Oct 19 2010 15:31 OCT-19-2618 15:17 AHCA/LEGAL MEDICAL 856 414 1989 P.@3 STATE OF FLORIDA . DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, Petitioner, Vv. CASE NO. 2010-07987 . JAVIER ANTONIO BONILLA, L.M.T.,. Respondent. | ADMINISTRATIVE COMPLAINT COMES NOW, Petitioner, Department of Health (Department), by and. through its undersigned counsel, and files this Administrative Complaint before the Board of Massage Therapy against the Respondent, Javier. Antonio Bonilla, L.M.T., and in support thereof alleges: 1. Petitioner is the state department charged with regulating the practice of massage therapy pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 480, Florida Statutes. 2. At all times material to this order, Respondent was licensed as a massage therapist in the State of Florida, pursuant to Chapter 480, Florida Statutes, having been issued license number MA 33214 on or about May 7, 2001. 3:\PSU\Medical\ DICONCILIO\MASSAGE BOARD\Bonilla, Javier-ESO-Sexual-2010-07987\AC.doc Oct 19 2010 15:32 OCT-19-2618 15:17 AHCA/LEGAL MEDICAL 856 414 1989 P.a4 3. Respondent's address of record is 2480 NE 22 Court, #9, Pompano Beach, FL 33062. 4. On or about April 10, 2010, D.C., a client, and female employee of Respondent, received a massage from Respondent. 5. During the massage, Respondent touched D.C.’s anus, continually stuck his fingers in her vagina, and massaged her nipples. 6. D.C. states that she tried to stop Respondent and get away, but he pulled her back. Respondent told her this is what she had been asking for, and later told her that it was her fault. 7. D.C. stated that after the massage, Respondent called her about four times to come to work. He sent her a text to say “please call me”, but she has not returned to work since the incident. 8. On May 6, 2010, D.C. reported the incident to the Broward County Sheriff's Department in Pompano Beach, Florida. The Department received a copy of the police report on June 21, 2010. The officer reported the following facts (alleged victim's initials are used and she refers to D.C.): Upon arrival I met with D.C, massage therapist, who advised that on 04/18/10 she was working in Ft. Lauderdale. She stated that Bonilla is the owner of Massage by the . 2 J:\PSU\Medical\DICONCILIO\MASSAGE BOARD\Bonilla, Javier-ESO-Sexual-2010-07987\AC.doc OCT-19-2618 15:17 Oct 19 2010 15:32 ARCA“LEGAL MEDICAL 856 414 1989 Beach and he came by to break down the equipment. She advised that at this time they agreed to give each other massages. She advised that it was cold on the beach so they decided to go to an office that she believes he owns, located at 4701 N. Federal Highway. She stated that they arrived at this location at approximately 1800 hours. She gave Bonilla a massage first for approximately 1 hour. She stated that he was naked with a sheet laying over him. She stated that he was I[alying on a massage table. She advised that after she gave him the massage Bonilla put his cloth[e]s back on. D.C. stated that at this time she removed her cloth[e]s and laid on the massage table face down with a sheet laying over her. She advised that Bonilla started to massage her back for approximately 10 minutes. She stated that Bonilla then started to massage her legs. She advised that Bonilla started to massage between her inner thighs underneath the sheets. Bonilla was spreading her legs and tapping her anus with his finger. Bonilla advised her to stop moving. She told Bonilla that she was not moving and he continued to attempt to spread her legs. She stated that Bonilla penetrated her vagina with his fingers. She told Bonilla to stop and then attempted to get off the table. Bonilla pulled her back and continued to penetrate her vagina with his fingers. D.C. stated that Bonilla stated to her, “You've been asking for this for a long time.” She turned over and felt like she could not move. She stated that she believes that she blacked out because she remembers hearing Bonilla say, “D. are you awake? Can you hear me? You're scaring me. Why aren't 3 J:\PSU\Medical\DICONCILIO\MASSAGE BOARD\Bonitla, Javier-ESO-Sexual-2010-07987\AC.doc P.