STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, Vv. CASE NO. 2014-04424 WILMER ESPAILLAT, L.M.T., RESPONDENT. f ADMINISTRATIVE COMPLAINT Petitioner, Department of Health, by and through undersigned counsel, files this Administrative Complaint before the Board of Massage Therapy against Respondent, Wilmer Espaillat, L.M.T., and in support thereof alleges: 1. Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to Section 456.073(8), Chapters 20, 456, and 480, Florida Statutes (2013). a 2. At all times material to this Complaint, Respondent was licensed to practice as a massage therapist within the state of Florida, having been issued license number MA 47151. 3. Respondent’s address of record is 104 Cherry Hill Ct., Naples, Florida 34113. 4. At all times material to this Complaint, Respondent was licensed as a massage therapist in the State of Florida, pursuant to Chapter 480, Florida Statutes, and was employed at the Marco Island Marriott Beach Resort (“Marriott”) in Naples, Florida. . 5. Onor about March 13, 2014, Respondent provided a massage to W.N., a female guest at the Marriott. 6. During the massage, Respondent touched W.N.’s breasts and nipples without W.N.’s consent and without justification. 7. Section 480.046(1)(p), Florida Statutes (2013), subjects a massage therapist to discipline for violating any provision of Chapter 480, Florida Statutes (2013) or Chapter 456, Florida Statutes (2013) or any rules . adopted pursuant thereto. 8. Section 480.0485, Florida Statutes (2013), 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 the 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 treatment of the patient. Sexual misconduct in the practice of massage is prohibited. DOH v. Wilmer Espaillat, LMT 2 DOH Case No. 2014-04424 9. 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. (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 likely to cause such stimulation and includes sexual intercourse, fellatio, | cunnilingus, masturbation, or anal intercourse. For the 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... 10. Respondent exercised influence within a massage therapy relationship for the purpose of engaging or attempting to engage a patient in sexual activity, in violation of Sections 480.046(1)(p) and 480.0485, Florida Statutes (2013), and Rule 64B7-26.010 (1), (3), and (4), Florida Administrative Code, by touching W.N.’s breasts and/or nipples without any legitimate purpose. DOH v. Wilmer Espaillat, LMT DOH Case No. 2014-04424 WHEREFORE, Petitioner respectfully requests that the Board of Massage Therapy enter an order imposing one or more of the following penalties: revocation of Respondent’s license, permanent suspension of Respondent's license, restriction of practice, 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. Ha SIGNED this _/4" day of Max 2014. John H. Armstrong, MD State Surgeon General and Secretary of Health HA Gialella Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 DEPARTMENT OF HEALTH Florida Bar No.: 91101 DEPUTY CLERK P: (850) 245 — 4444 x8199 PLERIC er sacie F: (850) 245 — 4662 pate MAE eae karine.gialella@flhealth.gov PCP: May 15, 2014 PCP Members: Karen Harrison; Robyn Dohn DOH v. Wilmer Espaillat, LMT * DOH Case No. 2014-04424 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. DOH v. Wilmer Espaillat, LMT DOH Case No. 2014-04424

Docket for Case No: 14-003099PL