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 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 in this case are whether Respondent committed the allegations contained in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Parties The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses. On August 1, 2007, the Department issued Respondent license number MA 50975, which authorized her to practice massage therapy in the state of Florida. Respondent's address of record is 3558 Silver Lace Lane, Boynton Beach, Florida 33436. Respondent's Training and Application for Licensure Respondent was born in China and, at all times relevant to this proceeding, was a citizen of China. In or around September 2005, Respondent immigrated to the United States and became a citizen of the state of Massachusetts. Some six months later, Respondent relocated to Florida, where she resided until December 2006; at that point, Respondent moved to California to attend Royal Irvin College ("Royal Irvin"), an institution that offered massage therapy instruction. On March 14, 2007, upon Respondent's successful completion of a course of study comprising 500 hours, Royal Irvin awarded her a degree. Subsequently, on July 12, 2007, Respondent passed the National Certification Examination for Therapeutic Massage and Bodywork. At or around that time, Respondent relocated to Pompano Beach area to seek employment as a massage therapist. Owing to the fact that Royal Irvin was not a Board- approved massage school, Respondent needed to complete a course of study at an approved institution or, alternatively, an apprenticeship program. At the suggestion of an acquaintance, Respondent decided to contact the Florida College of Natural Health ("FCNH"), a Board-approved massage school located in Pompano Beach. An initial inquiry of FCNH was made by Respondent's ex-husband, who, at Respondent's request, telephoned the institution and spoke with one of its employees. Thereafter, on or about July 27, 2007, Respondent and her ex-husband traveled to FCNH's campus and met with the institution's registrar, Glenda Johnson. Respondent's ensuing dealings with Ms. Johnson and her application for licensure are discussed shortly; first, though, a description of FCNH——and its responsibilities under Florida law——is in order. FCNH, an incorporated nonpublic postsecondary educational entity, holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes (2012).2/ In addition to being duly licensed by the state, FCNH is accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy. Finally, FCNH is a "Board- approved massage school" within the meaning of that term as defined in section 480.033, Florida Statutes. At the times relevant to this proceeding, the minimum requirements for becoming and remaining a Board-approved massage school were set forth in Florida Administrative Code Rule 64B7- (Aug. 16, 1998), which provided in relevant part as follows: In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must: Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 246, F.S. [now Ch. 1005, Fla. Stat.], or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . . Apply directly to the Board of Massage Therapy and provide the following information: Sample transcript and diploma; Copy of curriculum, catalog or other course descriptions; Faculty credentials; and Proof of licensure by the Department of Education. (emphasis added). As an institution holding a license by means of accreditation, FCNH must comply with the fair consumer practices prescribed in section 1005.04 and in the rules of the CIE.3/ Regarding these required practices, section 1005.04, Florida Statutes (2007), provided during the relevant time frame as follows: Every institution that is under the jurisdiction of the commission or is exempt from the jurisdiction or purview of the commission pursuant to s. 1005.06(1)(c) or (f) and that either directly or indirectly solicits for enrollment any student shall: Disclose to each prospective student a statement of the purpose of such institution, its educational programs and curricula, a description of its physical facilities, its status regarding licensure, its fee schedule and policies regarding retaining student fees if a student withdraws, and a statement regarding the transferability of credits to and from other institutions. The institution shall make the required disclosures in writing at least 1 week prior to enrollment or collection of any tuition from the prospective student. The required disclosures may be made in the institution's current catalog; Use a reliable method to assess, before accepting a student into a program, the student's ability to complete successfully the course of study for which he or she has applied; Inform each student accurately about financial assistance and obligations for repayment of loans; describe any employment placement services provided and the limitations thereof; and refrain from promising or implying guaranteed placement, market availability, or salary amounts; Provide to prospective and enrolled students accurate information regarding the relationship of its programs to state licensure requirements for practicing related occupations and professions in Florida; * * * In addition, institutions that are required to be licensed by the commission shall disclose to prospective students that additional information regarding the institution may be obtained by contacting the Commission for Independent Education, Department of Education, Tallahassee. (emphasis added). At the time of the events giving rise to this proceeding, the CIE's rule relating to fair consumer practices provided in relevant part as follows: This rule implements the provisions of Sections 1005.04 and 1005.34, F.S., and establishes the regulations and standards of the Commission relative to fair consumer practices and the operation of independent postsecondary education institutions in Florida. This