The Issue The issues to be determined in this matter are whether Respondent, BBK Florida, LLC, a licensed massage business, allowed an unlicensed person to practice massage therapy; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Department is the state agency charged with regulating the practice of massage therapy in Florida. See § 20.43(3)(g)21., and ch. 456 and 480, Fla. Stat. BBK is a licensed massage business in the state of Florida. BBK operates under the name “BBK Massage Spa” and is located in Ocoee, Florida. The Department brings this action alleging that BBK allowed an unlicensed person to practice massage at its establishment. The Department charges BBK with violating section 480.046(1)(f) and (p), Florida Statutes. Section 480.046(1)(f) prohibits the “[a]iding, assisting, procuring, or advising any unlicensed person to practice massage contrary to the provisions of this chapter or to a rule of the department or the board.” The Department’s allegations focus on the activities of Xiaohui Lu at BBK on January 17, 2017. Ms. Lu is not, nor has she ever been, licensed to practice massage in the state of Florida. At the final hearing, the Department presented the testimony of Amy Harmon, a Department Investigation Specialist. Ms. Harmon has served as an Investigation Specialist since 2010. She conducts approximately 700 to 1,000 investigations a year. Ms. Harmon inspects several different types of businesses including massage facilities, optical establishments, and pain management institutions. Her goal is to inspect each business for which she is responsible at least once a year. Ms. Harmon explained that the primary reason for inspecting massage establishments is to safeguard the public against health risks. As stated in section 480.033(3), “massage” involves: [T]he manipulation of the soft tissues of the human body with the hand, foot, arm, or elbow, whether or not such manipulation is aided by hydrotherapy, including colonic irrigation, or thermal therapy; any electrical or mechanical device; or the application to the human body of a chemical or herbal preparation. Consequently, the Florida Legislature has specifically determined that: [T]he practice of massage is potentially dangerous to the public in that massage therapists must have a knowledge of anatomy and physiology and an understanding of the relationship between the structure and the function of the tissues being treated and the total function of the body. Massage is therapeutic, and regulations are necessary to protect the public from unqualified practitioners. It is therefore deemed necessary in the interest of public health, safety, and welfare to regulate the practice of massage in this state. § 480.032, Fla. Stat. In light of this legislative directive, Ms. Harmon explained that when she inspects a massage business, her goal is to ensure that customers are not touched or treated in an inappropriate manner. Ms. Harmon remarked that licensed massage therapists receive extensive training in anatomy and physiology. They are specifically taught how to manipulate soft tissue without damaging a person’s muscles, neck, or spine. Therefore, she ensures that all persons who provide massages are properly licensed in Florida, and that their licenses are appropriately displayed in the business. She also examines the massage facility’s sanitary conditions. On the morning of January 17, 2017, Ms. Harmon conducted a routine inspection of BBK. Ms. Harmon relayed that BBK is located in a strip mall. When she entered the store, she walked into a large lobby area with a reception desk and several chairs. A single hallway led straight back from the lobby and ended in a kitchen space. Several doorways lined the hallway. At least three of these rooms are used for massage services. Curtains partition the massage rooms from the hallway. Ms. Harmon did not find anyone present in the lobby. Therefore, she headed toward the hallway. As she reached the hallway, she saw a woman walk out of one of the massage rooms. Ms. Harmon observed that the woman (later identified as Ms. Lu) was holding her hands out in front of her with her palms up. Her hands were