Findings Of Fact Petitioner is the agency of the State of Florida responsible for the licensing and regulation of the practice of massage therapy. Petitioner also certifies those eligible to perform colonic irrigations in the State of Florida. Chapter 480, Florida Statutes, is known as the "Massage Practice Act". Section 480.033(6), Florida Statutes, defines the term "colonic irrigation" as follows: (6) "Colonic irrigation" means a method of hydrotherapy used to cleanse the colon with the aid of a mechanical device and water. Colonic irrigations can be performed by a licensed massage therapist only at a licensed massage establishment. Section 480.046(1), Florida Statutes, provides certain grounds for the discipline of licensed massage therapists, including the following: (1)(n) Practicing massage at a site, location, or place which is not duly licensed as a massage establishment, except that a massage therapist, as provided by rules adopted by the board, may provide massage services, excluding colonic irrigation, at the residence of a client, at the office of the client, at a sports event, at a convention, or at a trade show. Petitioner's Rule 61G11-30.001(1)(m), Florida Administrative Code, provides, in pertinent part, as follows: (1)(m) . . . a massage therapist may provide massage services, excluding colonic irrigation, at the residence of a client, at the office of the client, at a sports event, at a convention, or at a trade show. . . . At all times pertinent to this proceeding, Respondent was licensed by Petitioner as a massage therapist and was certified by Petitioner to perform colonic irrigations. Respondent's massage therapist license number is 7954. Respondent placed an advertisement in the Yellow Pages of the 1993 telephone book for Miami, Florida, that advertised the following service on an outcall basis: COLON IRRIGATION WITH DISPOSABLES. Lexa Jones is licensed by Petitioner as a massage therapist and is certified to perform colonic irrigations. Ms. Jones teaches massage therapy in Fort Lauderdale, Florida. One of her students brought to her attention the Respondent's advertisement in the Miami Yellow Pages. Ms. Jones testified at the formal hearing that she called the number listed in the advertisement and talked to a woman who stated that she had placed the advertisement. Respondent is the person who placed the advertisement and Ms. Jones clearly believed that she was talking with the Respondent. Ms. Jones was unable to testify that the person with whom she talked by telephone was the Respondent. 1/ Based on the statements made to her by telephone and on the contents of the advertisement, Ms. Jones filed a complaint against Respondent with the Board of Massage. Mr. Charles Frear, an environmental inspector employed by Petitioner, investigated this complaint. On October 6, 1993, Mr. Frear inspected Respondent's home and interrogated her about the services she was performing. The Respondent told Mr. Frear that she had placed the advertisement in the telephone book, but that the service she was performing on an outcall basis was a "colon irrigation" and that she performed this service in hotel rooms. Respondent showed Mr. Frear an enema kit that Respondent said she used to perform the "colon irrigation." The kit, intended for one time use, was sterile and sealed in a plastic carton. The kit included an enema bag, a tube, soap, and lubricating jelly. Respondent told Mr. Frear that she believed that there was a difference between a "colonic irrigation" and a "colon irrigation" since the former involves a large machine that is used to regulate the flow of water while the latter uses an enema bag and a tube. An enema forces liquid into the colon by means of an enema bag and tubing. The injection of liquid through the anal canal and into the colon serves to remove fecal material and bacteria from the colon. A clean, hygienic area is needed for the administration of the enema and its subsequent evacuation on a toilet. There was no evidence that Respondent used any tool in performing her services other than the enema kit and water. Respondent asserts that the enema kit should not be construed to be a "mechanical device" as that term is used in defining "colonic irrigation" by Section 480.033(6), Florida Statutes. The term "mechanical device" as used in Section 480.033(6), Florida Statutes, is not defined by statute or rule. The American Heritage Dictionary of the English Language contains the following definitions pertinent to this proceeding. A "device" means "something devised or constructed for a particular purpose; especially a machine used to perform one or more relatively simple tasks." "Mechanical" means "of or pertaining to machines or tools." A "machine" is "any system, usually of rigid bodies, formed and connected to alter, transmit, and direct applied forces in a predetermined manner to accomplish a specific objective, such as the performance of useful work [or] a simple device, such as a lever, pulley, or inclined plane, that alters the magnitude or direction, or both, of an applied force. ..." A "tool" can mean "anything regarded as necessary to carry out one's occupation or profession." The enema kit is used to force water through a person's anal canal and rectum for the purpose of cleaning the colon. Based on the foregoing definitions and on the expert testimony presented, it is found that an enema kit is a mechanical device. It is further found that an enema is a form of "colonic irrigation".
