STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5311

)

MAURICE BATTISTA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Administrative Law Judge, Carolyn S. Holifield, held a formal hearing in this case on February 28, 1997, in Largo, Florida.

APPEARANCES

For Petitioner: Ruby Seymour-Barr, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399

For Respondent: Albert P. Lima, Esquire

Lima and Associates 620 Twiggs Street

Tampa, Florida 32602 STATEMENT OF THE ISSUE

Whether Respondent violated Sections 480.046(1)(k), Florida Statutes, and, if so, what penalty should be imposed on his license to practice massage therapy.

PRELIMINARY STATEMENT

On August 15, 1996, Petitioner, the Department of Business and Professional Regulation, Board of Massage Therapy (Board), filed an Administrative Complaint against Respondent, Maurice Battista (Respondent), alleging in two counts that he violated Section 480.046(1)(k), Florida Statutes. Specifically, Petitioner alleged that Respondent: (1) removed the covering from a client's breasts during a massage in violation of Rule 61G11- 26.008(2), Florida Administrative Code, and (2) touched the client's right breast after the covering was removed in violation of 6G11-26.010(2), Florida Administrative Code. Respondent denied the allegations and timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings on November 8, 1996, and this proceeding followed.

At hearing, Petitioner presented the testimony of two witnesses: Anne Orlando, the Complainant (Complainant), and Deborah Karlan, an expert in the areas of medical massage and relaxation massage. Petitioner offered and had admitted into evidence one exhibit. Respondent testified on his own behalf and had one exhibit admitted into evidence.

A transcript of the proceeding was filed on March 19, 1997. At the request of the parties, the time set for filing proposed findings of fact and conclusions of law was set for more than ten days after the transcript was filed. Both parties timely filed proposed recommended orders under the extended time frame.

FINDINGS OF FACT

1. At all times relevant to this proceeding, and since 1983, Respondent has been a licensed massage therapist in the State of Florida, having been issued License Number MA 0004592.

2. At all times relevant to this proceeding, Respondent was employed as a massage therapist by Health Matters, located in Clearwater, Florida.

3. Respondent has received training in several areas of massage technique including the following: postural integration; deep tisssue therapy combined with acupressure techniques; craniosacral massage; chi kung body movement awareness; myofascial release therapy; corrective body massage; and management of low back pain.

4. Respondent specializes in postural integration massage and, typically, this is the kind of massage he performs. This type of massage involves deep tissue therapy combined with acupressure techniques.

5. On August 28, 1995, the Complainant called Health Matters to schedule an appointment. When she telephoned the facility, the Complainant indicated that she wanted a relaxation massage. On August 30, 1995, the Complainant went to Health Matters for her scheduled appointment. When she arrived at the facility, the Complainant was asked to complete a medical history form. On the form, the Complainant indicated the areas of her body which were in pain. Also, on the employment portion of the

   form, Complainant noted that she was a massage therapist. As of August 30, 1995, the Complainant had worked as a massage therapist for about four months.

6. After completing the form, the Complainant went to the room where the massage was to be given and met Respondent. Prior to this time, the Complainant had never been to Health Matters and did not know Respondent. At some point prior to Respondent's beginning the massage, the Complainant told Respondent that she was a licensed massage therapist.

7. Prior to beginning the Complainant's massage, Respondent provided her with a clean towel with which to drape herself after she undressed herself. After instructing the Complainant on how to drape herself with the towel, Respondent left the room while the Complainant undressed and draped herself in preparation for the massage. Respondent returned to the room a few minutes later and knocked on the door. After the Complainant indicated that she was undressed and draped, the Respondent entered the room to begin the massage.

8. Prior to performing Complainant's massage, Respondent informed her that he would be performing a postural integration massage. Although the Complainant was unfamiliar with this type of massage, at no time prior to, during or after the massage did she tell Respondent that she did not want him to perform a postural integration massage. Neither did the Complainant tell Respondent that she wanted a Swedish relaxation massage.

9. During the postural integration massage, Respondent continuously spoke to the Complainant and explained the purpose of each of his postural integration massage movements. In explaining each of the steps, Respondent utilized and referred to a wall chart of the human anatomy displayed in the room.

