STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF MASSAGE THERAPY,

Petitioner,

vs.

MURTAGH D. MEYLER, L.M.T.,

Respondent.

/

Case No. 16-6384PL

RECOMMENDED ORDER

On December 14, 2016, Administrative Law Judge Lynne A. Quimby-Pennock of the Florida Division of Administrative Hearings (Division) conducted a duly-noticed hearing pursuant to section 120.57(1), Florida Statutes (2016), in Saint Petersburg, Florida.

APPEARANCES

For Petitioner: John A. Wilson, Esquire

Amy C. Thorn, Esquire Department of Health Prosecution Services Unit Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399

For Respondent: Murtagh D. Meyler, L.M.T., pro se 5700 67th Avenue

Pinellas Park, Florida 33781 STATEMENT OF THE ISSUES

Whether Respondent violated provisions of chapter 480, Florida Statutes, as alleged in the Administrative Complaint, and; if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On August 17, 2016, Petitioner, Department of Health, Board of Massage Therapy (Petitioner or the Department), issued a one- count Administrative Complaint against Respondent, Murtagh D. Meyler. The complaint alleged that Respondent violated sections 480.046(1)(p) and 480.0485 and Florida Administrative Code Rule 64B7-26.010(1), (3) and (4).

Respondent timely filed an Election of Rights form in which he requested an administrative hearing pursuant to sections 120.569(2)(a) and 120.57(1). On October 31, 2016, the Department referred the matter to the Division for assignment of an administrative law judge. On November 10, 2016, the case was noticed for hearing to commence December 14, 2016, and it proceeded as scheduled.

On December 9, 2016, the parties filed a Witness list and Joint Pre-hearing Stipulation that contained stipulations of fact which, where relevant, have been incorporated into the Findings of Fact below.

At the hearing, Joint Exhibit 1 was admitted into evidence. Petitioner’s Exhibits 1-4,1/ including the deposition testimony of Jennifer Mason, a licensed massage therapist (Exhibit 1), were admitted into evidence. Petitioner presented the live testimony of the client, D.W. Respondent testified on his own behalf and

presented the testimony of Shelby Field.2/ Respondent did not offer any additional exhibits.

The one-volume Transcript was filed on January 10, 2017. On January 11, 2017, a Notice of Filing Transcript was issued, directing the parties to file their post-hearing submissions on or before 5:00 p.m. on January 20, 2017. On January 18, 2017, Respondent submitted a letter seeking an extension of time in which to file a proposed recommended order (PRO). Respondent stated that he was going to “seek out a lawyer.”3/ Petitioner objected to the extension, however, on January 19, 2017, the undersigned issued an Order that granted the parties until

5:00 p.m. on February 17, 2017, to submit the PROs. Both parties timely submitted their PROs, and each has been considered in the rendering of this Recommended Order.

Except as otherwise indicated, citations to the Florida Statutes or rules of the Florida Administrative Code refer to the versions in effect in May 2016, the time during which the violation was allegedly committed.

FINDINGS OF FACT

Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following factual findings are made:

1. The Department 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 all times material to the allegations in this proceeding, Respondent was a licensed massage therapist in the State of Florida, having been issued license number MA 80938. During May 2016 Respondent worked at Massage Envy (“M.E.”) as a massage therapist. M.E. is a spa facility offering massage services.

3. D.W. is a 46-year-old female with significant back issues. D.W. was in a boating accident as a child, and has had at least eight back surgeries in attempts to alleviate her back pain.

4. Since 2012, D.W. has had numerous massages to help ease her back pain. She initially received massages through her chiropractor’s massage therapist. The chiropractor’s massage therapist was unable to continue, and D.W. started obtaining massages at M.E.

5. D.W. obtained free massages from M.E. when she participated as a “mystery shopper”4/ for M.E. Following that experience, D.W. became a client of M.E. D.W. usually received full-body massages on a monthly basis,5/ except when she had the back surgeries.

   
   

   
   

6. On May 27, 2016, D.W. contacted M.E. requesting a massage appointment. She was assigned Respondent as her regular masseuse was unavailable. D.W. arrived for the massage and met Respondent. The massage was scheduled for two hours.

7. D.W. and Respondent discussed D.W.’s back pain.

   
   

   Respondent left the treatment room to allow D.W. time to completely disrobe and cover herself with the drape cloth or sheet. During the first half of the massage, D.W. was face down while Respondent stretched her out. She was comfortable with this part of the massage as she remained fully covered by the sheet.

8. Approximately half way through the massage, Respondent briefly left the room, and D.W. turned over to be face up for the remainder of the massage.

9. In the face-up position, Respondent began the next phase of the massage. While he was working on D.W.’s left leg, Respondent bumped her vagina. D.W. initially thought the touching was an accident; however, Respondent kept touching her clitoris.

10. Respondent then put two to three fingers inside D.W.’s vagina. D.W. was “very scared,” and initially felt frozen in fear. After a few minutes Respondent asked if he needed to stop the massage. After a few seconds, D.W. was able to say, “It’s

    
    

    
    

    making me feel like I have to pee, please stop.” Respondent stopped.

