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DEPARTMENT OF HEALTH, BOARD OF MASSAGE THERAPY vs MIN ZHANG, L.M.T., 16-003870PL (2016)

Court: Division of Administrative Hearings, Florida Number: 16-003870PL Visitors: 25
Petitioner: DEPARTMENT OF HEALTH, BOARD OF MASSAGE THERAPY
Respondent: MIN ZHANG, L.M.T.
Judges: E. GARY EARLY
Agency: Department of Health
Locations: Lauderdale Lakes, Florida
Filed: Jul. 12, 2016
Status: Closed
Recommended Order on Friday, October 7, 2016.

Latest Update: Oct. 16, 2017
Summary: The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of section 480.0485, Florida Statutes and, if so, the appropriate sanction.Petitioner failed to prove the identity of the person alleged to have offered massage services that constituted sexual misconduct by means of admissible, non-hearsay evidence. The Administrative Complaint should be dismissed.
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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


DEPARTMENT OF HEALTH, BOARD OF MASSAGE THERAPY,


Petitioner,


vs.


MIN ZHANG, L.M.T.,


Respondent.

/

Case No. 16-3870PL


RECOMMENDED ORDER


On August 31, 2016, a final hearing was held by video teleconference at locations in Tallahassee and Ft. Lauderdale, Florida, before E. Gary Early, an Administrative Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES


For Petitioner: Lealand L. McCharen, Esquire

Carrie Beth McNamara, Esquire Department of Health

4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265


For Respondent: William M. Furlow, Esquire

Paul P. Drake, Esquire Grossman Furlow & Bayo, LLC 2022-2 Raymond Diehl Road Tallahassee, Florida 32308


STATEMENT OF THE ISSUES


The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in


violation of section 480.0485, Florida Statutes and, if so, the


appropriate sanction.


PRELIMINARY STATEMENT


On November 19, 2014, Petitioner, Department of Health (Department), issued an Administrative Complaint against Respondent, Min Zhang, a licensed massage therapist. The complaint charged Respondent with sexual misconduct in the practice of massage therapy, in violation of section 480.0485.

On December 15, 2014, Respondent filed a Request for Administrative Hearing Involving Disputed Issues of Fact in which she disputed material facts alleged in the Administrative Complaint and requested an administrative hearing.

On July 12, 2016, the petition was referred to the Division of Administrative Hearings. The final hearing was scheduled for August 31, 2016.

On July 26, 2016, the parties stipulated that “the allegations of paragraph 6 of the Administrative Complaint, if proven at trial, constitute both sexual misconduct under Section 480.0485, Florida Statutes (2013), and are outside of the scope of massage as defined in Chapter 480, Florida Statutes (2013).”

On August 25, 2016, the parties filed a Joint Prehearing Stipulation, by which the Department withdrew Count II of the


Administrative Complaint. Thus, this proceeding is as to Count I only.

At hearing, Petitioner offered the testimony of M.T., a detective with the City of Sunrise Police Department, and offered Petitioner’s Exhibit 1 in evidence.1/ Respondent made no appearance at the hearing, but was represented by counsel. Respondent offered no witnesses or exhibits.

The one-volume final hearing Transcript was filed on August 28, 2015. Both parties timely filed Proposed Recommended Orders that were considered in preparation of this Recommended Order.

This proceeding is governed by the law in effect at the time of the commission of the acts alleged to warrant discipline. See McCloskey v. Dep’t of Fin. Servs., 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statutes are to Florida Statutes (2013), unless otherwise noted.

FINDINGS OF FACT


  1. The Department of Health, Board of Massage Therapy, is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43, and chapters 456 and 480, Florida Statutes.

  2. At all times material to this proceeding, Min Zhang was a licensed massage therapist in the state of Florida, holding license number MA70667.


  3. Respondent’s current address of record is 14444 38th Avenue, Apartment B3, Flushing, New York 11354.

  4. On April 3, 2014, Detective M.T. entered the Red Jade Oriental Massage (Red Jade), located at 2051 North University Drive, Sunrise, Florida 33322. Detective M.T. was greeted by an unnamed female employee of the Red Jade. That employee was not alleged to be Respondent. He was advised that a massage cost

    $50, which he paid with Official Investigatory Funds (OIF). The unnamed female employee escorted Detective M.T. to a massage room, and told him to disrobe and wait. Detective M.T. undressed completely and lay face down on the massage table with a towel covering his buttocks.

  5. Detective M.T. had an audio transmission device relaying his discussions in the Red Jade to police officers stationed outside.

  6. A woman entered the massage room and proceeded to briefly massage the back of Detective M.T.’s thighs near his buttocks with a light touch. Detective M.T. turned onto his back, and the masseuse briefly massaged the front of Detective M.T.’s thighs. The masseuse then clenched her fist and moved it in an up-and-down motion while looking at Detective M.T.’s face. She did not speak. Detective M.T. understood this gesture to be an offer to perform masturbation as an additional service. Detective M.T. asked the masseuse how much it would cost. She


    replied, “50.” Detective M.T. agreed to this price, got up and retrieved an additional $50 in OIF, and gave it to her.

