The Issue Whether Respondent Sabina Dahlberg's Massage Therapy violated Sections 480.46(1)(k) and 480.043(7), Florida Statutes (1993), whether Respondent Sabina Dahlberg violated Section 480.046(1)(k), Florida Statutes (1993), and if so, what penalties should be imposed.
Findings Of Fact Respondent Sabina Dahlberg (Dahlberg) holds a massage therapy license from the state of Florida, license number, MA0011128. Dahlberg owns Sabina Dahlberg’s Massage Therapy which holds a massage establishment license from the state of Florida, license number MM004301. In March, 1993, Dahlberg opened a vitamin store, Powerhouse Vitamins, at 732 S. Federal Highway, Dania, Florida. At that time Dahlberg was involved in professional body building and did not provide massage therapy services. Subsequent to the opening of the vitamin store, Dahlberg began to give massages in the rear of the building. There is a neon sign in the front window of the store which says "massages." Dahlberg filed an application with the Department of Business and Professional Regulation (Department) to obtain the necessary license for a massage therapy establishment. The license was issued to Sabina Dahlberg’s Massage Therapy located at the 732 South Federal Highway address. Between August 1993 and March 1994, Dahlberg employed licensed massage therapists Cynthia Williams and Dorothy Martin. Donna Booras, who was then under the apprenticeship of Dorothy Martin, also worked at Dahlberg’s establishment. In August, 1993, Ruth "Debbie" Cerminaro was also working at the establishment known as Powerhouse Vitamins. Ms. Cerminaro had a cosmetology license and was hired to perform facials, body wraps, and body waxing. Ms. Cerminaro did not have a license to give massages. Sometimes Dahlberg’s mother, Ursula Metzler, would help out at the store by answering the telephones and selling vitamins. At one time Ms. Metzler was considering becoming an apprentice in order to obtain a license to practice massage. Dahlberg testified that her mother never performed massages; however the pages from the store’s appointment book indicate that on March 3, 1994, Ursula had two appointments. In each massage room there is a sign which tells the customers, "Don’t even ask" for illegitimate acts. A customer could get a half-hour massage for $25 or a full hour massage for $45. The half-hour massage consisted of massaging the back and the back of the legs. The hour massage consisted of massaging the back, the front and back of the legs, the arms, the chest, and the colon. It was not unusual for customers to leave tips. In 1993 and 1994, Dahlberg had an arrangement with Dr. and Mrs. Spingarn to give the Spingarn’s massage therapy. Mrs. Spingarn had been involved in an accident and was receiving massage therapy as well as pool therapy from Dahlberg. For the most part, Mrs. Spingarn’s therapy was paid through workers’ compensation insurance. Dr. Spingarn was a dentist and at times Dahlberg would provide massage therapy to Dr. Spingarn in exchange for dental services. Dr. Spingarn would be given the massages at his office, the Powerhouse Vitamins’ location, or at his home. Because of the severity of her injuries, Mrs. Spingarn usually received her massage therapy at home, but she had also been given therapy at her husband’s office. When she received therapy at home, Dahlberg would massage her for about one and one-half hours and provide therapy in the swimming pool for about an hour. The home sessions would usually begin in the morning around ten or eleven o’clock and go into the afternoon. Around August 2, 1993, the Broward County Sheriff’s office received information alleging that Dahlberg and other employees at her business had engaged in sexual activity with customers at the business. Detectives Chris Percival (Percival) and Joseph Ventura (Ventura) of the Broward County Sheriff’s Office were assigned to conduct an undercover operation to determine if prostitution was occurring at Dahlberg’s place of business. On August 7, 1993, Ventura went to Powerhouse Vitamins and requested a massage. He was shown to a room in the back of the store, where he removed his clothes and placed a towel around his waist. A female named Debbie entered the massage room and told him to lay on his belly on the massage table. Debbie put lotion on her hands and began to massage Ventura’s back. Halfway through the massage, Ventura asked Debbie if she worked for tips and what could he get for a tip. Debbie wanted to know what he wanted, and he told her that he wanted to be taken care of. She told him to roll over on his back. Debbie wanted to know if Ventura was a cop and he assured her that he was not. Debbie began to rub lotion on his upper leg area. She removed the towel, poured lotion on his groin area, and began to masturbate Ventura. Ventura told her to stop that he was nervous. Debbie stopped and then resumed the back massage. A few minutes later the massage ended. Ventura paid her for the massage, including a tip, and left. On August 10, 1993, Detective Chris Percival (Percival) went to Powerhouse Vitamins for an appointment with Dahlberg for a massage at 4:30 p.m. During the massage, Percival told Dahlberg that he was impotent. About twenty to twenty-five minutes into the massage, Dahlberg applied lotion to her hands and began to masturbate Percival. Percival stopped her and told her that he thought that she had taken care of his problem. He paid her for the massage and included a tip. On August 10, 1993, Dahlberg gave a massage to Pat Spingarn at Mrs. Spingarn’s home. The message session started at ten o’clock and lasted for about one and one-half hours. They broke for lunch and then did pool therapy for an hour. The distance from Mrs. Spingarn’s home to Dahlberg’s establishment is approximately a 45 minute drive. There was sufficient time for Dahlberg to provide therapy to Mrs. Spingarn and return to her business establishment to give a massage to Percival beginning at 4:30 P.M. On the afternoon of March 2, 1994, Percival went to Powerhouse Vitamins for a massage with Sabina at 4:30. Sabina remembered him from his previous visit. Percival was shown to a room in the rear of the building where he disrobed. Sabina came in and began to give him a massage. About half way through the massage, Sabina told Percival to roll over face up. Sabina put a lubricant on her hands and massaged his penis. Once Percival achieved an erection, Sabina stopped. Percival paid her and left. Respondent’s Exhibit Three is a page from the business’s appointment book for March 2, 1994. There is a notation that Sabina was not working that afternoon; however, the notation was written over an erasure that appeared to be an appointment from 4:30 to 5:30 p.m.