STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF MASSAGE THERAPY,

Petitioner,

vs.

GIUSEPPE CHIARIZIA, L.M.T.,

Respondent.

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) Case No. 10-10597PL

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RECOMMENDED ORDER

On March 28, May 27 and June 9, 2011, a duly-noticed hearing was held in Tallahassee, Florida, before Lisa Shearer Nelson, an Administrative Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Greg S. Marr, Esquire

Florida Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Giuseppe Chiarizia, pro se

P.S.C. 451, Box 490 FPO, AE 09834

STATEMENT OF THE ISSUE

The issue to be decided is whether Respondent violated the provisions of chapters 456 and 480, Florida Statutes, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On December 30, 2008, Petitioner, the Department of Health (Petitioner or the Department) filed a three-count Administrative Complaint against Respondent, Giuseppe Chiarizia, alleging that he violated sections 456.063(1), 456.072(1)(v), 480.046(1)(h) and (o), and 480.0485, Florida Statutes (2008), and Florida Administrative Code Rules 64B7-26.010(1) and (3), and 64B7- 30.001(5). On January 20, 2009, Respondent filed an Answer to the Administrative Complaint and an Election of Rights form in which Respondent requested an administrative hearing pursuant to section 120.57(1), Florida Statutes.

On December 10, 2010, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge. On December 22, 2010, the case was noticed for hearing to commence February 15, 2011. However, on January 20, 2011, Petitioner filed a Notice of Forwarding Correspondent and Pleadings from Counsel for Respondent.

Attached to the Notice was a facsimile sheet, a Motion to Withdraw and a Notice of Intent to Withdraw directed to Respondent. Both pleadings were captioned so as to indicate that they were filed with the Department of Health as opposed to the Division, and statements made in the documents gave the impression that Respondent's counsel was not aware that the case had been forwarded to the Division and was noticed for hearing.

On January 25, 2011, the undersigned denied the request to withdraw, without prejudice to counsel for Respondent's ability to file an amended request that provided an address for Respondent.

On February 3, 2011, Petitioner moved for a continuance, citing in part the uncertainty regarding Respondent's location and the status of his representation and whether he was actually aware of the proceedings. On February 8, 2011, Respondent's counsel filed an Amended Motion for Order Allowing Withdrawal of Counsel, and on February 9, 2011, an Order Canceling Hearing was issued, which required the parties to file a Joint Status Report and for Respondent's counsel to clarify whether she still wished to withdraw from representation. The Department filed a Unilateral Status Report, describing its efforts to reach opposing counsel and providing available dates to reschedule the hearing. Nothing was received from Respondent or his counsel.

As a result, on March 7, 2011, the case was re-noticed for hearing to commence March 28, 2011.

On March 24, 2011, Respondent moved to continue the hearing, asserting that adequate notice of the hearing had not been provided. The Department objected, noting Respondent's failure to participate in filing a Joint Status Report. On March 24, 2011, the Motion for Continuance was denied, and the hearing was convened as scheduled on March 28, 2011. At that time, counsel for Respondent renewed her Motion to Withdraw, citing her

inability to communicate with her client, who at the time was in Bahrain, in order to fully prepare for hearing. The motion was granted and, because of the absence of Respondent and notice concerns, the hearing recessed. On March 29, 2011, an Order was issued continuing the case until an Order Rescheduling Hearing was issued and notifying the parties that the case would be reconvened on May 27, 2011, unless the parties advised of a conflict. The Order further directed Petitioner and the undersigned's assistant to forward to Respondent by e-mail a copy of the Order, and Respondent was directed to notify the Division, no later than April 20, 2011, whether he still disputed the allegations in this case and wanted a hearing.

Although Respondent did not file a Status Report as required, counsel for Petitioner filed one indicating that he had spoken to Respondent, who still wished a formal hearing, and who had indicated that he would participate by telephone from the Kingdom of Bahrain, where he resided. The case was then noticed to reconvene May 27, 2011, and did so. At that time, Petitioner presented the testimony of Taimour Chaudhry, Deputy Andrew LoTurco, Deputy Jason Larson, and Jennifer Mason. Petitioner's Exhibits 1-6, including the deposition testimony of Teri Ingram, were admitted into evidence. Respondent participated in the proceeding by telephone, but was unable to testify at that time because of the inability to locate a person authorized to place him under oath. The hearing was continued again until June 9,

2011, for the purpose of allowing Respondent to testify. At that time, Petitioner's Exhibit 7 was admitted into evidence.

