STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MASSAGE THERAPY, )

)

Petitioner, )

)

vs. )

)

MIODRAG VISACKI, LMT, )

)

Respondent. )

Case No. 01-2257PL

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 7, 2001, in Sarasota, Florida, before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gary. L. Asbell, Esquire

Lori C. Desnick, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Ft. Knox Building 3, Mail Station 39 Tallahassee, Florida 32308

For Respondent: no appearance

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1) and (3), Florida Administrative Code, by engaging in sexual misconduct with a massage client, and thereby violated Section

480.046(1(k), Florida Statutes; and, if yes, what penalty should be imposed on his license to practice massage therapy.

PRELIMINARY STATEMENT

On March 27, 2001, Petitioner, the Department of Health, Board of Massage Therapy (Department), filed an Administrative Complaint against Respondent, Miodrag Visacki, alleging that he committed sexual misconduct by engaging in or attempting to engage in sexual activity with a massage client. The Administrative Complaint alleges that by such conduct, Respondent has violated Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1) and (3), Florida Administrative Code, and thereby, violated Section 480.046(1)(k), Florida Statutes.

In the Department's Election of Rights form, Respondent denied the allegations in the Administrative Complaint and requested a formal hearing. On that form, Respondent also indicated that the massage therapy license number referred to in the Administrative Complaint as being his license number was incorrect. On May 24, 2001, the Department issued an Amended Administrative Complaint which was identical to the Administrative Complaint, except that it corrected Respondent's license number. The matter was referred to the Division of Administrative Hearings on June 7, 2001, and this proceeding followed.

Pursuant to Petitioner's Motion for Official Recognition filed July 31, 2001, and Petitioner's ore tenus Motion for Official Recognition made at the hearing, the undersigned took official recognition of Chapters 20 and 480, Florida Statutes (2000), Chapter 456, formerly Chapter 455, Florida Statutes (2000), and Rule Chapter 64B7, Florida Administrative Code.

At hearing, the Department presented the testimony of Herbert Clifford Anderson, Jr., an investigator with the Agency for Health Care Administration; Christina Roberts, a lieutenant detective with the Longboat Key Police Department; Heidi Micale, an officer with the Longboat Key Police Department; and A. R., a former massage client of Respondent. The Department offered and had three exhibits received into evidence. Respondent failed to appear at hearing, and no testimony or evidence was presented on his behalf.

A Transcript of the proceeding was filed on

August 17, 2001. The Department timely filed its Proposed Recommended Order on August 17, 2001. Respondent did not file any post-hearing proposals.

FINDINGS OF FACT

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

2. Respondent, Miodrag Visacki (Respondent), was at all times material hereto, a licensed massage therapist in the State of Florida, having been issued license number MA23741.

3. A. R. is a female who resides in Rhode Island. At the times material to this proceeding, A. R. was 18 years old and was on vacation with members of her family in Florida. During this vacation, A. R. and her family were staying in a condominium unit at the Long Boat Key Resort in Longboat Key, Florida.

4. While on vacation in Longboat Key, Florida, A. R. and her aunt decided to obtain massages. They looked at advertisements for massage therapy in the newspaper, and then called telephone numbers listed in several different advertisements. After calling several of the telephone numbers,

   A. R. and her aunt decided to order massage services from one of the advertisements. On April 21, 2000, A. R.'s aunt called the number listed in one of the advertisements to set up appointments for April 22, 2000.

5. On April 22, 2000, Respondent went to the condominium unit in which A. R. and her aunt and parents were staying to perform the massages. When Respondent arrived there, he identified himself as Michael.

6. Prior to beginning the massages, Respondent requested that A. R. and her aunt fill out client intake forms that

   elicited information about the purpose or the reason for the massage, the "areas requiring specific attention," and the "areas preferred not to be worked on."

7. On the client intake form, A. R. indicated that she wanted a relaxation massage. With regard to areas requiring special attention, A. R. noted, "legs, neck, and back." A. R. indicated that the areas she preferred not to be worked on were her face and head.

8. Respondent set his table up in the living room of the condominium unit and began the massage of A. R. When Respondent began the massage, A. R.'s aunt was in the kitchen, which was adjacent to the living room. Soon after Respondent began with the massage of A. R., her aunt left the kitchen and went to a bedroom in the condominium unit.

9. At the beginning of her massage, A. R. was wearing a bra and her underwear, was lying on her back, and was covered by a sheet.

10. Approximately 15 minutes after the massage began and after A. R.'s aunt left the kitchen and went to one of the bedrooms, Respondent pulled down A. R.'s bra and proceeded to massage her breasts and nipples. Respondent then asked A. R. if she enjoyed his massaging her breast and nipples to which she responded "no."

11. After A. R. told Respondent that she did not want him to massage her breasts and nipples, he began massaging her ankles, working his way up her legs, vagina, and stomach.

12. Respondent removed A. R.'s underwear during the massage although he never asked for her permission to do so and she never consented to his doing so.

13. In an attempt to stop Respondent from massaging her vagina, A. R. turned over on her stomach. While A. R. was laying on her stomach, Respondent penetrated A. R.'s vagina and anus with his finger while alternately massaging her back, shoulders, and buttocks.

14. During A. R.'s massage, two sheets were used to cover her. Throughout the massage, A. R. was covered from the waist up by one of the sheets. However, Respondent continually moved or adjusted the sheet that was to cover A. R. from the waist down so that it was "half on, half off."

15. At no time prior to or during the massage did A. R. give her consent to Respondent to remove the sheet draping her body so as to expose her buttocks and genitalia.

16. When Respondent finished the massage of A. R., she spoke to her aunt briefly and indicated that something was wrong, but she did not reveal the full details of what had occurred during the massage.