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent Sabina Dahlberg’s Massage Therapy is guilty of the violations set forth in Counts I and II of the Administrative Complaint in DOAH Case No. 94-01866 and revoking the massage establishment license of Sabina Dahlberg’s Massage Therapy and that a Final Order be entered finding that Sabina Dahlberg is guilty of the violation set forth in Count I of the Administrative Complaint in DOAH Case No. 96-1991, dismissing Count II of the Administrative Complaint in DOAH Case No. 96- 1991, and revoking the massage therapy license of Sabina Dahlberg. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of May, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1997. COPIES FURNISHED: Ruby Seymour Barr, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Jerome H. Shevin, Esquire 100 North Biscayne Boulevard, 30th Floor Miami, Florida 33132 Joe Baker, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether Respondent violated Sections 480.46(1)(h),(k), Florida Statutes, and Rule 64B7-30.001(1)(d) (formerly 61G11- 30.001(1)(d), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Health, Board of Massage Therapy (Department), is the state agency charged with regulating the practice of massage therapy pursuant to Chapter 480, Florida Statutes. Respondent, Morton Wexler (Wexler), is and has been at all times material to this proceeding a licensed massage therapist in the State of Florida, having been issued license number MA 0021664. In November, 1996, Wexler began working at Beauty Dynamics as a massage therapist. Wexler is 71 years old and has been blind since approximately 1990 due to glaucoma; however he can make out shapes and forms. On or about, January 10, 1997, C. C. went to Beauty Dynamics to receive a massage. Wexler was assigned to perform the massage on C. C. Wexler massaged the back of C. C.'s legs and arms and C. C.'s back. He asked C. C. to turn and lie on her back. A towel covered C. C.'s body from her shoulders to her feet. Wexler began to massage the back of her neck. C. C. told Wexler that she had a knot in her neck area and asked him to work on the knot. Instead of working on the knot, Wexler slipped his hands under the towel, down C. C.'s chest and touched her breasts. C. C. told him not to do that. Wexler again put his hands on and around C. C.'s breasts, pinched her nipples, and moaned. At that juncture, C. C. pulled the towel up and told him to get out of the room. Wexler did not leave at that time. He apologized and said that he did not know what came over him. He said, "I couldn't help myself. I stopped being a massage therapist and became a man." Wexler still did not leave the room, but started to massage C. C.'s feet. C. C. got face to face with him and told him to get out. Wexler went to his employer, Darlene Heckelmoser Sanders, and told her not to charge C. C. for the massage because there had been a misunderstanding. He did not fully explain the situation at that time. C. C. was not charged for the massage. After C. C. left Beauty Dynamics, Wexler told Ms. Sanders that he had touched C. C.'s breasts. He explained that the towel fell off, exposing C. C.'s breasts and that he could not help himself. He told her, "I guess I became a man instead of a massage therapist." Later in the day, C. C. called Ms. Sanders and told Ms. Sanders that Wexler had touched her breasts, squeezed her nipples and moaned. Ms. Sanders terminated Wexler's employment with Beauty Dynamics. At the final hearing, Wexler acknowledged that it was not appropriate for a massage therapist to touch the erectile tissue of a client, including the client's nipples.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Morton Wexler guilty of violating Sections 480.046(1)(h), (k), Florida Statutes, and Rule 64B7-30.001(1)(d), Florida Administrative Code, and suspending his massage therapist license for two years. DONE AND ENTERED this 8th day of May, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building COPIES FURNISHED: Joe Baker, Executive Director Board of Massage Therapy Department of Health 1940 North Monroe Street 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 8th day of May, 1998. Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Craig A. McCarthy, Esquire Agency for Health Care Administration Division of Medical Quality Assurance Post Office Box 14229 Tallahassee, Florida 32319-4229 Morton Wexler, pro se 171 South Hampton Drive Jupiter, Florida 33458
The Issue The issue to be decided is whether Respondent violated the provisions of chapters 456 and 480, Florida Statutes, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact The Department of Health is the state agency charged with the licensing and regulation of massage therapists pursuant to section 20.42 and chapters 456 and 480, Florida Statutes. At times material to the allegations in the Administrative Complaint, Respondent, Giuseppe Chiarizia, was licensed as a massage therapist in the State of Florida, having been licensed on August 26, 2008, and issued license number MA54313. At the time of the alleged incident in this case, his license was clear and active. Teri Ingram and M.C. are close friends who reside, with their respective spouses, in Illinois. In late September, early October of 2008, the two couples were vacationing in Panama City. On or about October 1, 2008, Ms. Ingram and T.C. went to the Salon Baliage and Spa for a massage. Upon arriving at the spa, the women were led to a room to fill out paper work, and offered some refreshments, which they declined. Each woman was then taken back for the services they were receiving. Ms. Ingram was called back first, and had a facial and a massage. M.C. was having similar services. After Ms. Ingram's massage was finished, she returned to the waiting room to wait for M.C. At some point, an employee at the spa came to her and told her that