covered in oil. Ms. Harmon announced to Ms. Lu that she was an inspector with the Department. Ms. Harmon then asked Ms. Lu if she had a message therapy license. Ms. Lu responded that she did not have a massage license, but she was not performing a massage. Instead, Ms. Lu produced a body wrapper license issued by the Florida Department of Business and Professional Regulation, as well as a New York drivers license. Ms. Harmon then walked into the massage room that Ms. Lu had just vacated. There, she found a man lying on a massage table draped in a sheet. Ms. Harmon did not observe any body wrapping materials or supplies in the room. (Neither did Ms. Harmon subsequently find any body wrapping advertisements on the premises.) Ms. Harmon deduced that the oil on Ms. Lu’s hands was used for massages, not body wrapping treatments. Consequently, Ms. Harmon concluded that the customer was prepared to receive a massage, and that Ms. Lu was going to provide it. Ms. Harmon did not ask Ms. Lu if she was, in fact, giving a massage to the man on the table. Neither did she actually see Ms. Lu physically touch the customer. However, based on her observations, she firmly believed that when she walked into BBK, Ms. Lu was in the process of providing a massage to the man lying on the table in the massage room. At that point, another woman, who identified herself as Min Zhang, emerged from the last room down the corridor (the kitchen). Ms. Zhang produced a Florida massage therapy license for Ms. Harmon, as well as a Florida drivers license. Ms. Zhang then entered the massage room to attend to the customer. Ms. Harmon further recounted that, in another room, she found a suitcase belonging to Ms. Lu by a bed. Ms. Harmon learned from the two women that Ms. Lu had only arrived at BBK that morning. In response to the Department’s allegations, BBK flatly denied that Ms. Lu was practicing massage when Ms. Harmon inspected its business on January 17, 2017. Instead, BBK asserted that Ms. Zhang, who is properly licensed, was the individual massaging the client at the time Ms. Harmon entered the establishment. Ms. Zhang testified at the final hearing. Ms. Zhang was the store manager on the date of the inspection. Ms. Zhang holds a valid massage therapy license with the State of Florida. Ms. Zhang declared that January 17, 2017, was Ms. Lu’s first day at BBK. She had never met or spoken to Ms. Lu before that morning. Consequently, Ms. Zhang claimed that she was unaware that Ms. Lu did not have a massage therapy license when Ms. Harmon arrived at the business. Ms. Zhang understood that BBK hired Ms. Lu through the internet. She did not participate in BBK’s decision to allow Ms. Lu to work at its facility. Ms. Zhang relayed that on the morning of the inspection, she was the first employee to arrive at BBK. Ms. Lu appeared shortly thereafter. Ms. Zhang introduced herself, then showed Ms. Lu around the store. Before long, the client showed up. Ms. Zhang testified that she led the client back to massage room 3 for an hour-long massage. According to Ms. Zhang, she, not Ms. Lu, was massaging the customer when Ms. Harmon entered BBK. Ms. Zhang stated that she heard Ms. Harmon walk in the front door. She then left the massage room and met Ms. Harmon in the lobby. Ms. Zhang testified that Ms. Lu was not in a massage room or the hallway. Instead, she was located back in the kitchen. After Ms. Zhang exited massage room 3, she saw Ms. Lu walking to the lobby to meet Ms. Harmon. Thereafter, both Ms. Zhang and Ms. Lu produced their licenses and identifications for Ms. Harmon. Ms. Zhang expressed that it was at this time that she learned that Ms. Lu was not a licensed massage therapist. Ms. Zhang readily acknowledged that a person is not allowed to practice massage therapy without a license. Ms. Zhang professed that she was well aware that Ms. Lu could not have massaged any BBK clients unless she held a license in Florida. Ms. Zhang emphasized that neither she, nor BBK, would allow anyone to provide massages without a license. Ms. Zhang maintained that Ms. Lu never touched the client. BBK also presented the testimony of Juan Feng. Ms. Feng identified herself