17. Respondent then proceeded to massage A. R.'s aunt.

    
    

    While her aunt was receiving her massage, A. R. went to the bathroom, washed up, changed, and waited for Respondent to finish her aunt's massage.

18. A. R. was in "total confusion" and after Respondent completed her aunt's massage, A. R. urged her to pay Respondent so he could leave the condominium.

19. After Respondent left the condominium, A. R. divulged to her aunt some, but not all, of the details of what had occurred during the massage.

20. A. R. and her aunt then left the condominium and went to the nearby beach area where A. R.'s parents were and informed them about what had occurred during the massage.

21. A. R.'s mother immediately called the Longboat Key Police Department and police officers were dispatched to the condominium that day.

22. When Officer Heidi Blake Micale arrived at the condominium, A. R. confided in and reported to her the conduct engaged in by Respondent during the massage.

23. As part of its investigation of the April 22, 2000, incident, the Longboat Key Police Department contacted Respondent and scheduled an interview with him. On April 24, 2000, Lieutenant Detective Christina Roberts interviewed Respondent regarding the incident. During the interview,

    Respondent admitted to massaging A. R.'s breasts, including the nipple area. As justification, in explaining his actions, Respondent indicated that he massaged A. R.'s breasts because they were not listed on the intake form as one of the "areas preferred not to be worked on." As evidence of this, Respondent provided Lieutenant Detective Roberts with a copy of the intake form that A. R. had completed prior to the massage.

24. Prior to her encounter with Respondent, and while in Rhode Island, A. R. had received numerous massages for sports related injuries and she continues to receive such massages. However, A. R. has never encountered sexual conduct by any massage therapist other than Respondent.

25. Respondent's actions with regard to massaging

    
    

    A. R.'s breasts and/or nipples may or were likely to cause erotic arousal. Furthermore, this conduct by Respondent constitutes sexual activity and is outside the scope of the practice of massage.

26. Respondent's actions of penetrating A. R.'s vagina and anus may or were likely to cause erotic arousal. This conduct by Respondent constitutes sexual activity and is outside the scope of the practice of massage.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the subject matter and of the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

28. Section 480.046(2), Florida Statutes, empowers the Board of Massage Therapy to revoke, suspend, or otherwise discipline the license of a massage therapist who is found guilty of any one of the acts enumerated in Section 480.046(1), Florida Statutes.

29. The Amended Administrative Complaint in this case alleges the Respondent violated Section 480.046(1)(k), Florida Statutes, by engaging or attempting to engage a massage client in sexual activity in violation of Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1) and (3), Florida Administrative Code.

30. Subsection 480.046(1)(k), Florida Statutes, provides the following:

    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.

31. Section 480.0485, Florida Statutes, which prohibits sexual misconduct in the practice of massage therapy, provides the following:

    The massage therapist-patient relationship is founded on mutual trust. Sexual misconduct in the practice of massage therapy means violation of the massage therapist-patient relationship through which the massage therapist uses that relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of massage therapy is prohibited.

    
    

32. Section 64B7-26.010(1),(3),(4), Florida Administrative Code, provides in pertinent part:

    1. Sexual activity by any person or persons in any massage establishment is absolutely prohibited.

       
       

       * * *

       
       

       1. 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.

       2. 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.

33. "Establishment" is defined at Section 480.033(7), Florida Statutes, as "a site or premises, or portion thereof, wherein a massage therapist practices massage."

34. In a license disciplinary proceeding such as this, the Department has the burden of proof. To prevail in this proceeding, the Department must establish by clear and convincing evidence that Respondent committed the acts alleged in the Amended Administrative Complaint. Ferris v. Turlington,

    510 So. 2d 392 (Fla. 1987). In this case, the Department has met its burden of proof.

35. The clear and convincing evidence established that Respondent violated Subsection 480.046(1)(k), Florida Statutes, Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1) and (3), Florida Administrative Code, by engaging in sexual activity within the meaning of Rule 64B7-26.010(4), Florida Administrative Code. Here, the evidence established that while massaging A. R., Respondent massaged her nipples and penetrated her vagina and anus with his finger. This physical contact, engaged in by Respondent, was intended to erotically stimulate either the client and/or himself or was likely to cause such stimulation.

36. Respondent used the client/patient therapist relationship to engage in and attempt to engage the client in sexual activity. The physical contact engaged in by Respondent

constitutes sexual misconduct and is expressly prohibited by Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1), Florida Administrative Code. This conduct is also outside the scope of massage therapy practice.

37. Rule 64B7-30.002(1),(2),(3), and (4), Florida

Administrative Code, authorizes disciplinary action including a fine of $1,000.00 and revocation of Respondent's massage therapist license for a violation of Section 480.0485, Florida Statutes.

38. Section 456.072(4), Florida Statutes (2000), formerly 455.624(3), Florida Statutes (1999), authorizes the Board of Massage Therapy to assess the costs of the investigation and prosecution against Respondent should the Board find Respondent guilty of violating a provision of Chapter 480, Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that the Department of Health, Board of Massage Therapy enter a Final Order finding Respondent guilty of violating Subsection 480.046(1)(k), Florida Statutes, Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1) and (3), Florida Administrative Code; imposing a $1000.00 fine against

Respondent; and revoking Respondent's license to practice massage therapy.

DONE AND ENTERED this 18th day of September, 2001, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2001.

COPIES FURNISHED:

Miodrag Visacki

454 North Jefferson Avenue Sarasota, Florida 34237

Gary L. Asbell, Esquire Lori C. Desnick, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Ft. Knox Building 3, Mail Station 39 Tallahassee, Florida 32308

William H. Buckhalt, Executive Director Board of Massage Therapy

Department of Health 4052 Bald Cypress Way Bin C06

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

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: 01-002257PL

Orders for Case No: 01-002257PL