  7. When the masseuse accepted the $50, Sunrise Police Department officers entered the Red Jade and took the masseuse into custody.

  8. Detective M.T. dressed and related the events that he was involved in to Detective Robinson, the case agent responsible for generating the police report. He then left the premises. Detective M.T. did not know the name of the woman providing the massage, and was not present when she was putatively identified by other officers.

  9. Detective M.T. did not know whether the person taken into custody was Respondent, and had no information as to how the masseuse was identified. He was not privy to any conversation between the officers and any person employed by the Red Jade.

  10. The motioning of one’s hand in an up-and-down motion, as described and demonstrated by Detective M.T., is accepted as constituting a solicitation for sexual services in the form of masturbation. Offering to perform masturbation during the course of a massage constitutes sexual activity outside the scope of massage as defined in chapter 480.


    CONCLUSIONS OF LAW


    1. Jurisdiction


  11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 480.046(4), 120.569, and 120.57(1), Fla. Stat. (2016).

  12. Petitioner has authority to investigate and file administrative complaints charging violations of the laws governing licensed massage therapists. § 456.073, Fla. Stat.

    1. Standards


  13. Section 480.046(1)(p) provides that:


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


    * * *


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


  14. Respondent is charged with engaging in sexual misconduct in the practice of massage, in violation of section 480.0485, which provides:

    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.


    1. Burden and Standard of Proof


  15. The Department bears the burden of proving the specific allegations that support the charges alleged in the Administrative Complaint, including the identity of the person who is the subject of the allegations of wrongdoing, by clear and convincing evidence. Dep’t of Banking & Fin., Div. of Sec.

    & Inv. Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Fox v. Dep't

    of Health, 994 So. 2d 416 (Fla. 1st DCA 2008); Pou v. Dep’t of Ins. & Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).

  16. Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano,

    696 So. 2d 744, 753 (Fla. 1997). The clear and convincing evidence level of proof:

    [E]ntails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.


    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 explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such 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 Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting, with


    approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005).

    "Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp. v. Shuler Bros.,

    590 So. 2d 986, 989 (Fla. 1st DCA 1991).


  17. A proceeding to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla.

    1973). The provisions of law upon which this disciplinary action has been brought are penal in nature, and must be strictly construed, with any ambiguity construed against Petitioner. Penal statutes must be construed in terms of their literal meaning and words used by the Legislature may not be expanded to broaden the application of such statutes. Elmariah v. Dep’t of Bus. & Prof’l Reg., 574 So. 2d 164, 165 (Fla. 1st

    DCA 1990); see also Griffis v. Fish & Wildlife Conserv. Comm'n,


    57 So. 3d 929, 931 (Fla. 1st DCA 2011); Beckett v. Dep’t of Fin.


    Servs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008); Whitaker v. Dep’t of Ins., 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Dyer v.

    Dep’t of Ins. & Treasurer, 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

  18. The allegations of fact set forth in the Administrative Complaint are the grounds upon which this proceeding is predicated. Trevisani v. Dep’t of Health, 908 So.

    2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v. Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the

    scope of this proceeding is properly restricted to those matters as framed by Petitioner. M.H. v. Dep’t of Child. & Fam. Servs.,

    977 So. 2d 755, 763 (Fla. 2d DCA 2008).


    1. Police Reports


  19. Section 90.803(8), Florida Statutes, entitled Public Records and Reports, provides, in pertinent part, that:

    Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness.


  20. The evidence as to the identity of the masseuse was provided exclusively by means of the police report entered in


    evidence. The police report is hearsay. However, it would be admissible over objection in a civil trial since it falls within the public records hearsay exception in section 90.803(8). The public records exception is limited to “matters observed pursuant to duty imposed by law as to matters which there was a duty to report.” It is well established that “[f]or evidence to be admissible under one of the exceptions to the hearsay rule, it must be offered in strict compliance with the requirements of the particular exception.” Juste v. Dep’t of HRS, 520 So. 2d 69, 71 (Fla. 1st DCA 1988).

  21. There was no evidence offered to support a finding that Detective Robinson, who wrote the report, observed the means by which the identity of the masseuse was obtained. Records that are not based on the observations of a public official, but “rely on information supplied by outside sources,” do not fall within the public records and reports exception to the hearsay rule, and “‘rather than offering this type of record, a witness must be called who has personal knowledge of the facts.’” Lee v. Dep't of HRS, 698 So. 2d 1194, 1201 (Fla.

    1997), citing Ehrhardt, § 803.8.


  22. The hearsay exception established in section 90.803(8) does not extend to police reports used in criminal cases. The reason, as stated by Professor Ehrhardt, “is based on the belief that observations by officers at the scene of a crime or when a


    defendant is arrested are not as reliable as observation by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant.” Charles W. Ehrhardt, Ehrhardt’s Florida Evidence

    § 803.8 (2016 Ed.). Although the police report is admissible in this case, the same concerns as to reliability that are present in the criminal context exist when it is used in a penal civil context. Thus, even though the report is admissible, the determination of the weight to be given the report, as is the case with all evidence, remains within the province of the trier of fact.