M.C. was in another room and wanted to see her immediately. As Ms. Ingram approached the room, M.C. came out. She was dressed, but was shaking and crying hysterically. Ms. Ingram described her as "all hunched over, more like hugging herself." M.C. wanted to call the women's husbands and leave the spa. Ms. Ingram notified the manager that something had happened but she was not sure what, and that they were leaving the spa. Ms. Ingram paid for her services; she did not know if M.C. did so as well. The two women went outside, and while waiting for their husbands, M.C. told Ms. Ingram that the massage therapist, Respondent, had touched her. Ms. Ingram asked her what she meant by that statement, and M.C. told Ms. Ingram that the massage therapist had rubbed his genitals across her hands and her shoulders during her massage, and that once he began the massage he slipped his finger inside her vagina. M.C. stated that she told him to leave the room and to leave her alone, and in response, he held her down and told her he was sorry. She asked him repeatedly to leave the room and he finally did so. Once their husbands arrived, the two couples drove to the Panama City Beach Police Station to report the incident. Deputy Andrew LoTurco was employed by the Bay County Sheriff's Office. He was dispatched to the Panama City Beach Police Department to respond to M.C.'s complaint of sexual battery. When he encountered M.C., she was very distraught and embarrassed. After hearing her complaint and speaking with M.C., her husband and a lady, presumably Ms. Ingram, Deputy LoTurco transported M.C. to the Bay Medical Center for examination, and turned over the investigation to Deputy Jason Larson. Deputy Larson met with M.C. and also observed that she was extremely upset and had been crying. During the interview, she was withdrawn. M.C. related to Deputy Larson an account of what happened that was essentially the same as what she had stated to Ms. Ingram. She identified the massage therapist as Respondent. At some point, Respondent was taken to the Sheriff's Office, and Deputy Larson interviewed him and advised him of his Miranda rights. Respondent declined to give a taped statement, but did speak with Officer Larson. Initially, he denied M.C.'s report, but as the interview continued, he stated that it was possible he may have accidentally penetrated M.C.'s vagina with the tip of his finger. He also stated that if he was in his country, M.C. would have given him a tip and thanked him. At the hospital, a rape kit was administered. M.C. continued to be very upset by the incident, and the two couples shortened their planned vacation to return home as a result. Respondent claims that M.C. was a difficult client to massage because she was heavy-set. By contrast, Ms. Ingram testified that she thought M.C. was approximately five feet, four inches tall, and weighed approximately 140 pounds. Respondent also testified that during the massage, M.C. brought her hands out too far, making it difficult for him to continue massaging her and also avoid intimate contact with her hands. Finally, he claimed, essentially, that M.C. was masturbating during the massage. Respondent's testimony is not credited. Massage therapy training often involves blindfold massage, and teaches that massage in the vicinity of the genital area is to be conducted very carefully. If a massage therapist properly draped a patient consistent with the requirements of Florida Administrative Code Rule 64B7-30.001, it would not be possible to inadvertently touch a client's genital area. The placement of a massage therapist's finger into the vagina of a massage client is outside the scope of the professional practice of massage therapy and is below the standard of care.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Board of Massage Therapy enter a final order finding Respondent guilty of violating sections 456.063(1); 456.072(1)(v); 480.046(1)(h) and(o); and 480.0485, Florida Statutes, and Florida Administrative Code Rule 64B7-26.010; finding Respondent not guilty of violating rule 64B7-30.001(5); and imposing a fine of $1,000 and revoking his license to practice massage therapy. DONE AND ENTERED this 1st day of September, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 September, 2011. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Manshi Shah, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Giuseppe Chiarizia P.S.C. 451, Box 490 FPO, AE 09834 (giuseppechiarizia@hotmail.com) Nicholas W. Romanello, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32299-1701 Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32299-1701
The Issue The issue to be determined is whether Respondent violated sections 456.072(1)(h), 456.072(1)(w), and 480.041(1)(b), Florida Statutes (2010), as alleged in the Amended Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43 and chapters 456 and 480, Florida Statutes (2013). At all times relevant to the Amended Administrative Complaint, Respondent has been a licensed massage therapist in the State of Florida, having been issued license number MA 63711. Respondent is a native of China, and immigrated to the United States in approximately 2007. She speaks limited English. Respondent wanted to become a massage therapist. To that end, Respondent attended the massage therapy training program offered at Healing Hands Institute for Massage Therapy (Healing Hands) and completed her training program on or about October 17, 2010. The program at Healing Hands consisted of a 600-hour curriculum. At all times relevant to the allegations in the Amended Administrative Complaint, Healing Hands was a school accredited by the Commission on Massage Therapy Accreditation (COMPTA) and approved by the New Jersey Board of Massage Therapy. It was not, however, a Florida board-approved school for purposes of obtaining licensure in Florida. After Respondent’s attendance at Healing Hands, the school closed in good standing with COMPTA. Healing Hands had campuses in Flushing, New York, as well as in New Jersey. Respondent completed most of her course work at the Flushing campus because there were people there who spoke Chinese, making it easier for her to understand the curriculum. While still a student at Healing Hands, Respondent took and passed the National Certification