as the main manager of BBK. Ms. Feng runs the business, while Ms. Zhang manages the day-to-day operations. Ms. Feng was not present at BBK during Ms. Harmon’s inspection on January 17, 2017. According to Ms. Feng, BBK first communicated with Ms. Lu after it posted a job opening for a massage therapist over the internet. Ms. Feng conveyed that BBK’s advertisement specifically stated that a Florida massage license was required for the position. Ms. Lu, who was living in New York, called BBK about the job. Ms. Feng testified that Ms. Lu represented that she was licensed in both New York and Florida. Because Ms. Lu appeared qualified for the massage therapist job, BBK invited her to come to Florida for a trial employment period. Ms. Lu travelled by bus. She arrived in Florida on the afternoon of Monday, January 16, 2017. She showed up at BBK for the first time on Tuesday morning, January 17, 2017 (the date of Ms. Harmon’s inspection). Ms. Feng remarked that, while she had spoken with Ms. Lu approximately three times over the phone, she never met her in person before the Department’s inspection. Ms. Feng learned about the inspection from Ms. Zhang, who called her just after Ms. Harmon left. Ms. Feng repeated that the first time she, or anyone else at BBK, was aware that Ms. Lu did not have a Florida massage therapy license was during Ms. Harmon’s inspection. Ms. Feng pronounced that she would never have hired Ms. Lu if she had known that Ms. Lu did not have a valid Florida license. Ms. Feng expressed that after the inspection, she explained to Ms. Lu that she would not be allowed to work at BBK without the required massage license. Ms. Feng represented that Ms. Lu never returned to BBK following Ms. Harmon’s inspection. Ms. Feng understood that Ms. Lu went back to New York. (Neither party called Ms. Lu to testify at the final hearing.) Although Ms. Feng was not present at BBK during the inspection, she testified that she has seen the store’s security video recording of Ms. Harmon’s visit. According to Ms. Feng, BBK has four video cameras mounted inside the facility. Two cameras survey the lobby, and two cameras are positioned at either end of the hallway. However, Ms. Feng disclosed that the video recording from January 17, 2017, no longer exists. The video footage is automatically recorded over after seven days. Therefore, while she claimed to have watched the video shortly after Ms. Harmon departed the store, BBK could not produce the video for the Department or at the final hearing. At the final hearing, Ms. Feng described what she watched on the video. Ms. Feng relayed that she saw Ms. Zhang and Ms. Lu arrive in the morning. But, when the client appeared, it was Ms. Zhang who escorted him back to massage room 3. Later, after Ms. Harmon entered the lobby, Ms. Feng testified that Ms. Zhang, not Ms. Lu, exited massage room 3. Ms. Zhang walked across the hall to the bathroom, then went to meet Ms. Harmon in the lobby. At that point, Ms. Feng saw Ms. Lu emerge from the kitchen and approach the front of the store. Ms. Zhang and Ms. Lu met Ms. Harmon in the lobby. Ms. Harmon then sat down in the lobby, wrote her report, and left the store.4/ Ms. Feng declared that contents of the video establish that Ms. Lu never went into massage room 3. Based on her review, Ms. Feng opined that when Ms. Harmon saw Ms. Zhang advancing up the hallway, she mistakenly determined that it was Ms. Lu coming out of the massage room. Based on the competent substantial evidence provided at the final hearing, the clear and convincing evidence in the record establishes that BBK aided, assisted, or advised an unlicensed person (Ms. Lu) to practice massage in violation of section 480.046(1)(f) and (p). Accordingly, the Department met its burden of proving that BBK should subject to an administrative sanction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order: finding that BBK Florida, LLC, violated section 480.046(1)(f) and (p); and imposing an administrative fine in the amount of $1,000, as well as a reprimand. DONE AND ENTERED this 13th day of March, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 13th day of March, 2018.