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein and finds Respondent guilty of violating the provisions of Section 480.046(1)(n), Florida Statutes. It is FURTHER RECOMMENDED that the Petitioner issue to Respondent a letter of reprimand and fine her the sum of $500.00. DONE AND ENTERED this 29th day of December, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1994.
The Issue The issues are whether the Respondent, a licensed massage therapist, violated section 480.046(1)(c), Florida Statutes (2015),1/ by pleading nolo contendere to one count of prostitution; whether she violated section 456.072(1)(x), Florida Statutes, by failing to report the plea to the Board of Massage Therapy within 30 days, as alleged in the Administrative Complaint filed by the Petitioner; and, if so, the appropriate penalty.
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 (2017). At all times material to the Administrative Complaint, the Respondent was licensed to practice massage therapy in Florida, having been issued license number MA 76935 by the Board of Massage Therapy. On January 14, 2016, the Respondent entered a plea of nolo contendere in case 15-CM-019206-A in Hillsborough County, Florida, to one count of prostitution in violation of section 796.07(2)(e), Florida Statutes (2015), a second-degree misdemeanor. Adjudication was withheld, and the Respondent was required to pay $270 in court costs. The Respondent did not report her plea in that case to the Board of Massage Therapy within 30 days of entering the plea. The Respondent stipulated that the crime of prostitution is directly related to the practice of massage therapy, and that offering to perform a sexual act on a massage client during the course of a massage by a licensed massage therapist is outside the scope of the practice of massage therapy. Despite her nolo contendere plea, the Respondent testified in this case that she was not guilty of prostitution. She also testified that she entered the plea without fully understanding its meaning and consequences, and without legal counsel, and that she would not have entered the plea had she known its meanings and consequences. She introduced no other evidence to corroborate or support her claims.
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 section 480.046(1)(c) and section 456.072(1)(x); fining her $1,000; revoking her license to practice massage therapy; and awarding costs of investigation and prosecution of this matter to the Petitioner. DONE AND ENTERED this 29th day of August, 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 29th day of August, 2017.
The Issue Did Respondent, Jianping Liu, L.M.T. (Ms. Liu), induce patients N.D. and J.H. to engage in sexual activity or engage in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment? Did Ms. Liu massage patient N.D. at a location not licensed as a massage establishment and without exemption? Did sexual misconduct occur in Respondent, Queen Spa, Inc.’s (Queen Spa), massage establishment? Did Queen Spa’s backpage.com and anyitem.org advertisements induce or attempt to induce, or engage or attempt to engage, clients in unlawful sexual misconduct? Did Queen Spa fail to include its license number in its backpage.com and anyitem.com advertisements?