10. The massage lasted between thirty and forty minutes. During the course of the massage, the Complainant remained draped except for a ten minute period when Respondent was working in the Complainant's upper thoracic area. Prior to beginning to work on the thoracic area, Respondent explained to the Complainant what he would be doing and the purpose and effect of the procedures. Also, Respondent pointed out on the human anatomy wall chart, the muscle groups, tendons, and ligaments on which he would be working. Finally, Respondent also told the Complainant that he would have to remove the towel to work in the thoracic area.

11. As he had indicated, prior to working on the Complainant's thoracic area, Respondent removed the towel that was draping Complainant’s breasts. The postural integration massage includes and involves the massage therapist performing certain penetrations to the pectoralis minor muscles and to the area under the breast tissue. These practices and procedures were consistent with Respondent's education and training in the area of postural integration massage and were implemented by Respondent when he performed the massage on the Complainant.

12. At no time during the massage, including the ten minute period when the breasts were undraped, did Respondent touch the Complainant's breasts in a sexual manner. The Respondent neither fondled her breasts nor touched her nipples. According to the Complainant, Respondent worked on the right side of her breast and then "did the same thing on the other side." During the time that Respondent was working on the Complainant's thoracic area, she never indicated to Respondent that she was uncomfortable when the drape was removed from her breasts or that she wanted the drape pulled up to cover her breasts.

13. After completing the work on the thoracic area, Respondent redraped Complainant’s breasts and completed the massage.

14. During various types of massages, it is sometimes necessary to work around the sternum area, or the perimeters of the breasts. While doing so, it is the practice of some therapists to work with a towel over that area and pull it down through the center and move it from side to side as necessary. Notwithstanding this practice by some therapists, a female's breasts may sometimes be undraped during a massage. The mere undraping of a breast during a massage, in and of itself, is not prohibited by law or rule and is not evidence of sexual activity.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this

    proceeding, pursuant to Section 120.57(1). Florida Statutes.

    
    

16. Pursuant to Sections 455.227 and 480.046, Florida Statutes, the Board of Massage Therapy is empowered to revoke, suspend, or otherwise discipline the license to practice massage of any massage therapist found guilty of the acts enumerated in Section 480.046, Florida Statutes, and Rule Chapter 61G11-26, Florida Administrative Code.

17. In a disciplinary action, the burden is on the Petitioner to establish the facts upon which its allegations of misconduct are based. Petitioner must prove its allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

18. The nature of clear and convincing evidence has been described as follows:

    . . . clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witness 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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    Solomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

19. In its Administrative Complaint, the Board alleges that Respondent violated certain administrative rules in violation of Section 480.046(1)(k), Florida Statutes. That section provides:

    1. The following acts shall constitute grounds for which disciplinary actions specified in subsection (2) may be taken against a massage therapist or massage establishment licensed under this act:

       
       

       (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.

       
       

20. Count I of the Administrative Complaint alleges that Respondent violated Rule 61G11-26.008(2), Florida Administrative Code, by removing the covering from the Complainant's breasts during a massage. That rule provision states:

    Before proceeding with a massage of a client, each massage therapist shall have explained expected draping techniques and provide the client a clean drape for the purpose of draping (in the case of a male client) his buttocks and genitalia and (in the case of a female client) her breasts, buttocks, and genitalia.

21. Count II of the Administrative Complaint alleges that Respondent violated Rule 61G11-26.010(2), Florida Administrative Code, by touching the Complainant's right breast during a massage. That rule provision states:

    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.

    
    

22. Petitioner has failed to meet its burden in this case. In order to establish a violation of Rule 61G11-26.008(2), Florida Administrative Code, as alleged in Count I of the

    Administrative Complaint, Petitioner must establish two elements. First, Petitioner must prove by clear and convincing evidence that prior to proceeding with the massage, Respondent failed to provide the Complainant with a clean drape. Next, Petitioner must establish by clear and convincing evidence that prior to the massage, Respondent failed to explain the expected draping procedures.

23. As to Count I, there was no evidence that Respondent failed to provide the Complainant with a clean drape. Rather, the testimony of both Respondent and the Complainant established that Respondent provided a clean drape to the Complainant before the massage began. Likewise, Petitioner failed to establish by clear and convincing evidence that Respondent did not explain the expected draping procedure to the Complainant.