@S OCT-19-2618 15:18 Oct 19 2010 15:32 _ ARCA“LEGAL MEDICAL 856 414 1989 you saying anything?” She stated that at this time Bonilla was standing by her head and was fondling her nipples with his fingers. Bonilla was speaking to her in Spanish but she could not understand what he was saying. She stood up from the table and got dressed. D.C. asked Bonilla why he had done what he did, because you could never do this to a client. She advised that Bonilla stated that he continued to tell her to stop but she continued to move and that turned him on. Bonilla then advised her, “I was very close.” D.C. stated that Bonilla only penetrated her with his fingers; the penetration lasted for several minutes. Bonilla walked her out to her vehicle, hugged her and then left in his vehicle. D.C. stated that on Tuesday 04/13/10 Bonilla called her to work but she did not respond to any of his calls or text messages. D.C. stated that her vaginal area was sore for a week. D.C. advised that she worked for several companies. - She spoke to another employer in reference to what had occurred and was advised to contact police. She stated that she wanted to put it behind her so did not make a report immediately. She stated that on 4/20/10 she contacted the Florida Department of Health and made a report in reference to the incident. She stated that she was advised by the Department of Health to make a police report. : 4 J:\PSU\Medical\DICONCILIO\MASSAGE BOARD \Bonilla, Javier-ESO-Sexual-2010-07987\AC.doc P.@6 Oct 19 2010 15:33 OCT-19-2618 15:18 /RHCAYLEGAL MEDICAL 856 414 1989 Pa? COUNT I 9. | Petitioner realleges paragraphs one (1) through eight (8), as if fully copied herein. | . 10. Section 480:046(1)(0), Florida Statutes (2009), provides that violating any provision of Chapter 480 or Chapter 456, Florida Statutes, or any rules adopted pursuant thereto, constitutes grounds for disciplinary action by the Board of Massage Therapy. 11. Section 456.072(1)(v), Florida Statutes (2009), provides that a licensee is subject to discipline, including suspension, for engaging or attempting to engage in sexual misconduct as defined and prohibited in Section 456.063(1), Florida Statutes (2009). 12. Section 456.063(1), Florida Statutes (2009), provides that sexual misconduct in the practice of a health care profession means violation of the professional relationship through which the health care practitioner uses such relationship to engage or attempt to engage the patient or client, or to induce or attempt to induce such person to engage in, verbal or physical sexual activity outside the scope of the professional practice of such health. care professional. Sexual misconduct in the practice of a health care profession is prohibited. =) J:\PSU\Medical\DICONCILIO\MASSAGE BOARD\Bonilla, Javier-ESO-Sexual-2010-07987\AC.doc Oct 19 2010 15:33 OCT-19-2618 15:18 ARCA“LEGAL MEDICAL 856 414 1989 P.@8 13. Respondent violated the professional relationship and used that relationship to engage or attempt to engage D.C. or to induce or attempt to induce D.C. to engage in, verbal or physical sexual activity outside the scope of the professional practice and Respondent engaged in sexual misconduct with his client, D.C., when he touched D.C.’s anus, continually stuck his fingers in D.C’s vagina, and massaged D.C.’s nipples during a massage. 14. Based on the foregoing, Respondent violated Section 480.046(1)(0), 456.072(1)(v), and 456.063(1), Florida Statutes (2009). COUNT II 15. Petitioner realleges paragraphs one (1) through eight (8), and ten (10), as if fully copied herein. 16. Section 480.0485, Florida Statutes (2009), provides that 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 6 7:\PSU\Medical\DICONCILIO\MASSAGE BOARD \Bonillla, Javier-E50-Sexual-2010-07987\AC.doc Oct 19 2010 15:33 OCT-19-2618 15:19 AHCA/LEGAL MEDICAL 8 856 414 1989 P.@9 treatment of the patient. Sexual misconduct in the practice of massage therapy is prohibited and constitutes grounds for disciplinary action by the | Board of Massage Therapy. 