    1. Analysis


  23. Detective M.T. did not know the identity of the masseuse, and was not present when her identity was purportedly obtained.

  24. The police report lists ten “assisting officers,” with Detective M.T. being the only one to testify. The author of the report, Detective Robinson, was occupied with taking the statement of Detective M.T. for at least part of the time as the events described occurred. There is no description of how the identification of the masseuse was made, or who made it. There is no evidence to support a finding or conclusion that Detective Robinson observed, or was involved in, the process by which the masseuse was identified.


  25. The undersigned has no hesitation in concluding that the action of the masseuse was an unequivocal offer to masturbate Detective M.T. that, in accordance with the stipulation of the parties, constituted both sexual misconduct under section 480.0485, and conduct outside of the scope of massage as defined in chapter 480.

  26. The only evidence of the identity of the masseuse was that contained in the police report. Given that there was no evidence that the person who prepared the report observed or participated in the identification of the masseuse, and since there is no other evidence of her identity, the evidence is not sufficient to support the allegation that the masseuse was Respondent. § 120.57(1)(c), Fla. Stat.

RECOMMENDATION


Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy, enter a final order dismissing the Administrative Complaint against Respondent, Min Zhang, L.M.T.


DONE AND ENTERED this 7th day of October, 2016, in Tallahassee, Leon County, Florida.

S

E. GARY EARLY 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 7th day of October, 2016.


ENDNOTE


1/ Exhibit 1 is a police report of the incident giving rise to the Administrative Complaint. Detective M.T. testified to some of the incidents described in the police report from his personal knowledge. His testimony was sufficient to authenticate the police report. The copy that was with Detective M.T. in the Ft. Lauderdale location was signed by him and notarized, provided by the Department as a substitute to the copy of Exhibit 1 offered in evidence in Tallahassee, and is received in evidence as Exhibit 1.


COPIES FURNISHED:


William M. Furlow, Esquire Paul P. Drake, Esquire Grossman Furlow & Bayo, LLC 2022-2 Raymond Diehl Road Tallahassee, Florida 32308 (eServed)


Lealand L. McCharen, Esquire Carrie Beth McNamara, Esquire Department of Health

4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 (eServed)


Claudia Kemp, JD, Executive Director Department of Health

4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-3257 (eServed)


Nichole C. Geary, General Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)


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: 16-003870PL
Issue Date Proceedings
Oct. 16, 2017 Agency Final Order filed.
Oct. 07, 2016 Recommended Order (hearing held August 31, 2016). CASE CLOSED.
Sep. 26, 2016 Respondent's Proposed Recommended Order filed.
Sep. 26, 2016 Petitioner's Proposed Recommended Order filed.
Sep. 16, 2016 Transcript of Proceedings (not available for viewing) filed.
Sep. 07, 2016 Notice of Filing Late-filed Exhibit filed.
Aug. 31, 2016 CASE STATUS: Hearing Held.
Aug. 26, 2016 Order Granting Motion to Permit Interpreter to Appear by Video at Final Hearing.
Aug. 25, 2016 Petitioner's Unopposed Motion For Interpreter to Appear by Video at Final Hearing filed.
Aug. 25, 2016 Joint Pre-hearing Stipulation filed.
Aug. 16, 2016 Notice of Court Reporter filed.
Aug. 15, 2016 Petitioner's Notice of Taking Deposition (of Officer Mark Thomas) filed.
Jul. 26, 2016 Joint Stipulation on Administrative Complaint filed.
Jul. 19, 2016 Order Granting Petitioner's Unopposed Motion for Witness to Appear by Video at Final Hearing and Amended Notice of Hearing (hearing set for August 31, 2016; 9:30 a.m.; Lauderdale Lakes and Tallahassee, FL; amended as to Venue).
Jul. 18, 2016 Petitioner's Unopposed Motion for Witness to Appear by Video at Final Hearing filed.
Jul. 15, 2016 Order of Pre-hearing Instructions.
Jul. 15, 2016 Notice of Hearing (hearing set for August 31, 2016; 9:30 a.m.; Tallahassee, FL).
Jul. 13, 2016 Joint Response to Initial Order filed.
Jul. 13, 2016 Notice of Service of Discovery filed.
Jul. 12, 2016 Initial Order.
Jul. 12, 2016 Notice of Co-Counsel Appearance (filed by Carrie McNamara).
Jul. 12, 2016 Notice of Appearance (Lealand McCharen).
Jul. 12, 2016 Request for Administrative Hearing Involving Disputed Issues of Fact filed.
Jul. 12, 2016 Administrative Complaint filed.
Jul. 12, 2016 Agency referral filed.

Orders for Case No: 16-003870PL
Issue Date Document Summary
Oct. 11, 2017 Agency Final Order
Oct. 07, 2016 Recommended Order Petitioner failed to prove the identity of the person alleged to have offered massage services that constituted sexual misconduct by means of admissible, non-hearsay evidence. The Administrative Complaint should be dismissed.
Source:  Florida - Division of Administrative Hearings

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