finding of fact 15.

    7. Rejected as being argument, or conclusion of law.

    8. a. Rejected as being argument, or conclusion of law.

    1. Partially accepted in finding of fact 19.

    2. Partially accepted in finding of fact 17.

    3. Rejected as being argument, or conclusion of law.

NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence, argument, or conclusion of law.

COPIES FURNISHED:

Ms. Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Center

1940 N. Monroe Street Tallahassee, Florida 32399-0062

Roger S. Elkind, Esquire

2903 Salzedo Street, Suite 100 Coral Gables, Florida 33134-6618

Lee Ann Gustafson

M. Catherine Lannon Assisant Attorneys General Administrative Law

The Capitol, PL-01

Tallahassee, Florida 32399-1050

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: 95-000953

Orders for Case No: 95-000953