rule applies to those institutions as specified in Section 1005.04(1), F.S. All such institutions and locations shall demonstrate compliance with fair consumer practices. (6) Each prospective student shall be provided a written copy, or shall have access to an electronic copy, of the institution's catalog prior to enrollment or the collection of any tuition, fees or other charges. The catalog shall contain the following required disclosures, and catalogs of licensed institutions must also contain the information required in subsections 6E- 2.004(11) and (12), F.A.C.: * * * (f) Transferability of credits: The institution shall disclose information to the student regarding transferability of credits to other institutions and from other institutions. The institution shall disclose that transferability of credit is at the discretion of the accepting institution, and that it is the student's responsibility to confirm whether or not credits will be accepted by another institution of the student's choice. . . . No representation shall be made by a licensed institution that its credits can be transferred to another specific institution, unless the institution has a current, valid articulation agreement on file. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: Units or credits earned at and transferred from other postsecondary institutions, when congruent and applicable to the receiving institution's program and when validated and confirmed by the receiving institution. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving institution. * * * (11) An institution is responsible for ensuring compliance with this rule by any person or company contracted with or employed by the institution to act on its behalf in matters of advertising, recruiting, or otherwise making representations which may be accessed by prospective students, whether verbally, electronically, or by other means of communication. Fla. Admin. Code R. 6E-1.0032 (July 23, 2007)(emphasis added). As a duly-licensed, accredited, Board-approved massage school, FCNH was, at all relevant times, authorized to evaluate the transferability of credits to FCNH from other massage schools, so that credits earned elsewhere (including from schools that were not Board-approved) could be applied toward the award of a diploma from FCNH. In making such an evaluation, FCNH was obligated to follow the standards for transfer of credit that the Board had established by rule.4/ Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, sign, and attach to the student's transcript the Board's Transfer of Credit Form, by which the school's dean or registrar certified that the student's previously-earned credits, to the extent specified, were acceptable in lieu of the student's taking courses at FCNH. Returning to the events at hand, Respondent met with FCNH's registrar, Ms. Johnson, on July 27, 2007. Notably, Ms. Johnson possessed actual authority, on that date and at all relevant times, to generate official transcripts and diplomas on behalf of FCNH.5/ The meeting, which took place on a weekday during normal business hours, was held in Ms. Johnson's office——located on the first floor of a multi-story building on FCNH's Pompano Beach campus. Upon Respondent's arrival at the main entrance, a receptionist summoned Ms. Johnson, who, a short time later, appeared in the lobby and escorted Respondent (and Respondent's ex-husband) to her office. During the meeting that ensued, Respondent reiterated, with her limited English skills, her desire to obtain licensure in Florida as a massage therapist. To that end, Respondent presented Ms. Johnson with various documents, which included her diploma and transcript from Royal Irvin, as well as proof of her national certification. At one point during the meeting, and in response to a question from Respondent's ex-husband, Ms. Johnson informed Respondent——erroneously——that her existing coursework was sufficient for licensure and that Respondent could simply transfer her previously-earned credits to FCNH. (Among other things, Ms. Johnson should have advised Respondent that Board- approved coursework in "HIV/AIDS," which Respondent did not complete until after6/ the Complaint was filed in this matter, was required for licensure.) All Respondent needed to do, Ms. Johnson incorrectly explained, was read an FCNH-prepared booklet concerning the prevention of medical errors. Consistent with Ms. Johnson's instructions, Respondent took the booklet7/ home and reviewed its contents. As the meeting progressed, Ms. Johnson collected $468.00 in fees from Respondent and helped her complete a three- page form titled, "State of Florida Application for Massage Therapist Licensure." In the application, Respondent truthfully disclosed, among other things, that she had completed 500 hours of study at Royal Irvin; that Royal Irvin was not approved by the Board; and that she had not attended an apprenticeship program. (Although the evidence establishes that Respondent failed to review the rules and statutes pertaining to massage therapy prior to signing the application——the plain language of which requires applicants to certify that the rules and statutes have been read——the Department failed to charge this conduct in the Complaint.) Thereafter, and on Respondent's behalf, Ms. Johnson submitted to the Department Respondent's application for licensure. The application was accompanied by a number of supporting documents, including two "Certificates of Completion," both of which bore Ms. Johnson's signature and FCNH's official seal. The first such certificate reflected that Respondent had satisfied a two-hour course relating to the prevention of medical errors, while the second indicated the completion of a "Therapeutic Massage Training Program (Transfer of Licensure)." The application package prepared and submitted by Ms. Johnson also contained: a "Transfer of Credit Form" signed by Ms. Johnson, which