Transcripts of the proceedings were filed on July 5, 2011, and the parties were given until July 25, 2011 to file proposed recommended orders. At the request of the parties, the deadline was extended to August 8, 2011.

Petitioner filed a Proposed Recommended Order on August 8, 2011. Although Respondent was requested to provide and did provide an address for receiving documents related to this hearing, all orders sent subsequent to withdrawal of counsel for Respondent have been returned to the Division. Nonetheless, Respondent participated in the hearing and submitted a letter after the hearing. The letter filed August 5, 2011, indicated that he is now in Italy, as opposed to Bahrain, but did not provide a forwarding address. The Division will be serving a copy of this Order to an e-mail for Respondent provided by the Department.

FINDINGS OF FACT

1. The Department of Health is the state agency charged with the licensing and regulation of massage therapists pursuant to section 20.42 and chapters 456 and 480, Florida Statutes.

2. At times material to the allegations in the Administrative Complaint, Respondent, Giuseppe Chiarizia, was licensed as a massage therapist in the State of Florida, having been licensed on August 26, 2008, and issued license number

   
   

   MA54313. At the time of the alleged incident in this case, his license was clear and active.

3. Teri Ingram and M.C. are close friends who reside, with their respective spouses, in Illinois. In late September, early October of 2008, the two couples were vacationing in Panama City.

4. On or about October 1, 2008, Ms. Ingram and T.C. went to the Salon Baliage and Spa for a massage.

5. Upon arriving at the spa, the women were led to a room to fill out paper work, and offered some refreshments, which they declined. Each woman was then taken back for the services they were receiving. Ms. Ingram was called back first, and had a facial and a massage. M.C. was having similar services.

6. After Ms. Ingram's massage was finished, she returned to the waiting room to wait for M.C. At some point, an employee at the spa came to her and told her that M.C. was in another room and wanted to see her immediately.

7. As Ms. Ingram approached the room, M.C. came out. She was dressed, but was shaking and crying hysterically. Ms. Ingram described her as "all hunched over, more like hugging herself."

8. M.C. wanted to call the women's husbands and leave the spa. Ms. Ingram notified the manager that something had happened but she was not sure what, and that they were leaving the spa. Ms. Ingram paid for her services; she did not know if M.C. did so as well.

   
   

9. The two women went outside, and while waiting for their husbands, M.C. told Ms. Ingram that the massage therapist, Respondent, had touched her. Ms. Ingram asked her what she meant by that statement, and M.C. told Ms. Ingram that the massage therapist had rubbed his genitals across her hands and her shoulders during her massage, and that once he began the massage he slipped his finger inside her vagina. M.C. stated that she told him to leave the room and to leave her alone, and in response, he held her down and told her he was sorry. She asked him repeatedly to leave the room and he finally did so.

10. Once their husbands arrived, the two couples drove to the Panama City Beach Police Station to report the incident.

11. Deputy Andrew LoTurco was employed by the Bay County Sheriff's Office. He was dispatched to the Panama City Beach Police Department to respond to M.C.'s complaint of sexual battery. When he encountered M.C., she was very distraught and embarrassed. After hearing her complaint and speaking with M.C., her husband and a lady, presumably Ms. Ingram, Deputy LoTurco transported M.C. to the Bay Medical Center for examination, and turned over the investigation to Deputy Jason Larson.

12. Deputy Larson met with M.C. and also observed that she was extremely upset and had been crying. During the interview, she was withdrawn. M.C. related to Deputy Larson an account of what happened that was essentially the same as what she had

    
    

    stated to Ms. Ingram. She identified the massage therapist as Respondent.

13. At some point, Respondent was taken to the Sheriff's Office, and Deputy Larson interviewed him and advised him of his Miranda rights. Respondent declined to give a taped statement, but did speak with Officer Larson. Initially, he denied M.C.'s report, but as the interview continued, he stated that it was possible he may have accidentally penetrated M.C.'s vagina with the tip of his finger.

14. He also stated that if he was in his country, M.C. would have given him a tip and thanked him.

15. At the hospital, a rape kit was administered. M.C. continued to be very upset by the incident, and the two couples shortened their planned vacation to return home as a result.

16. Respondent claims that M.C. was a difficult client to massage because she was heavy-set. By contrast, Ms. Ingram testified that she thought M.C. was approximately five feet, four inches tall, and weighed approximately 140 pounds. Respondent also testified that during the massage, M.C. brought her hands out too far, making it difficult for him to continue massaging her and also avoid intimate contact with her hands. Finally, he claimed, essentially, that M.C. was masturbating during the massage. Respondent's testimony is not credited.