The Issue The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of provisions of Florida Administrative Code Rule 64B7- 26.010 and sections 480.046(1)(o) and 480.0485, Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact 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. At all times material to this proceeding, Ms. Xu was a licensed massage therapist in the state of Florida, holding license number MA56426. During all times relevant to the complaint, Ms. Xu was employed by Massage Elite, located at 800 East Hallandale Beach Boulevard in Hallandale Beach, Florida. On November 22, 2010, Officer F.C., working in an undercover capacity with Officer C.T., went to Massage Elite, where they were greeted by Ms. Xu, who introduced herself as Diana. Ms. Xu stated that a one-hour full body massage was $70.00. They each paid, and Officer F.C. was taken to a separate room and told to disrobe and lie face down. Minutes later, Ms. Xu came into the room and began a massage. After some time, Ms. Xu asked Officer F.C. to turn over. After he did so, Ms. Xu began touching Officer F.C. on his penis, asking, "Do you want me to massage this?" Officer F.C. asked her, "How much?" Ms. Xu replied, "Sixty dollars." Officer F.C. said he only had $30.00, and Ms. Xu replied, "No, not for thirty, maybe next time." The massage was then completed. On November 23, 2010, Officer F.C. returned to Massage Elite. Other arrests were made at that time, but Ms. Xu was not on the premises. On November 30, 2010, Officer F.C. returned to Massage Elite with Officer R.A. He asked for Diana, and they called her from the back. Ms. Xu came in. Officer F.C. made a positive identification, based upon her appearance, that Ms. Xu was the same woman who had earlier introduced herself to him as Diana, and had given him the massage. She was placed under arrest. Ms. Xu's contrary testimony, to the effect that she was not at work on November 22, 2010, that she had never seen Officer F.C. before November 30, 2010, is not credible, and is rejected. Ms. Wei Zhou, Ms. Xu's daughter, testified through deposition that she came to Florida for Thanksgiving in 2010, and that her mother stayed with her the entire time in a hotel. She said she could not remember exactly when she was there or if she arrived before or after Thanksgiving Day. At another point in her testimony, she said she arrived around the 19th or 20th of November. She said she couldn't remember if her grandmother traveled with her or not. She indicated that she did not know what kind of work her mother did. Her testimony, to the extent it was intended to establish that Ms. Xu did not work at Massage Elite on November 22, 2010, was not credible. Her vague account of events did not cast doubt on Officer F.C.'s clear and convincing testimony. As noted in the deposition testimony of Ms. Jennifer Mason, there is no reason for a licensed massage therapist to ever touch the genitalia of a patient. Officer F.C. paid for a massage, and Ms. Xu began to give him a massage. She was governed by the requirements of the massage therapist-patient relationship. Ms. Xu's actions on November 22, 2010, were outside the scope of generally accepted treatment of massage therapy patients. Ms. Xu used the massage therapist-patient relationship to attempt to induce Officer F.C. to engage in sexual activity and to attempt to engage him in sexual activity. Ms. Xu engaged in sexual misconduct in the practice of massage therapy. There is no evidence that Ms. Xu has ever had any prior discipline imposed against her license.
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 finding Ms. Ranjie Xu in violation of Florida Administrative Code Rule 64B7-26.010 and section 480.0485, Florida Statutes, constituting grounds for discipline under section 480.046(1)(o), Florida Statutes; revoking her license to practice massage therapy; imposing a fine of $1000.00; and imposing costs of investigation and prosecution. DONE AND ENTERED this 4th day of April, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 4th day of April, 2017.
The Issue The issues to be determined in this case are whether the Respondent, Lauren Dillman-Bell, obtained her Florida license to practice massage therapy through fraud or error, in violation of section 456.072(1)(h), Florida Statutes (2009), or made misleading, untrue, deceptive, or fraudulent representations on her application for licensure, in violation of section 456.072(1)(w), both of which constitute violations of section 480.046(1)(o); and if so, the appropriate sanction. (Unless otherwise indicated, citations to the Florida Statutes and rules of the Florida Administrative Code refer to the versions in effect when the Respondent’s license was issued on July 1, 2009.)