indicated that FCNH accepted Respondent's credits from Royal Irvin, and, further, that Respondent's coursework at Royal Irvin included a three-credit course concerning "HIV/AIDS"; an FCNH transcript that bore Ms. Johnson's signature and indicated that Respondent had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)"; Respondent's diploma and transcript from Royal Irvin; and proof of Respondent's national certification as a massage therapist. Collectively, the credit transfer form, the FCNH certificates, and the FCNH transcript "signify satisfactory completion of the requirements of an educational or career program of study or training or course of study" and constitute a "diploma" within the meaning of that term as defined in section 1005.02(8), Florida Statutes. (These documents, which Respondent's FCNH diploma comprises, will be referred to hereafter, collectively, as the "Diploma.") Subsequently, on August 1, 2007, the Department issued Respondent her license to practice massage therapy. With the exception of the instant proceeding, there is no evidence that Respondent's license has been the subject of prior disciplinary action. Subsequent Events In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination (which the NCB administers) from FCNH graduates whose transcripts seemed irregular. What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin, and that the same member of FCNH's administration——i.e., Ms. Johnson——had accepted their transfer credits. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected some anomalies in them. Unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students, Ms. Wade confronted Ms. Johnson with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them, but she denied——falsely, at least with respect to her dealings with Respondent——ever having taken money for doing so. (Ms. Johnson provided the rather dubious explanation that she had been merely trying to "help" people.) Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Thereafter, Ms. Wade notified the Department that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH cooperated. The investigation uncovered approximately 240 graduates, including Respondent, whose credentials FCNH could not confirm. Respondent has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. Although Ms. Wade credibly testified at hearing that Ms. Johnson should not have awarded Respondent an FCNH Diploma based on Respondent's Royal Irvin credits, there is no evidence that FCNH has initiated a legal proceeding to revoke or withdraw Respondent's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Respondent is without rights and privileges thereunder. Further, and just as important, it has not been shown that Respondent provided Ms. Johnson (or any other FCNH employee) with false information, nor does the evidence support a finding that Respondent knew or should have known that Ms. Johnson's issuance of the Diploma was anything but routine and in accordance with FCNH's academic policies. Under the circumstances, it was entirely reasonable for Respondent to rely upon Ms. Johnson's representations, as Respondent was entitled under the law to receive accurate information from FCNH concerning, among other things, the transferability of credits to FCNH, as well as the relationship between FCNH's academic program and the state's licensure requirements for massage therapists.
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 not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 18th day of July, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 18th day of July, 2013.
The Issue The issues in this case are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of section 480.0485, Florida Statutes; engaged in improper sexual activity, in violation of Florida Administrative Code Rule 64B7-26.010; or failed to appropriately drape a client, in violation of section 480.046(1)(i); and, if so, what is the appropriate sanction.
Findings Of Fact The Department, Board of Massage Therapy, is the state agency charged with regulating the practice of massage therapy within the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. Mr. Pruneda is a licensed massage therapist within the state of Florida, having been issued license number MA 63779. Mr. Pruneda's current address and address of record is 18 Walcott Drive, Boynton Beach, Florida 33426. On or about November 13, 2016, Mr. Pruneda was employed at Shanti Ohm Spa at 321 Northeast Second Avenue, Delray Beach, Florida 33444. On or about November 13, 2016, Patient L.G., a 29-year- old female, received a massage from Mr. Pruneda. Patient L.G. had received massages about 20 times before, and had received a massage from Mr. Pruneda on one prior occasion. The spa was normally closed on Sundays, but Patient L.G. called and requested massage appointments for massages for herself and her fiancé for Sunday, November 13, 2016. Mr. Pruneda testified that when an appointment for a massage is made, the receptionist gives the names of the massage therapists and the patient chooses among them. However, Patient L.G. testified that she did not request Mr. Pruneda. In any event, the spa made special arrangements for Mr. Pruneda and another massage therapist to come in to the spa on that Sunday. On November 13, 2016, Patient L.G. said that after filling out some paperwork, Mr. Pruneda came into the reception area and that was when she first learned he would be her massage therapist. Before the massage began, Patient L.G. disrobed and lay face-down on the massage table and covered herself with a large draping. Patient L.G. was wearing her underwear but no bra. Patient L.G. testified that at the beginning of the massage, Mr. Pruneda spent an excessive amount of time massaging the backs of her legs and that the strokes were coming very close to her buttocks, making her feel uncomfortable. After he moved on to her lower back, the massage went