srATE OF FLORIDA DEPARTMENT OF HEALTH
DEPARTMENT OF HEALTH,
Petitioner,
V.
CASE NO. 2011-0142"/
Respondent.
ADMINISfRATIVE 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, Daryl J. Russell, L.M.T., and in support thereof alleges:
Petitioner is the state department charged with regulating the practice of massage therapy pursuant to Section 20.43, Florida Statutes; Chapter 456, Florlda Statutes; and Chapter 480, Florida Statutes.
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 48914 on or about January 6, 2006.
Respondent's address of record is 5565 Fiat Lane, Jacksonville, Florida 32244. However, his current address is 5572 Great Pine Lane S., Jacksonville, Florida 32244.
On or about January 10, 2011, and at all tim12s material to this complaint, Respondent was employed as a massage therapist at Massage Envy, located at 6331 Roosevelt Blvd., Jacksonville, Florida.
On or about January 10, 2011, H.J., a female, presented to
Massage Envy and Respondent gave H.J. a massage.
During the massage, Respondent tried several times to insert his finger into H.J.'s genital area.
While Respondent was massaging H.J.'s legs, Respondent placep his mouth on H.J.'s genital area.
H.J. reported the incident to Stacey Venables, the manager of Massage Envy, on January 11, 2011, and told Ms. Venables that her therapist was "very unprofessional" and "inappropriate.'' H.J. stated to Ms. Venables that during the massage Respondent "touched her [H.J.] where the gynecologist touches you.''
H.J. then filed a complaint with the Department and her written complaint alleged that during a massage with Respondent on January 10,
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2011, Respondent tried several times to insert his finger Into her genital area, and while massaging her feet and legs, Respondent placed his mouth
on her geni1111 area. HJ. said, "Stop", and Respondent ashid, "Are you sure," to which H.J. responded, "positive."
Respondent was notified of the complaint at his address of
record and the mail was returned marked, "Return to Sender, not deliverable as addressed."
Respondent has not updated his current addrc.ss with the
Department or the Board of Massage Therapy.
COUNT I
Petitioner realleges paragraphs one (1) through nine (9), as if fully copied herein.
Section 480.046(1)(0), Florida Statutes (2010), provides that a massage therapist is subject to discipline, including suspension, for violating any provision of this Chapter or Chapter 456, or any rules adopted pursuant thereto.
Section 480.0485, Florida Statutes (2010), provides that the
massage therapist-patient relationship is founded on mutual trust. Sexual misc.onduct in the practic:e of massage therapy means violation of the
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massage therapist-patient relationship through which the massage therapist
. uses that relationship to induce or attempt to induce such person 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
treabnent of the patient. Sexual misconduct in the practice of massage therapy is prohibited.
Respondent vitllated the client-therapist professional relationship when he engaged or attempted to engage H.J., or to induce or attempt to induce H.J. to engage in, verbal or physical sexual activity outside the sci:,pe of the professional practice of such health care profession when Respondent atrempted several times to insert his finger into H.J.'s genital area and placed his mouth on H.J.'s genital area during a massage.
Based on the foregoing, Respondent violc1ted Section
480.046(1)(0), and Section 480.0485, Florida Statutes (2010).
COUNT II
Petitioner realleges paragraphs one (1) through nine (9), as If fully copied herein.
Section 480.046(1)(h), Florida Statutes (2010), provides that gross or repeated malpractice or the failure to practice massage with that
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level of care, skill, and treatment which is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumstances, constitutes grounds for disciplinary action.
. 19. Respondent iled to practice massage with that level of care, sklll, and treatment which is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumst.ances when he engaged in sexual activity or attempted to engage H.J. in sexual activity while giving her a massage.
20. Based on the foregoing, Respondent violated Section 480.046(1)(h), Florida Statutes (2010).
COUNTIII
2.1. Petitioner realleges paragraphs one (1) through nine (9), and thirteen (13), as if fully copied herein.
Rule 64B7-26.010, Florida Admini!>trative Code, provides, in pertinent part:
xual activity by any person or persons in any massage establishment is absolutely prohibited.
No licensed massage therapist shall use the therapist-client relalionship to engage in sexual activity with any client and,
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Mused 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 purpose!S 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....
Respondent used the therapist-client relationship and used his position as a massage theraplst in order to induce or attempt to induce H.J. to.engage In sexual activity when he tried several times to di itally penetrate H.J.'S vaginal area and he placed his mouth on H.J.'s genital area during a massage on January 10, 2011.
Based on the foregoing, Respondent violated Section
480.()46(1)(0), Florida Statutes (2010), and Rule 6467-26.010 (1), (3), and
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(4), Florida Administrative Code.
COUNTIV
Petitioner realleg!f!s paragraphs one (1) through three (3), ten (10), eleven (11), and thirteen (13), as if fully copied herein.
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26, Section 456.035(1), Florida Statutes (2010), provides that each licensee of the department is solely responsible for notifying the department in writing of the licensee's current mailing address and place of practice.... A licensee's failure to notify the department of a change of address constitutes a violati.on of this section, and the licensee may be disciplined.by the board of massage therapy.
Rule 64B7-28.0015(1), Florida Administrative Code, provides that the reporting requirements of Section 456.035, Florida Statutes, require each licensee to provide to the Board a current mailing address and a "place of Practice." Failure to do so constitutes grounds for disciplinary action by the Board of Massc1ge Therapy.
Respondent failed to notify the board of his current address and place of practice as evidenced by the return mail from the address of record marked, "Return to Sender, not deliverable as addressed."
Based on the foregoing, Respondent violated Section 480.046(1)(0), and Section 456.035(1), Florida Statutes (2010), and Rule 6467,28.0015(1), Florida Administrative Code.
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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, impositi<m of an administrative fine, Issuance of a reprimand, placement of the Res ndent on probation, corrective action, refund of fees billed or
collected, remedial education and/or any other relief that the Board deems
appropriate.
SIGNED this 5th day of May , 2011.
H. Frank F<1rmer, Jr., M.D., Ph.D.
State Surgeon General
/s.j.,bieoncilio
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D:+;..ur.terr 0flHEALTH
DEPUry Ci.ERi(
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Assistant General Counsel
DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar # 949027
(850) 245-4640, Ext. 8129
(850) 245-4684 FAX:
PCP: May 5, 2011
PCP Members: Karen Harrison & William Stoehs
JUN-21-2011 10:40
AHCA/LEGAL MEDICAL
DOH CASE NO. 2011-01427
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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 duct!s 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.
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