Findings Of Fact The Petitioner 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 (2016). At all times material to the Administrative Complaint, the Respondent was licensed to practice massage therapy in the State of Florida, having been issued license number MA 56509 on or about July 1, 2009. When the Respondent applied for licensure in June 2009, she answered “no” to a question whether she had “ever been convicted of, or entered a plea of guilty, nolo contendere, or no contest to a crime in any jurisdiction other than a minor traffic offense.” When the Respondent’s license was issued, the Petitioner was unaware that the answer to the question on the application should have been “yes.” This was not brought to the Petitioner’s attention until June 2013. The Petitioner investigated, and the Administrative Complaint was filed. It is clear from the evidence presented at the hearing that the Respondent entered the following pleas in the District Court of Oklahoma County, Oklahoma, in December 2005: guilty to one count of possession of a controlled, dangerous substance with intent to distribute; guilty to one count of possession of a controlled, dangerous substance (methamphetamine) with intent to distribute; guilty to one count of possession of a stolen vehicle/receiving stolen property; and guilty to two counts of possession of a weapon. Although the Respondent did not appear or testify at the hearing, it can be inferred that she knew or should have known that her answer to the question on her license application about criminal convictions and guilty pleas was false. Even if the answer were unintentionally false, the Petitioner relied on it when it issued the Respondent’s license without conducting any investigation into the Respondent’s fitness for licensure notwithstanding the guilty pleas. (It also could be inferred from the Respondent’s failure to pursue her request for a hearing, and her failure to provide effective contact information so as to receive notices regarding the case, that she has withdrawn and waived her disputes as to the facts alleged in the Administrative Complaint.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued: (1) finding that the Respondent violated section 480.046(1)(o) by violating sections 456.072(h) and (w); and (2) revoking her massage therapy license. DONE AND ENTERED this 30th day of May, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 30th day of May, 2017. COPIES FURNISHED: Lauren Dillman-Bell, L.M.T. 5033 Lords Avenue Sarasota, Florida 34231 Lealand L. McCharen, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Jaquetta Johnson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Claudia Kemp, JD, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed)
The Issue The issues are whether the Respondent, a licensed massage therapist, violated applicable sections of the Massage Practice Act, by attempting to engage in prohibited sexual activity with a client or patient; and, if so, what discipline should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of massage therapy in Florida under section 20.43 and chapters 456 and 480, Florida Statutes (2015).1/ In 2015, the Respondent was licensed to practice massage therapy in Florida, having been issued license number MA 67956 by the Board of Massage Therapy. In November 2015, the Vice Unit of the Hillsborough County Sheriff’s Office conducted an operation to investigate a complaint that prostitution was taking place at VIP Massage (VIP), located at 5915 Memorial Highway in Tampa, which advertised “hot, beautiful, friendly Asian ladies” under the “body rub” section of advertisements on an internet website. On November 12, 2015, Detective M.D., who was working undercover, entered VIP. He was met by the Respondent, and she confirmed the appointment for a one-hour massage that he had made the day before, led him to a massage room, and collected the $60 charge. She then left the room with the money and returned after M.D. disrobed, except for his boxer shorts, and got on the massage table. The Respondent performed the hour massage in an appropriate manner and left to get M.D. some water. When she returned she asked him why he did not remove his boxer shorts. He said he was shy. She then asked if he was the police. He said, no, he was just shy. At this point, the Respondent made a hand motion indicating masturbation and asked, “do you want?” M.D. asked, “how much?” She said, “40,” meaning $40. M.D. asked if she would “suck” him, referring to oral sex. The Respondent said, “no, only,” and repeated the hand gesture for masturbation. He declined, saying that he was too shy, and that he was married. This was a pre-arranged signal for his investigative team of law enforcement officers to enter the VIP and make an arrest for prostitution. M.D. identified the Respondent to the arresting officers and explained to the Respondent that she was being arrested for prostitution. The Respondent understood the charge and loudly denied it. The Respondent again denied the charges in her testimony at the hearing. She said there was a misunderstanding between M.D. and her due to her poor command of English (and his inability to speak or understand Chinese). She said that she actually asked M.D. if he wanted an additional hour of massage and that she was referring to the charge for that when she said, “40.” Although there were some minor details of M.D.’s testimony that were inconsistent or misremembered and later corrected, his testimony as to essentially what occurred at VIP on November 12, 2015, was clear and convincing, especially since it was consistent with what was in the arrest affidavit he signed under oath that same day. The Respondent’s argument that it was all a misunderstanding due to a language barrier is rejected. She appeared to have little difficulty understanding some of the conversation between him and her regarding his massage, or understanding the criminal charge when she was arrested, and there was no mistaking the meaning of her hand gesture for masturbation. The Respondent also raised the question why she would have waited until returning with water to ask if he wanted her to masturbate him. While there is some appeal to the logic of her argument at first blush, there are a number of plausible explanations for her timing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: finding the Respondent guilty of violating sections 480.046(1)(p), 480.0485, and 456.072(1)(v); fining her $2,500; revoking her license to practice massage therapy; and awarding costs of investigation and prosecution of this matter to the Petitioner. DONE AND ENTERED this 1st day of November, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 1st day of November, 2017.