Findings Of Fact Section 20.43 and chapters 456 and 464, Florida Statutes, charge the Department with licensing and regulation of massage therapy. At all times material to the allegations in the Administrative Complaint, Ms. Liu was a licensed massage therapist in the State of Florida. She holds license MA 68834. At all times material to the allegations in the Administrative Complaint, Queen Spa was a licensed massage therapy establishment in the State of Florida. It holds license MM 32567 registered at 10915 Bonita Beach Road, Unit 1121, Bonita Springs, Florida 34135, and license MM 32546 registered at 51 9th Street South, Naples, Florida 34102. Patient N.D. was a criminal investigation detective for the narcotics and vice division of Lee County Sheriff’s Office. On March 27, 2014, N.D., as part of an undercover investigation, scheduled an appointment for a massage at Ms. Liu’s home, 9951 Utah Street, Bonita Springs, Florida 34135. During the massage, Ms. Liu touched N.D.’s penis and asked if he wanted it massaged. N.D. offered an additional $50.00 tip and Ms. Liu began masturbating his penis. Ms. Liu was charged with prostitution. On April 30, 2014, Ms. Liu entered into a deferred prosecution agreement with the Lee County State Attorney’s Office. Ms. Liu’s home on Utah Street has a home occupational license issued by the city for a massage therapy administration office. It is not a licensed massage establishment. J.H. is a police officer in the crime suppression unit for the City of Naples, Florida. On May 9, 2014, the Naples Police Department began investigating Ms. Liu’s massage parlor. On July 24, 2014, J.H., as part of an undercover investigation, scheduled a massage appointment with Ms. Liu at the Queen Spa in Naples. After the massage, J.H. gave Ms. Liu a $20.00 tip and she gave him a separate business card. She explained this card was for “special customers” and had a different phone number than her regular card. J.H. scheduled a second massage for July 29, 2014. At some point near the end of that massage, J.H. asked if Ms. Liu offered special or extra services. Ms. Liu replied by asking if he was trouble or a cop. J.H. asked how much it would cost, but Ms. Liu did not take additional payment. Ms. Liu then began masturbating J.H.’s penis until he ejaculated. Ms. Liu contends that penis manipulation is part of a “full body” massage. But she testified during the hearing that this was an additional service to the full body massage. Further, she testified that she only conducted each “extra service,” because J.H. and N.D. requested it. This establishes that masturbation was not part of the massage. It was a sexual service. Testimony of the expert witness Jennifer Mason also proves this fact. Backpage.com is a classified advertising website that contains listings explicitly for prostitution. The adult entertainment section of backpage.com is linked to the majority of the Naples police investigations into prostitution. Ms. Liu posted ads for Queen Spa on backpage.com and anyitem.org. The backpage.com ad titled “erotic pleasure” was listed in the adult services section. The anyitem.org ad titled “erotic pleasure” was listed in the escort section. Ms. Liu contends the postings did not advertise sexual services and that the application on her phone mistranslated the word erotic from Mandarin to English. However, the character of backpage.com and posting the advertisements as adult services, rather than as massage services, supports the conclusion the postings advertised sexual activities. The backpage.com and anyitem.com advertisements did not include the license number of Queen Spa. Touching of the genitalia is not within the scope of a full body massage. Stimulation of the genital area is considered sexual misconduct. It is not part of an ethical massage. There is no therapeutic value to massaging a client’s penis. Sexual innuendo or stimulation is a problem in massage therapy. The industry has worked to remove it from the practice to create a safe and therapeutic environment. Training of massage therapists requires them to “decline, leave the room, terminate the massage” when sexual stimulation is requested by a patient. When discussing “extra services,” Ms. Liu told J.H. about her friend who got into trouble after performing certain acts and that the friend had lost her license; “no license, no job”. Ms. Liu engaged in sexual misconduct with J.H. just three months after she signed a deferred prosecution agreement disposing of the Lee County charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Health, Board of Massage Therapy, enter a final order: finding that Respondent, Jianping Liu, L.M.T., violated sections 480.0485 and 480.046(1)(o), Florida Statutes; revoking her license; requiring the payment of an administrative fines in the amount of $2,750.00; and awarding costs for the investigation and prosecution of this case to the Department. Based on the foregoing Findings of Fact and Conclusions of Law, it is also RECOMMENDED that Petitioner, Department of Health, Board of Massage Therapy, enter a final order: finding that Respondent, Queen Spa, Inc., violated sections 480.046(1)(e) and 480.0465, Florida Statutes, and Florida Administrative Code Rule 64B7-26.010; revoking its license; requiring the payment of an administrative fine in the amount of $4,000.00; and awarding costs for the investigation and prosecution of this case to the Department. DONE AND ENTERED this 2nd day of October, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 2nd day of October, 2015.