Examination for Therapeutic Massage and Bodywork. She received notification that she had passed the examination by letter dated June 8, 2010. It is unclear from the letter whether it is actually dated June 8, 2010, or is referring to an examination given that date. In any event, after receiving notice that she had passed the necessary examination, Respondent applied for and received a license to practice massage therapy in the State of New Jersey. Her original license was issued February 24, 2011, and her current license in New Jersey is valid through November 30, 2014. Respondent received assistance in filling out the paperwork related to her New Jersey application from a friend named “Mike” who is a lawyer. Mike did not charge her for his assistance. According to Respondent, Mike completed the application forms for her and she reviewed them and signed them. There are no allegations in the Amended Administrative Complaint to indicate that her educational program at Healing Hands was not legitimate; that she did not take and pass the National examination; or that any actions taken to obtain her New Jersey license were fraudulent. Respondent was not required to provide any additional coursework or certifications beyond her Healing Hands transcript and proof of passing her national certification exam in order to obtain her New Jersey license. Respondent wished to move to Florida because she had heard that there are good jobs in massage therapy here. She knew that she would have to obtain a Florida license in order to work in Florida. To that end, she sought assistance from a person at Healing Hands that she identified as “Sean.” Although she referred to Sean as one of her instructors who taught the majority of her courses, there is no instructor listed on her transcript whose first name is identified as Sean. Although there is no direct evidence other than Respondent’s testimony regarding Sean, it seems more likely that, rather than being an instructor, Sean was an interpreter for the students who spoke Chinese. Respondent asked Sean to assist her with the process for getting a Florida license because other students had told her he had assisted them in obtaining licenses from other states. She paid Sean $1,000.00 to cover the cost of applying for her Florida license. Some of the money was paid in cash, and some was in the form of a money order. Respondent could not remember how much of the total was in money order form. The application fee and initial license fee are significantly less than $1,000. Respondent received her license to practice massage therapy in Florida on June 5, 2011. However, what actually happened between the time she asked Sean for help and when she got her license is unclear at best. On or about March 17, 2011, Respondent’s State of Florida application for licensure as a massage therapist was submitted to the Florida Department of Health, Board of Massage Therapy. The application was submitted electronically, and does not include Respondent’s signature. Respondent testified that she never filled out the application and never saw it before it was submitted to the Department of Health. While it is clear that Respondent did not personally submit the application, it is not clear who did. There is no competent evidence to demonstrate who completed the application and submitted it to the Board office. Respondent’s application indicated that she did not attend an apprenticeship program. It also indicates that, at the time of the application, she has never held a license or certificate, regardless of status, to practice any licensed profession; that she has not completed a 10-hour Florida laws and rules course; that she has not completed a two-hour course in the prevention of medical errors; and that she has not completed a three-hour HIV/AIDS course. On or about May 9, 2011, a transcript from the Florida College of Natural Health (FCNH) was submitted to the Department of Health in support of Respondent’s application. Also submitted were a Transfer of Credit Form and FCNH Certificates of Completion for 12 hours of Therapeutic Massage Training Program and two hours of Prevention of Medical Errors. Also submitted that day were a transcript from Healing Hands and a copy of the Official Candidate Score Report for the National Certification Examination for Therapeutic Massage and Bodywork, indicating that Respondent had achieved a passing grade. FCNH is an incorporated, nonpublic, post-secondary educational entity which holds a license issued by the Florida Commission for Independent Education, which regulates nonpublic post-secondary institutions pursuant to section 1005.32, Florida Statutes. FCNH is also accredited by the Accrediting Commission of approved schools and Colleges and by the Commission on Massage Therapy. FCNH is a board-approved massage school as that term is defined in section 480.033. In order to be a board-approved massage school, a school is required to offer a course of study that includes, at a minimum, 500 class hours, and is also required to supply to the Board as part of its application a sample transcript and diploma; a copy of curriculum, catalog or other course descriptions; faculty credentials; and proof of licensure by the Department of Education. Fla. Admin. Code Rule 64B7-32.003. As a licensed, accredited, and board-approved massage school, FCNH was and continues to be authorized to evaluate the transferability of credits from another institution to FCNH, including schools that are not board-approved. Any transferred credits could then be applied by FCNH toward the award of a diploma from FCNH, provided that FCNH adhered to the standards in rule 64B7-32.004, and completed, signed, and attached to the school’s transcript, the Board’s Transfer of Credit form, certifying the extent to which a student’s previously-earned credits were acceptable for transfer to FCNH. While the minimum number of class hours for licensure is 500 hours, the program at FCNH consists of 768 hours. At all times relevant to the allegations in the Amended Administrative Complaint, Glenda Johnson was FCNH’s registrar. Ms. Johnson had been employed by FCNH since 1996, and had the apparent authority to evaluate the transferability of credits from other educational institutions to FCNH, and to execute a Transfer