STATE OF FLORIDA BOARD OF MASSAGE THERAPY 03 HAY 29 PH 4: 96 DEPARTMENT OF HEALTH, ADM Petitioner, vs. Case No. 02-23688 CEDARWOODS DAY SPA, O3- DOW Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW Petitioner, Department of Health, (hereinafter “Petitioner”) by and through its undersigned and files its Administrative Complaint against Respondent, CEDARWOODS DAY SPA (hereinafter “Respondent’) and alleges: NATURE OF THE ACTION 1. This is an action to impose administrative penalties related to the investigation and prosecution of the allegations against Respondent pursuant to Sections 456.072 and 480.046, Florida Statutes. JURISDICTION AND VENUE 2. This tribunal has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes. 3. Venue shall be determined pursuant to Rule 28-106.207, Fla. Admin. Code. RECEIVED FEB 1 § 2003 ADMINISTRATIVE LAW PARTIES 4. Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of MASSAGE THERAPY pursuant to Section 20.43, Florida Statutes, and Chapters 456’ and 480, Florida Statutes. 5. At all times material hereto Respondent has been licensed as a massage establishment, having been issued license number MM10779 on February 16, 2001. 6. Respondent's last known address is 9125 Taft Street, Pembroke Pines FL 33024. COUNT | 7. Onor about September 4, 2002, Petitioner's inspector conducted a routine annual inspection of Respondent's premises. 8. Matilda Gomez (hereinafter “Gomez”) was employed by Respondent. 9. Gomez is licensed by the Board of Cosmetology as a “Full Specialist,” license number 2309. Matilda Gomez was not licensed as a massage therapist in the State of Florida on the date of the inspection. 10. On the date of the inspection, Gomez was in a room furnished with a massage table. A man was lying unclothed on the massage table with a towel across his midsection. Gomez’ hands and arms were covered with lotion. 11. Gomez stated that she was performing a “falacial” on the man, which is the massaging of the head and shoulders. ‘Formerly Chapter 455, Part Il; see Chapter 2000-160, Laws of Florida. 2 12. Paula Guillen, owner of Respondent establishment stated that Gomez was providing a “back cure treatment facial.” This treatment includes the shoulder, neck and back and involves applying a cleansing cream, applying an exfolliator using “rotative movements,” applying toner, applying vitamin E to the back “using slow movements.” 13. Section 477.013, Florida Statutes, defines various specialities that may be performed pursuant to a license issued by the Board of Cosmetology. a. The specialty of “facials” is the massaging or treatment of the face and scalp. Section 477.013(6)(c). b. “Body wrapping’ is a treatment using herbal wraps to clean and beautify the skin, but does not include the application of oils, lotions, or other fluids to the body, except fluids contained in presoaked wraps, and does not include manipulation of the body’s superficial tissue, other than that arising from compression emanating from the wraps. Section 477.013(12). c. “Skin care services’ includes the treatment of the skin of the body other than the head, face and scalp, by the use of a sponge, brush, cloth or similar device to apply or remove a chemical preparation or other substance. “Skin care services” may not include massage through the manipulation of superficial tissue. Section 477.013(13). 14. Gomez was manipulating the soft tissue of the customer on the premises on the date of inspection, and was therefore performing massage therapy. 15. Section 480.047(1)(c), Florida Statutes, provides that it is unlawful to permit an employed person to practice massage therapy unless duly licensed under Chapter 480. 16. Respondent violated Section 480.046(1)({o), Florida Statutes which provides that the Board of Massage Therapy may take action against the license of any licensee who violates any provision of Chapter 480, Chapter 456, or any rules adopted pursuant thereto, by violating Section 480.047(1)(c), Florida Statutes. COUNT Il 17. Petitioner realleges and incorporates by reference the allegations in paragraphs 7 through 14 above. 18. Section 480.046(1)(e), Florida Statutes, provides that the Board of Massage Therapy may take action against the license of any licensee that aids, assists, procures, or advises any unlicensed person to practice massage therapy contrary to the provisions of Chapter 480 or the rules of the Department or the Board. 49. Respondent violated Section 480.046(1)(e), Florida Statutes by employing an unlicensed person to practice massage therapy. COUNT lil 20. Petitioner realleges and incorporates by reference the allegations of paragraphs 7 through 14 above. 21. Section 480.046(1)(j), Florida Statutes, provides that the Board of Massage Therapy may take action against any licensee that delegates professional responsibilities to a person whom the licensee knows is not qualified by training, experience or licensure to perform. 22. Respondent violated Section 480.046(1)(j) by delegating the performance of massage therapy to an unlicensed person. CLAIM FOR RELIEF WHEREFORE, Petitioner respectfully requests the BOARD OF MASSAGE THERAPY to enter an order imposing one or more of the following penalties pursuant to Section 456.072, Florida Statutes and Rule64B7-30.002, Florida Administrative Code: a. Revocation or suspension of Respondent's license; b. Restriction of Respondent's practice; c. An administrative fine; d. A reprimand; e. Probation; and/or f. Any other penalty the Board deems appropriate. Dated this 7 day of fekev aon , 2003 Respectfully submitted, 9) CHARLES J. CRIST, JR. - Dw Attorney General Sy oe cate Brian Stabfey EZ Oo Senior Assistant Attorney General Department of Legal Affairs PL-01 The Capitol Tallahassee, Florida 32399-1050 (850) 414-3300 PCP: Harrison, Quiring DATE: January 28, 2003 SP NOTICE OF HEARING RIGHTS AND ASSESSMENT OF COSTS Oot ets 0} RESPONDENT IS HEREBY NOTIFIED THAT HE/SHE HAS i RIGHT _ REQUEST AN ADMINISTRATIVE HEARING PURSUANT TO SECTIONS 569, )AND \- 120.57, FLORIDA STATUTES. SPECIFIC OPTIONS FOR ADMINISTRATIVE ACTION » ARE SET OUT IN THE ATTACHED EXPLANATION OF RIGHTS. ALL REQUESTS FOR HEARING MUST BE MADE WITHIN 21 DAYS OF RECEIPT AND SENT TO BRIAN STABLEY, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, PL-01 THE CAPITOL, TALLAHASSEE, FLORIDA 32399-1050. MEDIATION IS NOT AVAILABLE TO RESOLVE THIS COMPLAINT. RESPONDENT IS PLACED ON NOTICE THAT PETITIONER HAS INCURRED COSTS RELATED TO THE INVESTIGATION AND PROSECUTION OF THIS MATTER. PURSUANT TO SECTION 456.072(4), FLORIDA STATUTES, THE BOARD SHALL ASSESS COSTS RELATED TO THE INVESTIGATION AND PROSECUTION OF A DISCIPLINARY MATTER, WHICH MAY INCLUDE ATTORNEY HOURS AND COSTS, ON THE RESPONDENT IN ADDITION TO ANY OTHER DISCIPLINE IMPOSED. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy has been served by certified mail this LZ day of fz bwacs , 2003 to: CEDARWOODS DAY SPA 9125 Taft Street, Pembrook Pines FL 33024 and Michael G. Petit, 19 West Flagler Street, Suite 707, Miami Brian J. eZ Assistant Attorney General FL 33130.

Docket for Case No: 03-002016