The Issue Whether Respondent's license to practice massage in the state of Florida should be disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Petitioner is the state agency charged with regulating the practice of massage in the state of Florida. At all times material to this proceeding, Respondent was a licensed massage therapist in the state of Florida, holding license number MA 0007149. At all times material to this proceeding, Frank Calta's Health Connection (Health Connection) was not licensed as a massage establishment in the state of Florida. At all times material to this proceeding, Respondent did hold a license for a massage establishment in the state of Florida. In October 1989, the Respondent filed a licensure application with Department of Professional Regulation, Board of Medicine, Dietetics and Nutrition Practice Council (Council) for licensure as a Nutritional Counselor. In answering a request for all work experience as a Nutritional Counselor in the application, Respondent listed the Health Connection as an employer from "11/87 to present" (October 1989) and as to the position held, listed "massage therapist". Respondent's answers to questions in the application were under oath wherein he declared under penalty of perjury that his statements were true and correct. As part of this application to the Council, Respondent submitted a notarized statement by Frank Calta of the Health Connection indicating that Respondent had worked as a massage therapist at the Health Connection from "September 5, 1987 to the present" (September 11, 1989). The testimony of both Respondent and Frank Calta at the hearing established that Respondent was not employed by the Health Connection as such in that he was not paid a salary by the Health Connection or that he worked regular hours for the Health Connection. However, this same testimony established that Respondent did perform massages for Frank Calta and members of the Health Connection in between sets of exercises and at the end of the exercises. These massages were conducted at either the Health Connection located at the 4626 Busch Boulevard, Tampa, Florida address or the Florida Avenue Tampa, Florida address during the period from September 5, 1987 through September 11, 1989. The Respondent was compensated for these massages by the individual members or by Frank Calta through the use of the Health Connection. Other than the individual members of the Health Connection, the Respondent did not solicit business from the "general public" as such. It was Respondent's contention that these massages were performed at sports events. However, there was no evidence that the individual members or Frank Calta were involved in any type of sport competition at the time of the massages by the Respondent, but only exercising to keep their bodies in shape. There was sufficient competent substantial evidence to establish facts to show that Respondent was practicing "massage" as that term is defined in Section 480.033(3), Florida Statutes, in an unlicensed "establishment" as that term is defined in Section 480.083(7), Florida Statutes, during the period from September 5, 1987 through September 11, 1989. There was no evidence presented to show that Respondent's license as a massage therapist had ever been disciplined or that any disciplinary action, other than the instant case, had been taken against the Respondent.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, and the penalty guidelines set out in Rule 21L-30.002, Florida Administrative Code, it is, accordingly, RECOMMENDED: That the Board enter a Final Order finding Respondent guilty of violating Section 480.036(1)(n), Florida Statutes, and for that violation issue the Respondent a letter of reprimand and assess an administrative fine of $250.00. DONE and ENTERED this 3rd day of February, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-2613 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner 1. - 4. Adopted in substance as modified in the Recommended Order in Findings of Fact 1, 2, 3, and 4, respectively. 5. - 7. Adopted in substance as modified in the Recommended Order in Finding of Fact 5. 8. - 9. Adopted in substance as modified in the Recommended Order in Finding of Fact 6. Neither relevant nor material to this proceeding other than as to Respondent's credibility as a witness. - 13. Adopted in substance as modified in the Recommended Order in Finding of Fact 7 and 9. 14. Rejected as not supported by competent substantial evidence in the record but in any event, is neither material nor relevant to this proceeding other than as to the extent of the disciplinary action taken. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Respondent has submitted what is titled Proposed Finding of Facts. However, it more of a conclusion of law or legal argument than finding of fact. As to the facts set out in paragraph 5 (unnumbered) see Finding of Fact 7. COPIES FURNISHED: Lois B. Lepp, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Aaron Benjamin 8319 Cross Timbers Drive East Jacksonville, FL 32244 Anna Polk, Executive Director Board of Massage 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner is a state licensing and a regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30 and Chapters 120 and 480, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Albert Abrev, is now and at all material times hereto was a licensed masseur in the State of Florida having been issued license number MA0007125 on December 19, 1986. Respondent's license is valid through December 31, 1990. Beginning in September of 1988, Respondent worked at an establishment known Geisha Massage, located 3222 South Dixie Highway in West Palm Beach, Florida. Geisha Massage has not been issued a license by the Board of Massage. Geisha Massage is a Florida corporation which was officially incorporated on July 5, 1988. Respondent is not an owner, incorporator or officer of Geisha Massage. On or about September 27, 1988, Officer Olsen of the West Palm Beach Police Department was directed by her supervisor, Detective David E. Henry, to perform an undercover investigation at Geisha Massage. The purpose of the investigation was to determine whether the establishment was involved in prostitution. On or about September 27, 1988, Officer Olsen entered Geisha Massage and posed as an applicant looking for work. Officer Olsen claimed to be responding to an ad placed in the newspaper. Officer Olsen was interviewed by the Respondent who advised her that she did not need a license because she would only being doing "body treatments or Swedish shampoo." Officer Olsen was requested to undress so that Respondent could determine how she reacted in front of a male without clothing. During the job interview, Respondent indicated to Officer Olsen by pointing to his mouth and to his groin and shaking his head that she would not be expected to engage in sexual intercourse or oral sex. However, Respondent indicated by a hand gesticulation that she would be expected to provide "hand jobs." Officer Olsen's interpretation of Respondent's gestures were confirmed by one of the other employees of Geisha Massage. Officer Olsen was told by Respondent that she was hired and that she was to return to work that evening. Respondent was the only licensed massage therapist on the premises at Geisha Massage. There were at least three female employees of Geisha Massage who provided "body treatments" to customers. None of these employees were licensed massage therapists at the time of the incidents in question. One of them, Victoria Ann Seely, was in the process of obtaining licensure. She took the examination in November of 1988 and received her license in December, 1988. Ms. Seely was a ten percent owner of Geisha Massage. The evidence established that patrons of Geisha Massage were masturbated for a fee upon request after their initial visit. On or about September 30, 1988, a customer of Geisha Massage, Kenneth Barnes, was masturbated and massaged by an employee of Geisha Massage. On September 30, 1988, Officer Olsen, and Detective Daniel Henry of the West Palm Beach Police Department entered Geisha Massage with a search warrant and arrested Respondent, Victoria Ann Seely and two other female employees of the establishment. On or about December 8, 1988, the Respondent pled guilty to a felony charge of operating a house of ill-fame. Adjudication of guilt was withheld and he was placed on two years probation. He has successfully completed probation. Respondent's plea of guilty was a "Alford" plea whereby he did not specifically admit the allegations against him but agreed to plead guilty because it was in his best interest to do so. Respondent testified that he agreed to plead guilty because he did not want to subject his wife and children to the publicity of a trial and further court proceedings.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Massage enter a Final Order finding the Respondent, Albert Abrev guilty of Counts I, II and IV of the Amended Administrative Complaint and that the Board of Massage revoke the Respondent's license. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28 day of September, 1990. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28 day of September, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 2. Rejected as irrelevant and not established by competent substantial evidence. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 8. 12.-14. Rejected as irrelevant. No evidence was introduced to establish that Respondent hired the employee in question or delegated any responsibilities to her. Adopted in substance in Findings of Fact 11. Rejected as irrelevant. 17.-18. Rejected as irrelevant. No competent substantial evidence was introduced to establish that Respondent any dealings with this particular customer. The customer was unable to positively identify Respondent. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 10. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as constituting legal argument rather than a finding of fact. The evidence did establish that Respondent entered a plea of guilty. See, Findings of Fact 13. As set forth in Paragraph 5 of the Conclusions of Law, the sealing of Respondent's criminal record is not retroactive and competent substantial evidence was introduced regarding the guilty plea. Rejected as subordinate to Findings of Fact 5 through 8. Addressed in Conclusions of Law 8. Addressed in Conclusions of Law 10. COPIES FURNISHED: Michael A. Mone, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Robert P. Foley, Esquire Foley & Colton, P.A. 406 North Dixie Highway West Palm Beach, Florida 33401-4298 Mildred Gardner Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, 339 Health Studio, Inc., was licensed as a massage establishment, having been issued license number MM0005810, and conducted business at 339 Northeast 167th Street, North Miami Beach, Florida. On December 19, 1995, Denise Quintela, an inspector employed by the Department of Business and Professional Regulations, visited the licensed premises to conduct an inspection. Ms. Quintela identified herself to the "front desk clerk," who allowed her admission ("opened the door") to the premises. (Transcript, page 10). Apparently, in the "office where the front desk clerk was sitting down," there was a sign posted which listed the services, and their prices, offered by the establishment, including a massage for $80.00. (Transcript, page 17). Following admission, Ms. Quintela "started opening the curtains to make sure there was people working," and, upon opening one of the curtains, she observed "a lady working there with a gentleman," "the lady was standing, and the gentleman was lying down, and she was performing a massage." (Transcript, pages 10 and 11). Observing such activity, Ms. Quintela asked the lady for her massage license, but received no response. Thereupon, the "front desk clerk" volunteered that "she doesn't have a license."1 (Transcript, page 11). By examination of the lady's driver's license, Ms. Quintela identified her as You Won Park. According to the Department's records, You Won Park was not then, nor had she ever been, licensed as a massage therapist in the State of Florida. (Petitioner's Exhibit 1). Apart from any inferences that could be drawn from the foregoing findings, the only proof offered regarding You Won Park's relationship with the Respondent was the following testimony of Ms. Quintela: DIRECT EXAMINATION * * * Q. And did you determine whether Ms. Park was employed at the 330 Health Studio? A. Yes. * * * CROSS-EXAMINATION * * * Q. Were there any documents showing that that lady was employed there that you saw? A. No. Q. Was the sole basis for your determining that she was employed there your seeing her there? A. She was working there, yes. Q. Do you know if she was paid a salary? A. At the moment, I didn't see any money exchanged, no. Q. Not just at the moment, I mean in the whole world: Have you any indication that she received payment -- either cash, checks -- A. No. Q. Anything of that nature? A. No. * * * Q. . . . So is the answer you don't know if she was employed there or not? A. Well, she was employed because she was working there. Q. Well -- A. And the lady -- the front desk clerk told me that she was an employee there. And I believe I put down how long she worked there. Did I? Q. You noted in the report three weeks. But you don't know that she was an employee, do you? A. (No response.) Q. I mean, you don't have any evidence that she was an employee or that she was being paid other than the fact that she was there; is that true? A. Right. * * * Q. You do not know, do you, whether any money was exchanged between the supposed patron or the person allegedly getting the massage and the lady supposedly giving the massage? A. No. * * * REDIRECT EXAMINATION * * * Q. Was there any discussion with regard to a fee? A. No. Q. In your investigative report, there's a reference to the amount of time that Ms. Park was working there. How did you make a determination how long Ms. Park was working at the establishment? A. I asked the person in charge -- the front desk clerk. . . . (Transcript, pages 13 through 16, and 18). Apart from the statements attributed to the "front desk clerk," the results of Ms. Quintela's inspection, as evidenced by her testimony, are ambiguous, and are not sufficiently detailed to provide a reliable foundation on which to base a conclusion, with any degree of confidence, as to what relationship, if any, existed between the Respondent and You Won Park. Notably, based solely on Ms. Quintela's observations, You Won Park's presence and activities were equally consistent with what one would expect of an employee practicing massage or a non-employee who Respondent was permitting to practice massage on the licensed premises.2 You Won Park's activities were also consistent with those of a volunteer, as where one would accord an acquaintance a rub down. As for the comments Ms. Quintela attributes to the "front desk clerk" regarding You Won Park's status on the premises, they too are ambiguous and lacking in adequate detail. In this regard, it is observed that the statements of the "front desk clerk" may have simply meant that You Won Park had "worked" on the premises for three weeks, which is not necessarily the same as being engaged as an "employee." Apart from the ambiguity of the statements attributed to the "front desk clerk," they are also hearsay, and not subject to a hearsay exception.3 Consequently, the clerk's comments cannot support the conclusion that You Won Park was Respondent's employee. In sum, it must be concluded that, due to the paucity of proof, Petitioner has failed to demonstrate that You Won Park was Respondent's employee.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be rendered which dismisses the Administrative Complaint. DONE AND ENTERED this 12th day of June, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1998.
