STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 97-5331

)

MORTON WEXLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 5, 1998, by video teleconference and on March 13, 1997, by telephonic conference, at West Palm Beach, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Craig A. McCarthy, Esquire

Agency for Health Care Administration Division of Medical Quality Assurance Post Office Box 14229

Tallahassee, Florida 32319-4229

For Respondent: Morton Wexler, pro se

171 South Hampton Drive Jupiter, Florida 33458

STATEMENT OF THE ISSUE

Whether Respondent violated Sections 480.46(1)(h),(k), Florida Statutes, and Rule 64B7-30.001(1)(d) (formerly 61G11- 30.001(1)(d), Florida Administrative Code, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 15, 1997, the Agency for Health Care Administration filed an Administrative Complaint against Respondent, Morton Wexler (Wexler), alleging that he violated Sections 480.46(1)(h), (k), Florida Statutes, and Rule

61G11-30.001(1)(d), Florida Administrative Code, by inappropriately touching a client's breasts. Wexler requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge.

The final hearing was commenced on March 5, 1998, by video teleconference and was reconvened by telephonic conference on March 13, 1998. At the final hearing, Petitioner, Department of Health, Board of Massage Therapy (Department), called C. C., Paul Price, and Darlene Heckelmoser Sanders. Petitioner's Exhibits 1, 2, 6, and 7 were admitted in evidence. Respondent

testified in his own behalf. Respondent's Exhibit 1 was admitted in evidence.

The parties stipulated to the facts contained in paragraphs 1-4 and 7 of the Administrative Complaint.

At the final hearing, the parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on March 27, 1998. On April 5, 1998, Respondent filed a request for extension of time to file proposed recommended orders. The request was granted,

and the time for filing proposed recommended orders was extended to May 4, 1998. The parties timely filed their proposed recommended orders. The parties' Proposed Recommended Orders were considered by the undersigned Administrative Law Judge in rendering this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Department of Health, Board of Massage Therapy (Department), is the state agency charged with regulating the practice of massage therapy pursuant to Chapter 480, Florida Statutes.

2. Respondent, Morton Wexler (Wexler), is and has been at all times material to this proceeding a licensed massage therapist in the State of Florida, having been issued license number MA 0021664.

3. In November, 1996, Wexler began working at Beauty Dynamics as a massage therapist. Wexler is 71 years old and has been blind since approximately 1990 due to glaucoma; however he can make out shapes and forms.

4. On or about, January 10, 1997, C. C. went to Beauty Dynamics to receive a massage.

5. Wexler was assigned to perform the massage on C. C. Wexler massaged the back of C. C.'s legs and arms and C. C.'s back. He asked C. C. to turn and lie on her back. A towel covered C. C.'s body from her shoulders to her feet. Wexler began to massage the back of her neck. C. C. told Wexler that

   she had a knot in her neck area and asked him to work on the knot. Instead of working on the knot, Wexler slipped his hands under the towel, down C. C.'s chest and touched her breasts.

   C. C. told him not to do that.

   
   

6. Wexler again put his hands on and around C. C.'s breasts, pinched her nipples, and moaned. At that juncture,

   C. C. pulled the towel up and told him to get out of the room. Wexler did not leave at that time. He apologized and said that he did not know what came over him. He said, "I couldn't help myself. I stopped being a massage therapist and became a man." Wexler still did not leave the room, but started to massage

   C. C.'s feet. C. C. got face to face with him and told him to get out.

7. Wexler went to his employer, Darlene Heckelmoser Sanders, and told her not to charge C. C. for the massage because there had been a misunderstanding. He did not fully explain the situation at that time. C. C. was not charged for the massage.

8. After C. C. left Beauty Dynamics, Wexler told Ms. Sanders that he had touched C. C.'s breasts. He explained that the towel fell off, exposing C. C.'s breasts and that he could not help himself. He told her, "I guess I became a man instead of a massage therapist."

9. Later in the day, C. C. called Ms. Sanders and told Ms. Sanders that Wexler had touched her breasts, squeezed her nipples and moaned.

10. Ms. Sanders terminated Wexler's employment with Beauty Dynamics.

11. At the final hearing, Wexler acknowledged that it was not appropriate for a massage therapist to touch the erectile tissue of a client, including the client's nipples.

    CONCLUSIONS OF LAW

    
    

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

13. The Department has the burden to establish by clear and convincing evidence that Wexler is guilty of the alleged violations. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. The Department has alleged that Wexler violated Sections 480.046(1)(h), (k), Florida Statutes, which provide:

    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:

       
       

       * * *

       
       

       (h) Gross or repeated malpractice or the failure to practice massage with that level of care, skill, and treatment which is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumstances.

       
       

       * * *

       
       

       (k) Violating any provision of this chapter, a rule of the board or department, 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.

       
       

15. The Department has also alleged that Wexler violated Rule 61G11-30.001(1)(d) (now 64B7-30.001(1)(d)), Florida Administrative Code, which provides:

    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:

       
       

       * * *

       
       

       (d) 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 a free, full and informed consent to sexual activity with his or her massage therapist.

       
       

16. The Department has proved by clear and convincing evidence that Wexler attempted to engage C.C. in sexual activity by touching her breasts and nipples in a sexual manner without her consent. Wexler is guilty of violating Sections 480.046(1)(h) and (k), Florida Statutes, and Rule 64B7- 30.001(1)(d), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Morton Wexler guilty of violating Sections 480.046(1)(h), (k), Florida Statutes, and Rule 64B7-30.001(1)(d), Florida Administrative Code, and suspending his massage therapist license for two years.

DONE AND ENTERED this 8th day of May, 1998, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

COPIES FURNISHED:

Joe Baker, Executive Director Board of Massage Therapy Department of Health

1940 North Monroe Street

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1998.

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6, Room 136

Tallahassee, Florida 32399-0700

Craig A. McCarthy, Esquire

Agency for Health Care Administration Division of Medical Quality Assurance Post Office Box 14229

Tallahassee, Florida 32319-4229

Morton Wexler, pro se

171 South Hampton Drive Jupiter, Florida 33458

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: 97-005331

Orders for Case No: 97-005331