The Issue Whether the Respondent, a licensed massage therapist, should be disciplined under section 480.046(1)(p), Florida Statutes (2016),1/ for sexual misconduct in the practice of massage therapy; and, if so, the appropriate discipline.
Findings Of Fact The Petitioner licenses and regulates the practice of massage therapy in Florida, including discipline of licensees who are in violation of the governing statutes and rules. The Respondent holds massage therapy license MA 80154. In March 2017, the Respondent was employed as a massage therapist at Hand and Stone Massage and Facial Spa in Brandon, Florida. On March 29, 2017, Y.B., went to Hand and Stone to use a gift card for a free massage that had been given to him by his fiancée. The Respondent approached and introduced himself to Y.B., and asked if he could help him. Y.B. told him why he was there, and the Respondent led him back to a therapy room. In the therapy room, Y.B. asked the Respondent to focus on his upper body, arms, and fingers. The Respondent had him undress and lay down on the massage table face down, covered only by a sheet. The massage proceeded without incident at first. Then, the Respondent asked for permission to massage Y.B.’s legs. Y.B. granted permission. As the massage proceeded, Y.B. closed his eyes and relaxed. When the Respondent finished massaging the back of Y.B.’s legs, he asked Y.B. to roll over onto his back. As the massage proceeded, Y.B. again closed his eyes and relaxed. After massaging Y.B.’s upper body, arms, and fingers, the Respondent asked, “May I?” Thinking the Respondent was asking if he had permission to massage the front of his legs, Y.B. said, “yes, do what you have to do.” Before Y.B. knew what was happening, the Respondent grasped Y.B.’s penis in his hand and put it in his mouth. Startled and shocked, Y.B. opened his eyes, sat up, and made the Respondent stop, saying “Whoa, whoa, whoa, what do you think you’re doing? I’m not gay.” At that point, the Respondent stopped and brought Y.B. water and a towel. What the Respondent did was very upsetting to Y.B. He was so upset and angry that he was distracted while being checked out by another employee of Hand and Stone. He unwittingly presented his gift card and answered questions. He discovered later that he not only had paid for the massage but also had given the Respondent a tip. Y.B. continued to be bothered by what happened and returned to Hand and Stone the next day to confront the Respondent and have him explain the reason for what he had done the day before. During this confrontation, the Respondent admitted to his misconduct and tried to apologize, saying “I thought we had a connection.” Y.B. continues to be affected by what the Respondent did to him. He received counseling through his employer. He still is less affectionate than he used to be, even towards his family. To this day, he still becomes anxious when reminded of the incident.
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 the Respondent guilty as charged; revoking his license; and fining him $2,500. DONE AND ENTERED this 23rd day of January, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 23rd day of January, 2018.
The Issue 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, or in the practice of a health profession, in violation of section 456.072(1)(v), Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Department, Board of Massage Therapy (Board), 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. At all times material to the complaint, Ms. Wang was a licensed massage therapist within the State of Florida, having been issued license number MA 80935 on or about December 31, 2015. Ms. Wang's address of record is 9844 Sandalfoot Boulevard, Boca Raton, Florida 33428. Ms. Wang began working as a massage therapist at Wellness Spring Center (Wellness) 7865 West Sample Road in Coral Springs, Florida, on May 2, 2016. On or about May 26, 2016, the Coral Springs Police Department (CSPD) conducted a prostitution investigation at Wellness. Detective Gariepy, a detective in the vice, intelligence, and narcotics unit of the CSPD, working undercover, requested a one-hour full body massage and was advised it would cost $60.00. Detective Gariepy paid the $60.00 in official investigative funds, and he was escorted to a private room. Detective Gariepy got undressed and lay face down on a massage table. Ms. Wang provided Detective Gariepy with a massage. Ms. Wang began working on Detective Gariepy's back side, and later asked him to flip over onto his back, which he did. She then massaged the front side of his body. She put her hand on his testicles and then on his penis, and began stroking it in a sexual manner. After only a few seconds, Detective Gariepy stopped her, saying he was a married man. Detective Gariepy testified on cross-examination that Ms. Wang never asked him for any money when she was touching