of Credit Form certifying to the Board that a student’s credits earned at another institution would be acceptable to FCNH. The Transfer of Credit form stated that FCNH had evaluated Respondent’s transcript from Healing Hands and that the evaluation was conducted on April 18, 2011. The form indicated that Respondent needed ten hours of Florida laws and rules and two hours of medical errors instruction in order to qualify for licensure. The form, which was signed by Glenda Johnson as Registrar of FCNH, accepted a total of 488 hours from Healing Hands, including three hours for HIV/AIDS education. The FCNH transcript, signed by Glenda Johnson as registrar of FCNH, indicated completion of 500 program hours, including three hours for HIV/AID education as of April 22, 2011. It indicates completion of coursework regarding prevention of medical errors or Florida laws and rules. Like the transcript and the Transfer of Credit form, the certificates of completion for Therapeutic Massage Training Program (Transfer of Licensure) and for Prevention of Medical Errors were signed by Glenda Johnson. Respondent’s transcript from Healing Hands was also submitted with the documents received by the Board office on May 9, 2011. The transcript indicates that Respondent completed a 600-hour program at Healing Hands, including three hours for HIV/AIDS awareness. It appears that the documents submitted on May 9, 2011, were most likely submitted to the Board office by Glenda Johnson, as many of them are signed by her and appear to be documents from FCNH, where she worked. As registrar of the school, Ms. Johnson had the apparent authority to evaluate Respondent’s hours at Healing Hands for transfer, and that evaluation can be performed electronically. In other words, a student did not have to visit a FCNH campus in order for his or her prior credits to be evaluated for transfer. Neither Ms. Johnson nor Sean testified at hearing. Respondent testified that she never met Ms. Johnson and never set foot on any of FCNH’s campuses. While it was assumed at hearing that Sean conspired with Ms. Johnson to create false documents in order for Respondent to obtain a Florida license, there was no competent evidence from which such a finding can be made. There is no evidence from which it can be determined whether Sean was complicit in fraud or being duped by Ms. Johnson. The only finding that can be made based on the evidence presented is that someone submitted, on Respondent’s behalf, documents that indicate that sufficient credits were transferred from Healing Hands to FCNH, a board-approved school; completion of all required courses; successful completion of the national examination; and that those documents on their face were sufficient to demonstrate Respondent met the requirements for licensure. Melissa Wade is a managerial employee of FCNH. At some point after Respondent received her license, Ms. Wade received a telephone call from someone from the National Certification Board for Therapeutic Massage and Bodywork (NCB) to report that NCB had received several applications to sit for the national certification examination from purported FCNH graduates whose transcripts seemed irregular. Respondent was not among those individuals identified as having suspicious credentials, as she had taken the examination prior to any purported contact with FCNH. Ms. Wade reviewed the credentials for those applicants identified by NCB, and found several things in the documents that she considered to be suspicious. While these irregularities may have been red flags for Ms. Wade and those who routinely review transcripts, it is not clear that these irregularities would be apparent to a casual observer. However, the students for whom the transcripts and Transfer Forms were prepared were not found in FCNH’s records as actually being students of the school. Ms. Wade confronted Ms. Johnson regarding the irregular transcripts and certificates. Ms. Johnson was terminated by FCNH in December 2011. Ms. Wade notified the Board of Massage that some people who had applied for licensure as graduates of FCNH might not have met the requirements for graduation. The Department initiated an investigation, with which FCNH cooperated. This investigation uncovered approximately 200 graduates, including Respondent, whose credentials FCNH could not confirm. Although Ms. Wade reviewed Respondent’s documents that comprise Respondent’s application for licensure and testified that Ms. Johnson did not have the authority to evaluate the hours from Healing Hands for transfer to FCNH, she did not testify that the courses which were purportedly accepted for transfer would in fact be unacceptable. Anthony Jusevitch, Executive Director for the Board of Massage Therapy, testified that typically it is the school, as opposed to the applicant, that submits transcripts and certificates regarding completion of curriculum requirements. There was no credible, competent evidence to indicate exactly who decided to create the documents submitted to the Board of Massage on Respondent’s behalf, or that Respondent knew of or authorized their creation. What is clear, however, is that Respondent did not know of their creation or their submission to the Board office. Once Respondent was notified of the alleged deficiency in her credentials for her Florida license, she took two home- study courses through Life Education of Florida on the subjects of Medical Errors and HIV/AIDS, for two and three hours, respectively. She also took a Florida Laws and Rules course for 10 hours through Advanced Massage Techniques’ online program. The use of continuing education courses is valid for obtaining initial licensure. Respondent currently meets all of the requirements for licensure in the State of Florida. She continues to live in New Jersey. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, at the time her licensure application was processed by the Board staff, Respondent did not meet the requirements for licensure because she had not taken the required prevention of medical errors and Florida Laws and Rules courses.
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 dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 9th day of September, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 9th day of September, 2013.