quickly, and she said that she remembered wishing he would spend more time on her back. After her back, he massaged her arms. Then Mr. Pruneda asked Patient L.G. to turn over onto her back, and Patient L.G. complied. Patient L.G. credibly testified that when she turned over, Mr. Pruneda did not avert his eyes and that he then failed to properly drape her, so she had to cover her breasts with the blanket herself. She did not give consent for him to leave her undraped. Patient L.G. testified that Mr. Pruneda again spent an excessive amount of time massaging the tops of her legs and that she felt his hand going under the strap of her underwear. She testified that he then moved her underwear aside and touched her genital area. She testified that she told him "no, no, no, no." She said that her eyes were closed and that she was in shock and fear. Patient L.G. testified that he had his hand on her shoulder and said to her, "If you say no it is no, if you say yes it is yes." She said that he did not try to improperly touch her again. She said that she felt uncomfortable and she adjusted the blanket. She testified that Mr. Pruneda continued the massage on her arms, up to the top, and then massaged her shoulders. Patient L.G. did not give informed consent for Mr. Pruneda to remove the draping from her breasts. Patient L.G. did not give informed consent for Mr. Pruneda to adjust or remove her underwear. Mr. Pruneda agreed that he had performed a massage on Patient L.G. on one prior occasion, but his testimony was otherwise contrary to that of Patient L.G.'s in every relevant aspect. He denied that he exposed Patient L.G's breasts, failed to appropriately drape her breasts, pulled aside her underwear, or touched her genital area. He testified that he simply performed a deep tissue massage with the appropriate level of care and professionalism. Mr. J.N., Patient L.G.'s fiancé, testified that although he and Patient L.G. each had an appointment for a 60-minute massage, his massage was completed first, and he had to wait for 10 to 15 minutes for his fiancé to complete hers. He said that when she came out, he noticed discomfort on her face and asked her if everything was okay. She replied that it was. On the way home, he asked her two more times if everything was okay, receiving the same response. He testified that when they had almost arrived at the house, she finally told him that she had been the victim of sexual misconduct. Patient L.G. confirmed this account, explaining that she said nothing to her fiancé in response to his questioning until they were close to the house to avoid an incident at the spa. Patient L.G. testified that after she returned to the house, she called the spa to report what had happened and, a couple of days later, also contacted the police. Mr. Pruneda introduced Exhibit R-3, a "Square Sales List" from Shanti Ohm Spa, which contained entries dated November 13, 2016, showing a tip of $20 from Patient L.G. to "Jorge," and a tip of $20 from J.N. to his therapist. The list also shows a single line drawn through the tip of $20 from Patient L.G. There was speculation at hearing that this was because the tip was later returned to Patient L.G., but no evidence from spa personnel was offered to explain the entries on the list. Mr. Pruneda argues that Patient L.G. would not have left a tip had she actually been sexually assaulted. Patient L.G. admitted at hearing that she did leave a $20 tip for Mr. Pruneda. She stated that she believed if she failed to do so, her fiancé would realize something was wrong and that she wished to avoid an incident while at the spa. Mr. Pruneda introduced into evidence a copy of a November 14, 2016, posting from a social media internet site belonging to a business specializing in cosmetic makeovers. The document showed Patient L.G. after a cosmetic makeover and contained her comment stating, "Thank you so much . . . I had so much fun today and feel amazing!! Off to rock this photo shoot thanks to you ladies!!" While Mr. Pruneda argues that this social media posting showed that Patient L.G.'s attitude on November 14, 2016, was completely inconsistent with that of a person who had actually suffered a sexual assault on the previous day, this argument is not accepted. Patient L.G. admitted the posting, but explained that the appointment had been made some time before, could not be rescheduled, and that she was obliged to go on with the session in order to meet deadlines for her upcoming wedding. Both the original and the Amended Administrative Complaint also charged that Mr. Pruneda touched Patient L.G.'s breasts without her consent. Further, Ms. Mason, expert witness of Petitioner, testified by deposition, based in part upon her review of the administrative report that had been prepared, that she was of the opinion that Mr. Pruneda's improper touching of Patient L.G.'s breasts constituted sexual misconduct. Yet at hearing, no evidence of Mr. Pruneda improperly touching or trying to massage Patient L.G.'s breasts was presented.1/ At that time, Patient L.G., the only person who could have made such an accusation, testified: Q: Did Mr. Pruneda ever try to massage anywhere on your chest? A: He was massaging my shoulder area. But no. Patient L.G. testified that after the incident, she was very upset for a very long time. Mr. J.N. testified that Patient L.G. felt nervous and had breakdowns. He testified that their relationship had changed a little bit, but that they were working to make it better and improve it going forward. Patient L.G.'s testimony as to the events that took place at the Shanti Ohm Spa on November 13, 2016, was precise, clear, and convincing. Ms. Mason credibly testified that she was familiar with the standards of practice of massage therapists in Florida and that the failure to properly drape a patient without express permission falls below those standards. Mr. Pruneda was fired from Shanti Ohm Spa.2/ He