11. Respondent then asked if D.W. wanted to have her hands or feet massaged as there were a couple of minutes remaining in her appointment. D.W. did not want Respondent’s hands touching her hands; she indicated he could message her feet. Respondent finished the massage by working on D.W.’s feet.

12. After the massage ended, D.W. dressed. D.W. went to the restroom, received a cup of water from Respondent and checked out at M.E.’s front desk. D.W. went to the parking lot, called the M.E. manager, and told the manager what happened.

13. D.W. then went home. D.W. told her husband what had happened and the two of them returned to M.E. The Largo Police Department was called and a report was filed.

14. While testifying about this very intimate type of contact, D.W.’s demeanor was distressed. She cried as if it were painful to recount. D.W. now is unable to use massage therapy to treat her back pain. Additionally, D.W. has trouble sleeping, and is unable to have sex because she considers what Respondent did to her was “foreplay.”

15. Respondent denied that he engaged in any form of sexual activity with D.W. Respondent attempted to blame D.W.’s allegation as either a “counter-transference” or “transference” event. Respondent postulated that the counter-transference or

    
    

    
    

    transference is “where the client imposes a negative feeling or a negative association upon their therapist after something is awoken during massage.” Respondent agreed that D.W. had been getting massages for years, and that she would be accustomed to the massage experience. Respondent also agreed that there was nothing special about the massage he gave to D.W. Respondent’s testimony is not credited.

16. Massage therapy training 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 rule 64B7-30.001, it would not be possible to inadvertently touch a client's genital area.

17. The placement of a massage therapist's finger (or fingers) 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. There is no therapeutic value to massaging or penetrating the vagina, and there is no circumstance by which a massage therapist should touch a client’s vagina.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 480.046(4), 120.569 and 120.57(1), Florida Statutes.

    
    

    
    

19. 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).

    
    

20. Disciplinary provisions must be strictly construed in favor of the licensee. Elmariah v. Dep't of Prof’l Reg., 574

    So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep't of Prof’l Reg., 534 So. 782, 784 (Fla. 1st DCA 1988).

21. The Administrative Complaint charged Respondent with violating sections 480.046(1) and 480.0485. These statutory provisions state the following:

    
    

    
    

    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):

    
    

    * * *

    
    

    (p) 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.

    
    

22. The Administrative Complaint charged that Respondent violated rule 64B7-26.010. This rule provides the following:

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

       
       

    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 or to make

       
       

       
       

       arrangements to engage in sexual activity with any client.

       
       

    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. Nothing herein shall be interpreted to prohibit a licensed massage therapist, duly qualified under Rule 64B7-31.001, F.A.C, from practicing colonic irrigation.

       
       

23. There is clear and convincing evidence to support the allegations in the Administrative Complaint.

24. Penalties in a licensure discipline case may not exceed those in effect at the time a violation was committed. Willner

    v. Dep’t of Prof’l Reg., Bd. of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied, 576 So. 2d 295 (Fla. 1991).

25. Section 456.079 requires the Board of Massage Therapy to adopt disciplinary guidelines for specific offenses. Penalties imposed must be consistent with any disciplinary guidelines prescribed by rule. See Parrot Heads, Inc. v. Dep't of Bus. & Prof'l Reg., 741 So. 2d 1231, 1233-34 (Fla. 5th DCA

    1999).

    
    

    
    

26. The Board of Massage Therapy adopted Florida Administrative Code Rule 64B7-30.002(3)(o)2. The rule in effect in May 2016 provided that the discipline for a violation of the sexual misconduct prohibition in section 480.0485 should be a fine of $2,500.00 and revocation of the license.

27. At that time, rule 64B7-30.002(4) set forth possible aggravating and mitigating circumstances. No circumstances were shown here that would warrant deviation from the guideline

penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding Respondent guilty of violating section 480.0485 and rule 64B7-26.010; and imposing a fine of $2,500 and revoking his license to practice massage therapy.

DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

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 22nd day of February, 2017.

ENDNOTES

1/ In the Exhibit list, Exhibit 2 has four subparts:

2-1 Schedule Editor Print Screen, 2-2 6/1/16 Statement, 2-3 Termination Letter, and 2-4 DVD. Sub-part 2-3, the

Termination Letter, is not attached. Subpart 2-4 is Joint Exhibit 1.

2/ Ms. Field offered no testimony involving direct knowledge of the specific allegations involving D.W.

3/ No appearance was entered by an attorney; however, Respondent timely filed his own proposed recommended order.

4/ No explanation of what a “mystery shopper” is or does, although D.W. went through some type of training to become a mystery shopper.

5/ If her finances permitted, D.W. would get massages more frequently.

COPIES FURNISHED:

Murtagh D. Meyler, L.M.T. 5700 67th Avenue

Pinellas Park, Florida 33781

John A. Wilson, Esquire Department of Health Prosecution Services Unit Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Amy C. Thorn, Esquire Department of Health Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Claudia Kemp, JD, Executive Director Board of Massage Therapy

Department of Health

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

Nichole C. Geary, General Counsel 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: 16-006384PL

Orders for Case No: 16-006384PL