17. Massage therapy training often involves blindfold massage, and teaches that massage in the vicinity of the genital

    
    

    area is to be conducted very carefully. If a massage therapist properly draped a patient consistent with the requirements of Florida Administrative Code Rule 64B7-30.001, it would not be possible to inadvertently touch a client's genital area.

18. The placement of a massage therapist's finger into the vagina of a massage client is outside the scope of the professional practice of massage therapy and is below the standard of care.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes (2010).

20. The Department is seeking to take disciplinary action against Respondent's license as a massage therapist. Because disciplinary proceedings are considered to be penal proceedings, the Department has the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking and Fin. v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    As stated by the Supreme Court of Florida,

    
    

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a 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.

    
    

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

    
    

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

    
    

21. Moreover, disciplinary provisions must be strictly construed in favor of the licensee. Elmariah v. Dep't of Prof. Reg., 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep't of Prof. Reg., 534 So. 782, 784 Fla. 1st DCA 1988).

22. Before addressing whether Respondent's conduct violates the statutory and rule provisions cited in the Administrative Complaint, it is necessary to discuss the admissibility of statements by M.C. presented by the Department in support of the charges against Respondent. M.C. did not testify in this proceeding. Her statements regarding Respondent's conduct were statements made to her friend, Ms. Ingram, in the moments after the incident, and her statements made to Deputy LoTurco upon arriving at the police station. Both statements were made while

    M.C. was visibly upset: as Ms. Ingram described her, she was crying hysterically and shaking. The deposition of Ms. Ingram was taken while Respondent was represented by counsel, and counsel objected to the statements as hearsay. The Department argues that they constitute an exception the hearsay rule as an excited utterance.

23. Section 90.803, Florida Statutes, lists the types of evidence that are not inadmissible as hearsay, regardless of whether the declarant is available as a witness. Section

    
    

    90.803(2) defines the excited utterance exception as "[a] statement or excited utterance relating to a startling event or condition made while the declarant is under the stress of excitement caused by the event or condition." A statement qualifies as an excited utterance when,

    1. there is an event startling enough to cause nervous excitement; (2) the statement was made before there was time for reflection; and (3) the statement was made while the person was under the stress of the excitement from the startling event.

       
       

       Lopez v. State, 888 So. 2d 693, 696-697 (Fla. 1st DCA 2004);

       
       

       Hayward v. State, 24 So. 3d 17, 29 (Fla. 2009). The rationale for the excited utterance exception is that a statement made during a period of excitement is likely to be more reliable than a statement made after a period of reflection, because a person "who is startled and excited does not have the capacity to analyze the facts or to make a conscious misrepresentation of the event." Lopez, 888 So. 2d at 696.

24. As stated by the First District in Werley v. State, 814 So. 2d 1159, 1161 (Fla. 1st DCA 2002), "[t]here is no bright-line rule of hours or minutes to determine whether the time interval between the event and the statement is long enough to permit reflective thought." This determination is one that depends upon the circumstances. Id. Factors that can be considered in making this determination are the age of the declarant, the physical and mental condition of the declarant, the characteristics of the

    
    

    event and the subject matter of the statements. Hayward, 24 So. 3d at 24 (and cases cited therein).

25. In this case, both the statement to Ms. Ingram and the statement to Deputy LoTurco constitute excited utterances. In both instances, the person to whom she spoke described her as extremely upset to the point of hysteria. The events about which she spoke were not only something that would evoke a strong reaction, but something that would cause a certain amount of embarrassment and a great deal of stress. The conversation with Ms. Ingram was a matter of minutes after the incident, and the report to Deputy LoTurco was within a few hours. The accounts were consistent. Based upon the evidence as a whole, the undersigned finds these statements made by M.C. as recounted in Ms. Ingram's deposition and Deputy LoTurco's testimony to be excited utterances admissible as an exception to the hearsay rule, pursuant to section 90.803(2).

26. Count I of the Administrative Complaint charged Respondent with violating sections 456.063(1); 456.072(1)(v); 480.046(1)(o); and 480.0485, Florida Statutes. These statutory provisions state the following:

    456.063 Sexual misconduct; disqualification for license, certificate, or registration.--

    (1) 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 an immediate family member, guardian, or representative of the

    
    

    patient or client in, 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 profession. Sexual misconduct in the practice of a health care profession is prohibited.