The Issue The issues in this case are whether Respondent, a massage therapist, obtained a license: (a) by means of fraudulent misrepresentations; (b) which she knew had been issued in error; and/or (c) without having completed a course of study at an approved school, as Petitioner alleges. If so, it will be necessary to determine an appropriate penalty.
Findings Of Fact The Department issued Hao license number MA 60237, which authorized her to practice massage therapy in the state of Florida. The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Hao. The Department provides investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done this instance, when cause exists to suspect that a licensee has committed a disciplinable offense. The Florida College of Natural Health ("FCNH") is an incorporated nonpublic postsecondary educational entity. FCNH 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. 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 480.033.2/ 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- (Apr. 25, 2010), which provided in pertinent 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 1005, F.S., 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. 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 (2009), 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; Ensure that all advertisements are accurate and not misleading; Publish and follow an equitable prorated refund policy for all students, and follow both the federal refund guidelines for students receiving federal financial assistance and the minimum refund guidelines set by commission rule; Follow the requirements of state and federal laws that require annual reporting with respect to crime statistics and physical plant safety and make those reports available to the public; and Publish and follow procedures for handling student complaints, disciplinary actions, and appeals. 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. If a licensed institution has entered into written articulation agreements with other institutions, a list of those other institutions may be provided to students, along with any conditions or limitations on the amount or kinds of credit that will be accepted. Such written agreements with other institutions must be valid and in effect at the time the information is disclosed to the student. The agreements shall be kept on file at all times and available for inspection by Commission representatives or students. Any change or termination of the agreements shall be disclosed promptly to all affected students. 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. At all relevant times, FCNH's registrar was Glenda Johnson. As registrar, Ms. Johnson had apparent authority, at a minimum, to evaluate the transferability of credits, and she possessed actual authority to generate and execute the Transfer of Credit Form certifying to the Board that an applicant's previously earned credits were acceptable to FCNH. 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 from FCNH graduates whose transcripts seemed irregular. (Hao's application was not among these; she had taken, and passed, a national licensing examination in February 2010.) What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin College in Monterey Park, California, and they had fewer credit hours on their transcripts than FCNH's typical students. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected purported anomalies in them. She was 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. Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Ms. Wade later notified the Board 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 fully cooperated. The investigation uncovered some 200 graduates whose credentials FCNH could not confirm. One of them was Hao. Hao was born in China and at some point immigrated to the United States. In 2007 Hao studied massage therapy at Acupuncture and Massage Institute of America ("AMIA") in Hacienda Heights, California. At AMIA, Hao successfully completed a 750-hour curriculum in massage therapy, graduating on December 18, 2007. Thereafter, Hao relocated to Florida intending to work as a massage therapist. Before she could begin working, however, Hao needed to obtain a Florida license. Because AMIA was not a Board-approved massage school, Hao needed to complete either a course of study at an approved school or, alternatively, an apprenticeship program. In June 2010, Hao went to the Pompano campus of FCNH, where she met with Ms. Johnson. Hao decided to enroll in FCNH, and Ms. Johnson prepared the necessary documents. Hao gave Ms. Johnson copies of her educational credentials from AMIA. In her capacity as registrar, Ms. Johnson completed a Transfer of Credit Form, and FCNH's internal Calculation Form for a Graduate From Another Massage Therapy School. Ms. Johnson took Hao's FCNH enrollment forms and collected $400.00 in cash as the fee for handling the transfer of Hao's credits and her registration as a student of FCNH. Having collected the money, Ms. Johnson furnished Respondent with several items, including an FCNH document titled "Certificate of Completion — 15 Hours of Therapeutic Massage Training Program (Transfer of Licensure)" that bore Ms. Johnson's signature and the school's seal; an FCNH document titled "Certificate of Completion — 2 Hours of Prevention of Medical Errors," which bore FCNH's seal, as well as Ms. Johnson's signature; the Transfer of Credit Form signed by Ms. Johnson, which indicates that FCNH accepted Hao's credits from AMIA; and an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing that Hao had completed a 500- hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)." 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. The several documents comprising Hao's FCNH diploma will be referred to hereafter, collectively, as the "Diploma." Ms. Johnson produced a Department of Health application for a massage therapy license and helped Hao fill it out. Hao then signed the three-page application, which is dated June 17, 2010. The application which Hao executed states, truthfully, that she obtained a massage therapy certificate in December of 2007 from AMIA and that the school is not Board approved. The application states, correctly, that Hao completed 750 hours of study at AMIA. The evidence does not establish that Hao knowingly made a false statement of material fact in the application or otherwise intended to perpetrate a fraud on the Department. Ms. Johnson forwarded Hao's application and supporting documents to the Department, and soon afterward the Department issued Hao a license to practice as a massage therapist. The evidence fails to support a finding that Hao misrepresented her educational attainments when she met with Ms. Johnson. The evidence, moreover, does not support a finding that Hao knew or should have known that Ms. Johnson's evaluation of her credits was anything but routine and in accordance with FCNH's academic policies. The evidence does not support a finding that Hao knew or should have known that FCNH, as the transferee school accepting her AMIA courses, would award her academic credit or credentials which she had not legitimately earned. Hao was not shown to have had any prior familiarity with FCNH forms and documents; its recordkeeping practices; or its internal policies regarding the registration and enrollment of students, the evaluation of transcripts for the purpose of transfer of credits, or the issuance of certificates and other educational credentials. Hao was not shown to have had any reason to suspect that the FCNH Enrollment Agreement she signed would not be properly entered into the school's records, or to believe that the FCNH transcript issued for her benefit purported to award her any credits other than those she rightfully had earned. To sum up Hao's transaction with FCNH, she went to the Board-approved, state-licensed massage school in June 2010, where she met with the registrar, Ms. Johnson, a member of the school's administration who she had no reason to believe would deceive her. It was reasonable under the circumstances for Hao to rely upon Ms. Johnson, and she was entitled under the law to receive accurate information from the registrar regarding, among other things, the transferability of credits to FCNH, and the relationship between FCNH's academic program and the state's licensure requirements for massage therapists. Further, Ms. Johnson, who at all times was acting within the course and scope of her employment as the school's registrar, had actual authority to prepare and certify educational credentials on behalf of FCNH. The evidence does not establish that Hao was or should have been aware of any limitations on Ms. Johnson's authority, nor does the evidence show that Hao gave Ms. Johnson false information. From Hao's perspective, Ms. Johnson had apparent authority, at least, to accept Hao's credits from AMIA and to prepare, execute, and issue such transcripts and certificates as would be appropriate to the situation. Hao has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. FCNH has not initiated a legal proceeding to revoke or withdraw Hao's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Hao is without rights and privileges thereunder.