was restricted from the practice of massage therapy on female patients and, at the time of hearing, was no longer working as a massage therapist. Ms. Escalas testified that she has been married to Mr. Pruneda for 20 years and had been with him several years before they were married. She testified that the charges against him have damaged their lives and that it has been shameful to have to admit that he was being investigated. She testified that he was now working in a cleaning company, and eventually, would be working at a shower door company, but was making less money than he made as a massage therapist. Ms. Lima testified that although Mr. Pruneda is not her biological father, he has been just like her father for 20 years. She said that he has always demonstrated high values as a person and that he has never acted badly in all of that time. She testified that the accusations have greatly damaged the family. Mr. Pruneda has been licensed as a massage therapist for 30 years. Mr. Pruneda has never had any prior discipline imposed in connection with his massage therapy license. The case management system of the Clerk and Comptroller of Palm Beach County, Florida, contains no record of felony, criminal traffic, or misdemeanor charges involving Mr. Pruneda.
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 Jorge L. Pruneda in violation of sections 480.0485 and 480.046(1)(i) and rule 64B7-26.010; imposing a fine of $3,500; revoking his license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 1st day of November, 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 1st day of November, 2017.
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The Respondent, Dana Carlos, is a licensed massage therapist in the State of Florida, having been issued license number MA 0002811. The Respondent has been so licensed at all times material to this proceeding. On December 10, 1986, the Respondent was the co-owner of a massage establishment known as Massage by Dana and Jan, which at that time was located at 721 U.S. Highway 1, Suite 222, North Palm Beach, Florida 33408. That establishment was licensed by the State of Florida, having been issued license number MM 0000202. When Inspector Jean Robinson inspected that establishment on December 10, 1990, Gemma V. Koder was massaging a client without being supervised by either the Respondent or Jan Carlos. The client had come in early and Ms. Koder had called the Respondent by telephone to ask what she should do. The Respondent had told Gemma V. Koder to go ahead and start massaging the client and that she (the Respondent) would be there as soon as possible. The Respondent was approved as a sponsor for Gemma V. Koder, which sponsorship terminated on May 14, 1987. Gemma V. Koder was an apprentice for Dana Carlos. Gemma V. Koder had an apprentice license that allowed her to perform massages only when either the Respondent or Jan Carlos were physically present to supervise her. Either the Respondent or Jan Carlos could supervise Ms. Koder, because they were "co-sponsors." The Respondent later moved her massage establishment to 3700 Georgia Avenue, West Palm Beach, Florida. At that location she practiced massage under the name Massage by Dana and Jan. Dana Carlos leased the premises at that location. On April 13, 1988, the premises at 3700 Georgia Avenue were inspected by Inspector Jean Robinson. On that day Tammy Coxey was working as an unlicensed apprentice for the Respondent. The Respondent had applied for an apprentice license for Tammy Coxey, but the apprentice license was never approved by the Board of Massage. Therefore, the Respondent was never approved as a sponsor for Tammy Coxey and the Respondent knew that Tammy Coxey did not have an apprentice license or any other type of license. Nevertheless, admittedly motivated by profit potential, the Respondent disregarded the licensing requirements and put Tammy Coxey to work. On April 13, 1988, the room in which Tammy Coxey was performing massages as an employee of the Respondent was across the hall from the licensed massage establishment the Respondent was authorized to operate. The room in which Tammy Coxey was performing massages as an employee of the Respondent was never a licensed massage establishment. On the 6th and 7th of October, 1988, Sergeant Harvey Starr, of the West Palm Beach Police Department, called the establishment known as Massage by Dana and Jan and spoke to the Respondent on the telephone. He inquired about a "full body treatment" and was told that "all her girls gave full body treatments that included a release." In street jargon, a massage that includes "full body treatment including release," means a massage that includes masturbation to climax. On October 11, 1988, Sergeant Starr made an appointment for a massage and went to the premises of Massage by Dana and Jan, where he was met by the Respondent. Sergeant Starr told the Respondent that his name was "Richard," that he was the one who had called her on the telephone, and then asked what the charge was for a "full body treatment." The Respondent said it would be $25. Sergeant Starr than asked if that included a "release" and the Respondent told him that would cost $28. Sergeant Starr then specifically asked the Respondent if a "release" meant that he would be masturbated, and the Respondent answered that it did. Sergeant Starr then asked if the Respondent wanted to be paid. She, answered in the affirmative, Sergeant Starr handed her $30, and at that time he identified himself as a police officer and told her that she was under arrest. The Respondent was arrested on the charge of soliciting for the purpose of prostitution. Beginning in 1974 and for several years thereafter, in an effort to compete effectively, attract repeat business, and maintain market share in the Palm Beach County massage market, the Respondent engaged in the practiced of regularly masturbating massage clients.