    
    

    456.072 Grounds for discipline; penalties; enforcement.--

    (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

    
    

    * * *

    
    

    (v) Engaging or attempting to engage in sexual misconduct as defined and prohibited in s. 456.063(1).

    
    

    480.046 Grounds for disciplinary action by the board.--

    (1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

    
    

    * * *

    
    

    (o) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.

    
    

    480.0485 Sexual misconduct in the practice of massage therapy.--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.

    
    

27. There is clear and convincing evidence to support the allegations in Count I of the Administrative Complaint. M.C. related what happened to her immediately after the massage, while still shaking and crying as a result of the incident.

    Ms. Ingram's description of her behavior supports the inference that the complained-about event actually occurred. Moreover, Respondent admitted to Deputy Larson that he might have "accidentally" inserted his finger into M.C.'s vagina during the massage. Expert testimony is credited that accidental contact such as that described would not occur consistent with accepted training for a massage therapist. Moreover, Respondent's explanation of the events is not at all credible.

28. Count II of the Administrative Complaint charges Respondent with violating the same provisions outlined above, in addition to Florida Administrative Code Rule 64B7-26.010(1) and (3). The rule provides in pertinent part:

    64B7-26.010 Sexual Activity Prohibited.

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

       
       

       * * *

       
       

       (3) 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.

       
       

29. It is unclear why the Department has repeated the same

    
    

    statutory violations in Count II that are alleged in Count II, and any finding that the provisions were violated would be superfluous. However, for the reasons expressed above, clear and convincing evidence exists to demonstrate that Respondent violated rule 64B7-26.010 as charged in Count II of the Administrative Complaint.

30. Count III of the Administrative Complaint charges Respondent with violating section 480.046(1)(h) and (o) and rule 64B7-30.001(5). The text of subsection 480.046(1)(o) is quoted at paragraph 26, above.

31. Section 480.046(1)(h) authorizes disciplinary action for "[g]ross 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."

32. Florida Administrative Code Rule 64B7-30.001(5) provides:

    64B7-30.001 Misconduct and Negligence in the Practice of Massage Therapy.

    The following acts shall constitute the failure to practice massage therapy with that level of care, skill, and treatment which is recognized by a reasonably prudent similar massage therapist as being acceptable under similar conditions and circumstances:

    
    

    * * *

    
    

    (5) Failure to appropriately drape a client. Appropriate draping of a client shall include

    
    

    draping of the buttocks and genitalia of all clients, and breasts of female clients, unless the client gives specific informed consent to be undraped.

    
    

33. As stated above, findings that Respondent violated section 480.046(1)(o) are included in the discussion regarding Count I and need not be repeated here. There is evidence that a massage therapist's insertion of his or her finger into the vagina of a massage client is outside the scope of the professional practice of massage therapy, and would be below the standard of care. Accordingly, violation of section 480.046(1)(h) has been proven by clear and convincing evidence.

34. Rule 64B7-30.001(5), however, deals with proper draping techniques. While there was evidence to the effect that, had proper techniques been observed, it was not possible for a therapist to "accidentally" insert a finger into the vagina of a client, there was no evidence indicating how M.C. was actually draped during the massage. Therefore, a violation of rule 64B7-

    30.001 was not proven by clear and convincing evidence.

    
    

35. Florida Administrative Code Rule 64B7-30.002 contains the Board of Massage Therapy's Disciplinary Guidelines for penalties to be imposed when violation of statutes or rules governing massage therapy are found. The penalty for a first- time violation of section 480.0485 is a $1,000 fine and revocation. Aggravating and mitigating factors are identified in rule 64B7-30.002(3), and have been considered.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That the Board of Massage Therapy enter a final order finding Respondent guilty of violating sections 456.063(1); 456.072(1)(v); 480.046(1)(h) and(o); and 480.0485, Florida

Statutes, and Florida Administrative Code Rule 64B7-26.010; finding Respondent not guilty of violating rule 64B7-30.001(5); and imposing a fine of $1,000 and revoking his license to practice massage therapy.

DONE AND ENTERED this 1st day of September, 2011, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2011.

COPIES FURNISHED:

Greg S. Marr, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Manshi Shah, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Giuseppe Chiarizia

P.S.C. 451, Box 490 FPO, AE 09834

(giuseppechiarizia@hotmail.com)

Nicholas W. Romanello, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32299-1701

Anthony Jusevitch, Executive Director Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32299-1701

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: 10-010597PL

Orders for Case No: 10-010597PL