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 Hao not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 20th day of August, 2013, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 20th day of August, 2013.
The Issue The ultimate issue for determination at formal hearing was whether Respondent committed the offenses set forth in Petitioner's Administrative Complaint, and if so, what disciplinary action should be taken against Respondent's massage license.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Chapters 455 and 480, Florida Statutes, and rules promulgated pursuant thereto. Respondent is a Florida licensed massage therapist and has been at all times material hereto, having been issued license number MA 0012000. Respondent had been licensed for one (1) year prior to the alleged incidents and has performed approximately 700 massages, with approximately 300 of them being performed on women. In August 1992, P. G. was suffering from tension in her neck, so she contacted Respondent for a massage. P. G. was acquainted with Respondent as a result of them attending the same church and participating for six weeks in "prosperity classes" which met once a week. Respondent agreed to give her a massage at her home. At no time prior to this had P. G. had a massage. In the afternoon, on a day in August 1992, Respondent came to P. G.'s home to give her the massage. He brought with him a table and a sheet. P. G.'s husband was at home when Respondent arrived and was in another room in the home during the first half of the massage. The massage lasted approximately one hour and 15 minutes. Before beginning the massage, Respondent did not obtain any medical or health history from P. G. Also, Respondent gave P. G. the option of being draped with her underwear on or nude. P. G. chose to keep her underwear on. Respondent massaged P. G.'s neck, arms, shoulders, back, legs, feet and breasts. Throughout the massage, P. G. and Respondent conversed continuously. At one point, Respondent told her that she had a great body and that if she ever wanted to get rid of her husband he was available. P. G. did not take Respondent's comments seriously and dismissed them. When Respondent was massaging P. G.'s arms and shoulders, she was lying in a prone position with her arms and hands outstretched forward and with him standing in front of her. Several times, during this part of the massage, when Respondent leaned forward, he brushed his penis against her hands. Prior to massaging P. G.'s breasts, Respondent did not discuss massaging her breasts with her. Also, throughout the massage of P. G.'s breasts, Respondent used his hands to manipulate her breasts and manipulated her nipples. At one point during the massage, Respondent touched P. G.'s vaginal area and began stroking her clitoris. P. G. described Respondent's action as a "stimulation" of her clitoris in a sexual manner "like your husband would do." When Respondent did this, P. G. immediately asked Respondent if this was part of the massage. He asked her if she wanted him to do this and she said no. Respondent ceased and did not do it again. After the massage was over, P. G. paid Respondent $20 or $30, she did not recall which. Additionally, she walked Respondent to his vehicle and requested that he leave some of his advertising material with her, which he did. P. G. reported the incident to Petitioner after her twin sister informed her that Respondent should not have touched her vaginal area and nipples. Approximately two months later, on or about October 1, 1992, S. K. came to Fort Lauderdale, Florida, from California for her father's funeral. After his funeral, she was very stressed and wanted to get a massage. For S. K., massages were therapy, relieving her of stress, and she had been receiving massages for approximately 10 years. Also, S. K. is a licensed massage therapist in the State of California. On or about October 3, 1992, a Sunday, S. K. called Respondent after selecting him from his advertisement in the yellow pages. Respondent agreed to perform a massage on her that same day in the afternoon at his home. After arriving at Respondent's home, he directed S. K. to a small room which contained a massage table. She undressed completely and was provided with a small rectangular sheet about the width of her body for draping. Prior to the massage, S. K. and Respondent discussed areas in particular that S. K. wanted massaged, i.e., shoulders, neck, and lower back. Further, she requested that Respondent use a special oil that she brought with her, and he agreed to do so; she felt "safe" with the smell of the oil. At no time did Respondent take any medical or health history from S. K. S. K.'s massage lasted for approximately one hour. Respondent talked continuously during the entire massage, relating his real estate dealings. Respondent began the massage by having S. K. lie on the massage table in a prone position. He placed the small sheet on her, leaving her buttocks uncovered. In the course of massaging the top of S. K.'s legs, Respondent brushed S. K.'s genital area, specifically her labia, very briskly at least six or eight times (three or four times on each leg). S. K. began to become suspicious of Respondent but did not object to Respondent's action. While S. K. was still in the face down position, Respondent massaged S. K.'s buttocks. During the massage of her buttocks, Respondent brushed his fingers over S. K.'s anus several times, causing her to believe that Respondent was doing this intentionally. However, S. K. did not object to Respondent's action, wanting to believe, instead, that what was happening really wasn't. Additionally, while in the prone