Recommendation Upon consideration of all of the foregoing, it is recommended that the Board of Massage enter a Final Order in this case to the following effect: Dismissing all charges of violations set forth in Count II of the Amended Administrative Complaint; Dismissing the charges in Count III of the Amended Administrative Complaint that allege violations based on Section 480.47, Florida Statutes (the violations alleged at subparagraphs (a) and (c) of Paragraph 18 of the Amended Administrative Complaint); Finding the Respondent guilty of the violation charged in Count I of the Amended Administrative Complaint; Finding the Respondent guilty of the violations of Section 480.046(1)(e) and 480.046(1)(k), Florida Statutes, alleged in subparagraphs (b) and (d) of Paragraph 18 of Count III of the Amended Administrative Complaint; and Imposing a penalty , for the foregoing violations consisting of the revocation of the Respondent's license. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 4th day of June, 1990. MICHAEL M. PARRISH, 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 4th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 89-6091 Consistent with the requirements of Section 120.59(2), Florida Statutes, the following are my specific rulings on the proposed findings of fact contained in the Petitioner's Proposed Recommended Order. Paragraphs 1 through 5: Accepted in substance. Paragraph 6: Rejected as constituting a conclusion of law rather than a finding of fact. Paragraph 7: Rejected as irrelevant to charges in this case. Paragraphs 8 through 14: Accepted in substance. Paragraph 15: Rejected because only record basis is uncorroborated hearsay. Paragraphs 16 through 23: Accepted in substance. Paragraph 24: Rejected as subordinate and unnecessary, even though supported by record evidence. Paragraph 25: Accepted in substance. With regard to the post-hearing submissions of the Respondent, it is first noted that, even after a deadline extension of over a month, the Respondent's post-hearing submissions were filed late. Section 120.59(2), Florida Statutes, requires a ruling on each proposed finding only where proposed findings are submitted "in accordance with agency rules." Rule 22I-6.031(1), Florida Administrative Code, provides for the filing of proposed findings of fact and other proposed matters "within a time designated by the Hearing Officer." The Respondent's post-hearing materials were not submitted in accordance with the cited rule because they were filed beyond the extended deadline. Therefore, Section 120.59(2), Florida Statutes, does not require a specific ruling on each and every random sentence that might arguably constitute a proposed finding wherever found within the 47 pages of assorted post-hearing material submitted by the Respondent. Accordingly, while I have carefully read each of the 47 pages of post-hearing material submitted by the Respondent, I have not attempted the herculean task of gleaning through the Respondent's eclectic accumulation of papers and attempting to sort out the few statements that might arguably be construed as proposed findings of fact from the morass of arguments, statements of law, total irrelevancies, inappropriate documents (such as rejected exhibits), and other documents that serve no useful purpose. Suffice it to say that it is clear that the Respondent is of the view that the Petitioner has failed to prove its case, and it is clear from the findings of fact made in the Recommended Order that the Hearing Officer is, for the most part, of the view that the record in this case warrants an opposite finding. COPIES FURNISHED: Cynthia Gelmine, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Ms. Dana Carlos 4425 Rachael Way West Palm Beach, FL 33406 Mildred Gardner Kenneth D. Easley, Esquire Executive Director General Counsel, Department Board of Massage of Professional Regulation Northwood Centre 1940 North Monroe Street 1940 North Monroe Street Tallahassee, FL 32399-0792 Tallahassee, FL 32399-0792