17. Respondent violated the therapist-client relationship when he | took advantage of the therapist-client relationship and used that - relationship to induce or attempt to induce D.C. to engage, or to engage, ~ or atternpt to engage D.C. in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment when Respondent touched D,C.’s anus, continually stuck his fingers in D.C’s vagina, and massaged D.C.’s nipples during a massage. ) 18. Based on the foregoing, Respondent violated Section 480.046(1)(0), and 480.0485, Florida Statutes (2009). COUNT TIT 19. Petitioner realleges paragraphs one (1) through eight (8), and: ten (10), as if fully copied herein. 20. Rule 64B7-26.010, Florida Administrative Code, provides in pertinent part; (1) Sexual activity by any person or persons in any massage establishment is absolutely prohibited. 7 :\PSU\Medical\ DICONCILIO\MASSAGE BOARD\Bonilla, Javier-ES0-Sexual-2010-07987\AC.doe OCT-19-2618 15:19 21. Oct 19 2010 15:33 AHCA/LEGAL MEDICAL ~ (2) 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. (3) No licensed massage therapist shall use the therapist-client relationship to engage in sexual activity with any client and, (4) 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. As used herein, sexual activity can involve the use of any device or object and is not dependent on whether penetration, orgasm or ejaculation has occurred. 856 414 1989 P.1a Respondent is a massage therapist and was the owner of the. - establishment when he used the therapist-client relationship to engage D.C. in sexual activity in the establishment when he touched D.C.’s anus, continually stuck his fingers in D.C’s vagina, and massaged D.C.’s nipples during a massage. 8 J:\PSU\Medical\ DICONCILIO\MASSAGE BOARD\ Bonilla, Javier-ES0-Sexual-2010-07987\AC.doc OCT-19-2618 15:19 AHCA/LEGAL MEDICAL oo, Oct 19 2010 15:34 854 414 1989 P.il of 22, Based on the foregoing, Respondent violated Section 480.046(1)(0), Florida Statutes (2009), and Rule 64B7-26.010 (1),(2),(3), & (4), Florida Administrative Code. | COUNT IV 23. Petitioner realleges paragraphs one (1) through eight (8), as if fully copied herein. | 24. Section 480.046(1)(h), Florida Statutes (2009), subjects. a licensee to discipline for 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. 25. Respondent committed grass or repeated malpractice or the failure to practice massage with that level of care, and treatment which is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumstances when Respondent engaged in sexual activity with D.C. and used his position as a massage therapist and establishment owner to engage D.C. in sexual activity when he pulled her | back and prevented her from leaving while he touched D.C.'s anus, 3 . J:\PSU\Medical\ DICONCILIO\MASSAGE ROARD Bonilla, Javier-ESO-Sexual-2010-07987\AC.doc Oct 19 2010 15:34 OCT-19-2618 15:28 AHCA/LEGAL MEDICAL 856 414 1989 P.i2 continually digitally penetrated her vagina, and fondled her nipples during a massage on April 10, 2009. 26. Based on the foregoing, Respondent violated Section 480.046(1)(h), Florida Statutes (2009). WHEREFORE, the Petitioner respectfully requests that the Board of Massage Therapy enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. SIGNED this _@Z- day of CDehleden , 2010. i Ana M. Viamonte Ros, M.D., M.P.H. State Surgeon General DEPARTMENT OF HEALTH 7 A, CLERK. co we CLERK: ee . J. daiConcilio mare 7-3/0 Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar # 0949027 PC ze y (850) 245-4640, Ext. 8129 P: Fay . oo? (850) 245-4684 FAX: PCP Ker dh en Ferien Whittle den thee 19 7:\PSU\Medical\DICONCILIO\MASSAGE BOARD\Bonilla, Javier-ESQ-Sexual-2010-07987\AC.doc Oct 19 2010 15:34 OCT-19-2618 15:28 AHCA/LEGAL MEDICAL _. 856 414 1989 P.13 foe oy JAVIER ANTONIO BONILLA, L.M.T., | DOH CASE NO. 2010-07987 . NOTICE OF RIGHTS . Respondent has the right to request a hearing. to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena | duces tecum issued on his or her behalf if a hearing is requested. . NOTICE REGARDING ASSESSMENT OF COSTS 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. 11 J.\PSU\Medical\ DICONCILIO\MASSAGE BOARD\Bonilla, Javier-ESO-Sexual-2010-07987\AC.doc

Docket for Case No: 10-009763PL