STATE OF FLORIDA BOARD OF MASSAGE THERAPY DEPARTMENT OF HEALTH, Petitioner, V. CASE NO. 2018-04422 KENNETH JAMES DIPERSIO, L.M.T., Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Massage Therapy (“Board”) against Respondent, Kenneth James Dipersio, L.M.T., and alleges: 1. Petitioner is the state department charged with regulating the practice of massage therapy pursuant to section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 480, Florida Statutes. 2. At all times material to this Complaint, Respondent was a licensed massage therapist in the State of Florida, having been issued license number MA 11149. 3. | Respondent's mailing address of record is 5632 Bee Ridge Road, Suite 101, Sarasota, Florida 34233. 4. An additional address for Respondent is 249 11 Avenue Northeast, St. Petersburg, Florida 33701. 5. On or about January 31, 2018, Respondent performed massage therapy on Patient M.S., a then 57-year old female. 6. During the course of the massage, Patient M.S. was clothed. 7. While massaging Patient M.S.’ thigh, Respondent placed the palm of Respondent's hand on top of Patient M.S.’s vaginal area and then cupped Respondent's fingers around Patient M.S." vagina. 8. Later during the massage, Respondent rested Respondent's hand on top of Patient M.S.’ pubic bone. 9. | Respondent’s actions were outside the scope of practice and/or the scope of generally accepted examination or treatment. 10. Section 480.046(1)(p), Florida Statutes (2017-2018), provides that a massage therapist is subject to discipline for violating any provision of Chapter 480 or Chapter 456, or any rules adopted pursuant thereto. DOH v. Kenneth James Dipersio, L.M.T. Page 2 of 6 DOH Case No.: 2018-04422 11. Section 480.0485, Florida Statutes (2017-2018), prohibits sexual misconduct in the practice of massage and specifically 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 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. 12. Rule 64B7-26.010(1) and (3) of the Florida Administrative Code (2017-2018), absolutely prohibit sexual activity by any person or persons in a massage establishment, and provides that 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. Rule 64B7-26.010(4), defines “sexual activity”, pertinent part as: (4) [A]ny 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, DOH v. Kenneth James Dipersio, L.M.T. Page 3 of 6 DOH Case No.: 2018-04422 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. 13. Respondent engaged in sexual misconduct in the practice of massage by using the massage therapist-patient relationship to induce or attempt to induce, or to engage or attempt to engage Patient M.S. in sexual activity outside of the scope of practice or the scope of generally accepted examination or treatment in one or more of the following ways: a. By placing the palm of his hand on top of Patient M.S.’s vaginal area and/or cupping Respondent's fingers around Patient M.S.’ vagina; and/or b. By placing Respondent's hand on Patient M.S.’s pubic bone. 14. Based on the foregoing, Respondent violated Section 480.046(1)(p), Florida Statutes (2017-2018), through a violation of Section 480.0485, Florida Statutes (2017-2018), and/or Rule 64B7- 26.010(1) and/or (3), Florida Administrative Code. WHEREFORE, the Petitioner respectfully requests that the Board enter an order imposing one or more of the following penalties: DOH v. Kenneth James Dipersio, L.M.T. Page 4 of 6 DOH Case No.: 2018-04422 permanent revocation or 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. SIGNED this 14* day of August, 2020. FILED Scott A. Rivkees, M.D. DEPARTMENT OF HEALTH State Surgeon General DEPUTY CLERK CLERK: Amanda Morales DATE: 8/14/2020 Zs/ Mary A. Wessling Mary A. Wessling Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar # 93590 (850) 558-9856 (850) 245-4684 Mary.Wessling@flhealth.gov PCP: 8.13.2020 PCP Members: Havard & Whitridge DOH v. Kenneth James Dipersio, L.M.T. Page 5 of 6 DOH Case No.: 2018-04422 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. A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule 28-106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule 28-106.2015(5), Florida Administrative Code. Please be advised that mediation under Section 120.573, Florida Statutes, is not available for administrative disputes involving this agency action. 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. Kenneth James Dipersio, L.M.T. Page 6 of 6 DOH Case No.: 2018-04422

Docket for Case No: 20-004754PL

Orders for Case No: 20-004754PL