him. Detective Gariepy got dressed and left the massage establishment. CSPD officers entered the massage establishment and made contact with Ms. Wang, who was then positively identified by Detective Gariepy as the therapist who massaged him. It was stipulated by the parties prior to hearing that Ms. Wang provided Detective Gariepy with a massage. Ms. Wang's contrary testimony at hearing, to the effect that the person to whom she gave a massage that day was not Detective Gariepy was not credible and is rejected. Her testimony that she did not inappropriately touch Detective Gariepy's testicles and penis, was not credible and is rejected. While Detective Gariepy admitted he was unable to pick out a photograph of Ms. Wang a little over two years later in a deposition, he explained that as he was receiving the massage, he focused on exactly what Ms. Wang was wearing and concentrated on her physical features so that he could positively identify her to the arresting officers. The parties stipulated prior to hearing that Ms. Wang was positively identified by Detective Gariepy as the therapist who had massaged him. His testimony was credible. On May 26, 2016, Ms. Wang used the massage therapist- patient relationship to attempt to engage Detective Gariepy in sexual activity. Ms. Wang engaged in sexual misconduct in the practice of massage therapy. Ms. Wang has never had any prior discipline imposed against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Massage Therapy, enter a final order finding Ms. Yangling Wang in violation of sections 480.0485 and 456.072(1)(v), Florida Statutes, constituting grounds for discipline under section 480.046(1)(p), Florida Statutes; imposing a fine of $2,500.00; revoking her license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 24th day of October, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 24th day of October, 2018. COPIES FURNISHED: Gerald C. Henley, Esquire Kimberly L. Marshall, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Hongwei Shang, Esquire The Law Office of Hongwei Shang, LLC 7350 Southwest 89th Street, Suite 100 Miami, Florida 33156 (eServed) Louise Wilhite-St Laurent, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Kama Monroe, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed)
The Issue The issues in this case are whether Respondent violated Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1) and (3), Florida Administrative Code, by engaging in sexual misconduct with a massage client, and thereby violated Section 480.046(1(k), Florida Statutes; and, if yes, what penalty should be imposed on his license to practice massage therapy.
Findings Of Fact Petitioner, the Department of Health, Board of Massage Therapy (Department), is the state agency responsible for regulating the practice of massage therapy in the State of Florida pursuant to Chapter 480, Florida Statutes. Respondent, Miodrag Visacki (Respondent), was at all times material hereto, a licensed massage therapist in the State of Florida, having been issued license number MA23741. A. R. is a female who resides in Rhode Island. At the times material to this proceeding, A. R. was 18 years old and was on vacation with members of her family in Florida. During this vacation, A. R. and her family were staying in a condominium unit at the Long Boat Key Resort in Longboat Key, Florida. While on vacation in Longboat Key, Florida, A. R. and her aunt decided to obtain massages. They looked at advertisements for massage therapy in the newspaper, and then called telephone numbers listed in several different advertisements. After calling several of the telephone numbers, A. R. and her aunt decided to order massage services from one of the advertisements. On April 21, 2000, A. R.'s aunt called the number listed in one of the advertisements to set up appointments for April 22, 2000. On April 22, 2000, Respondent went to the condominium unit in which A. R. and her aunt and parents were staying to perform the massages. When Respondent arrived there, he identified himself as Michael. Prior to beginning the massages, Respondent requested that A. R. and her aunt fill out client intake forms that elicited information about the purpose or the reason for the massage, the "areas requiring specific attention," and the "areas preferred not to be worked on." On the client intake form, A. R. indicated that she wanted a relaxation massage. With regard to areas requiring special attention, A. R. noted, "legs, neck, and back." A. R. indicated that the areas she preferred not to be worked on were her face and head. Respondent set his table up in the living room of the condominium unit and began the massage of A. R. When Respondent began the massage, A. R.'s aunt was in the kitchen, which was adjacent to the living room. Soon after Respondent began with the massage of A. R., her aunt left the kitchen and went to a bedroom in the