position, Respondent massaged S. K.'s shoulders. She was lying with her arms and hands outstretched in the front of her and with Respondent standing in front of her. Several times, while manipulating S. K.'s shoulders, Respondent would brush his stomach and penis against her hands. Each time the brushing occurred, either with his stomach or his penis, S. K. would move her hands back, but the massage procedure would cause her hands to move forward again. S. K. objected to Respondent's action, and he stopped. When Respondent had S. K. to lie on her back, he did not cover her genital area with any kind of draping. She became angry, accused Respondent of not properly draping her, and proceeded to drape her genital area herself. While S. K. was still lying on her back, Respondent massaged her breasts with his hands. Respondent had not discussed massaging S. K.'s breasts before doing so. During the massage of S. K.'s breasts, Respondent manipulated her nipples with his hands. At the conclusion of the massage, S. K. paid Respondent $20 for the massage and gave him a $10 tip. Neither S. K. nor P. G. were acquainted with one another. Expert testimony was that draping is not universally taught in Florida's massage schools and that there is no universally accepted method of draping by massage therapists in Florida. When a massage therapist performs a massage on a client for the first time, the minimum standard of practice, according to expert testimony, requires the massage therapist to take the client's medical history. Obtaining the medical history guides the massage therapist in the client's massage, such as informing the therapist which areas of the body are appropriate for massage and which are not. A massaging of the breasts is not prohibited; however, according to expert testimony, the minimum standard of practice requires the massage therapist to (a) inform the client, prior to the massage, that the breasts will be massaged, (b) obtain the client's consent, and (c) use the client's hand to massage the breasts (massage through the client's hand). Additionally, the minimum standard of practice prohibits the manipulation of the nipples. Massaging of the genital area, according to expert testimony, is prohibited by the minimum standard of practice, unless the client's physician has ordered such a massage. No physician ordered a massage of the genital area for either P. G. or S. K. According to expert testimony, the anus is involved in a massage procedure referred to as colonic irrigation which is a gloved procedure and requires special equipment. The minimum standard of practice requires a massage therapist to obtain the client's consent for the procedure and requires the client to go through an advance procedure prior to the colonic irrigation massage. No colonic irrigation was performed on either P. G. or S. K.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Board of Massage enter a final order: Determining James J. Maes guilty of violating Subsection 480.046(1)(k), Florida Statutes, by violating Board of Massage Rule 21L-30.001(1)(d), Florida Administrative Code, as set forth in the Administrative Complaint; and Imposing an administrative penalty of five years suspension. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of April 1993 ERROL H. POWELL 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 16th day of April 1993. APPENDIX Rulings on findings proposed by the Petitioner. 1-6. Rejected as subordinate to Findings of Fact 23-27. Adopted in Finding of Fact 25, except for the reference to appropriate draping which is rejected. Expert testimony revealed that there was no universally accepted method of draping. See Finding of Fact 23. Adopted in Finding of Fact 27. Adopted in Finding of Fact 26. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 11. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Rejected as unnecessary. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12. Rejected as unnecessary. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Rejected, see Finding of Fact 23. Adopted in Finding of Fact 17, except the reference to the clitoris which is rejected. Taking the deposition testimony about S. K.'s clitoris and labia indicates that S. K. meant her labia, not her clitoris. Adopted in Finding of Fact 18. Adopted in Finding of Fact 20, except the reference of failing to properly drape which is rejected. See Finding of Fact 23. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Rulings on findings proposed by the Respondent. Client I Adopted in Findings of Fact 3 and 4, except the reference to the date which is rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented, except as to P. G. wearing panties throughout the massage which is adopted in Finding of Fact 5. Rejected as contrary to the evidence presented, except as to the last sentence which is adopted in Finding of Fact 10. Client II Adopted in Finding of Fact 13. Rejected as contrary to the evidence presented, except for the expert testimony on draping which is adopted and modified in Finding of Fact 23. Rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented, see Finding of Fact 17. Rejected as contrary to the evidence presented, see Finding of Fact 20. Rejected as contrary to the evidence presented, see Finding of Fact 18. Rejected as unnecessary and contrary to the evidence presented, except the reference to the tip which is adopted in Finding of Fact 21. COPIES FURNISHED: Susan E. Lindgard, Esquire Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 James J. Maes 1498 Northeast 34th Court Oakland Park, Florida 33334 Anna Polk, Executive Director Board of Massage Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