24. Petitioner argues that Respondent's act of removing the drape from the Complainant's breasts is a violation of Rule 61G11-26.008(2), Florida Administrative Code. This position is not supported by the express language of the rule. Furthermore, the evidence adduced at hearing does not support the position that the undraping of a client's breasts alone violates any rule or statutory provision. In fact, Petitioner's own expert witness testified that there are instances when it is necessary to work around the perimeters of the breasts and that she has observed massages where a client's breasts are undraped. In light of the

    foregoing, Petitioner has failed to prove the allegations in Count I of the Administrative Complaint.

25. With regard to Count II, Petitioner has failed to meet its burden. Count II alleges that Respondent violated Rule 61G11-26.010(2), Florida Administrative Code, by touching the Complainant's right breast during the massage while it was uncovered. To establish a violation of this rule provision, it must be established that (1) Respondent was the owner of a massage establishment; and (2) Respondent engaged in sexual activity or permitted persons to engage in sexual activity in his establishment or used such establishment to make arrangements to engage in sexual activity at another place.

26. Clearly, the alleged violation of Rule 61G11-26.010 (2), Florida Administrative Code, applies only to owners of massage establishments. By it express terms, Rule 61G11- 26.010(2), Florida Administrative Code, prohibits the owner of such an establishment from engaging in sexual activity or allowing others to engage in sexual activity at the establishment. The rule also prohibits the owner from using or allowing others to use the establishment to make arrangements to engage in sexual activity at another place.

27. There was no evidence presented at hearing which established that Respondent was the owner of the massage establishment, Health Matters. Rather, the undisputed evidence was that Respondent was only an employee of the establishment.

    Having failed to establish that Respondent was the owner of Health Matters, Petitioner has not met its burden of proof as to the allegation in Count II of the Administrative Complaint.

28. Even if Petitioner had established that Respondent was the owner of Health Matters, the second element has not been proven. That element requires that Petitioner establish that Respondent engaged in conduct with the Complainant that constitutes sexual activity within the meaning of Rule 61G11- 26.010(4), Florida Administrative Code. That provision defines "sexual activity" as "any direct or indirect physical contact by any person or between persons which is intended to erotically stimulate either or both or which is likely to cause such stimulation. . . ." There was no evidence adduced at hearing that Respondent engaged in sexual activity with the Complainant.

29. Petitioner argues that even if Respondent is not owner of Health Matters, sexual activity at such establishments is absolutely prohibited. While it is true that the rules of the Board prohibit sexual activity by any person in a massage establishment, it is fundamental that disciplinary action with respect to a professional license is limited to offenses or facts alleged in the administrative complaint. Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987).

30. In this case, Respondent was charged under the subsection (2) of Rule 61G11-26.010, Florida Administrative Code, which applies solely to owners of massage establishments. It is Subsection (1) of this rule which prohibits sexual activity by any person in a massage establishment. However, in its Administrative Complaint, Petitioner did not charge Respondent with violating Subsection (1) of that rule.

31. Although sexual activity is "absolutely prohibited" by Board rules, it cannot be determined that Respondent violated a rule or law if such violation has not been alleged in the Administrative Complaint. In the instant case, if Respondent had been charged with violating Rule 61G11-26.010 (1), Florida Administrative Code, Petitioner would not have met its burden of proof in light of its failure to establish that Respondent engaged in sexual activity with the Complainant.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Business and Professional Regulation, Board of Massage Therapy enter a final order dismissing the Administrative Complaint and finding that Respondent, Maurice Battista, did not violate Section 480.046(1)(k), Florida Statutes, and Rules 61G11-26.008(2) and 61G11-26.010(2), Florida Administrative Code.

DONE and ENTERED this 6th day of June, 1997, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1997.

COPIES FURNISHED:

Ruby Seymour-Barr, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 33599

Albert P. Lima, Esquire Lima and Associates

620 Twiggs Street

Tampa, Florida 33602

Joe Baker Executive Director Board of Massage

Department of Business

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

Lynda L. Goodgame General Counsel Department of Business

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-005311

Orders for Case No: 96-005311