condominium unit. At the beginning of her massage, A. R. was wearing a bra and her underwear, was lying on her back, and was covered by a sheet. Approximately 15 minutes after the massage began and after A. R.'s aunt left the kitchen and went to one of the bedrooms, Respondent pulled down A. R.'s bra and proceeded to massage her breasts and nipples. Respondent then asked A. R. if she enjoyed his massaging her breast and nipples to which she responded "no." After A. R. told Respondent that she did not want him to massage her breasts and nipples, he began massaging her ankles, working his way up her legs, vagina, and stomach. Respondent removed A. R.'s underwear during the massage although he never asked for her permission to do so and she never consented to his doing so. In an attempt to stop Respondent from massaging her vagina, A. R. turned over on her stomach. While A. R. was laying on her stomach, Respondent penetrated A. R.'s vagina and anus with his finger while alternately massaging her back, shoulders, and buttocks. During A. R.'s massage, two sheets were used to cover her. Throughout the massage, A. R. was covered from the waist up by one of the sheets. However, Respondent continually moved or adjusted the sheet that was to cover A. R. from the waist down so that it was "half on, half off." At no time prior to or during the massage did A. R. give her consent to Respondent to remove the sheet draping her body so as to expose her buttocks and genitalia. When Respondent finished the massage of A. R., she spoke to her aunt briefly and indicated that something was wrong, but she did not reveal the full details of what had occurred during the massage. Respondent then proceeded to massage A. R.'s aunt. While her aunt was receiving her massage, A. R. went to the bathroom, washed up, changed, and waited for Respondent to finish her aunt's massage. A. R. was in "total confusion" and after Respondent completed her aunt's massage, A. R. urged her to pay Respondent so he could leave the condominium. After Respondent left the condominium, A. R. divulged to her aunt some, but not all, of the details of what had occurred during the massage. A. R. and her aunt then left the condominium and went to the nearby beach area where A. R.'s parents were and informed them about what had occurred during the massage. A. R.'s mother immediately called the Longboat Key Police Department and police officers were dispatched to the condominium that day. When Officer Heidi Blake Micale arrived at the condominium, A. R. confided in and reported to her the conduct engaged in by Respondent during the massage. As part of its investigation of the April 22, 2000, incident, the Longboat Key Police Department contacted Respondent and scheduled an interview with him. On April 24, 2000, Lieutenant Detective Christina Roberts interviewed Respondent regarding the incident. During the interview, Respondent admitted to massaging A. R.'s breasts, including the nipple area. As justification, in explaining his actions, Respondent indicated that he massaged A. R.'s breasts because they were not listed on the intake form as one of the "areas preferred not to be worked on." As evidence of this, Respondent provided Lieutenant Detective Roberts with a copy of the intake form that A. R. had completed prior to the massage. Prior to her encounter with Respondent, and while in Rhode Island, A. R. had received numerous massages for sports related injuries and she continues to receive such massages. However, A. R. has never encountered sexual conduct by any massage therapist other than Respondent. Respondent's actions with regard to massaging A. R.'s breasts and/or nipples may or were likely to cause erotic arousal. Furthermore, this conduct by Respondent constitutes sexual activity and is outside the scope of the practice of massage. Respondent's actions of penetrating A. R.'s vagina and anus may or were likely to cause erotic arousal. This conduct by Respondent constitutes sexual activity and is outside the scope of the practice of massage.
Recommendation Based upon 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 finding Respondent guilty of violating Subsection 480.046(1)(k), Florida Statutes, Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1) and (3), Florida Administrative Code; imposing a $1000.00 fine against Respondent; and revoking Respondent's license to practice massage therapy. DONE AND ENTERED this 18th day of September, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2001. COPIES FURNISHED: Miodrag Visacki 454 North Jefferson Avenue Sarasota, Florida 34237 Gary L. Asbell, Esquire Lori C. Desnick, Esquire Agency for Health Care Administration 2727 Mahan Drive Ft. Knox Building 3, Mail Station 39 Tallahassee, Florida 32308 William H. Buckhalt, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way Bin C06 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
