The Issue Whether Respondent violated provisions of chapter 480, Florida Statutes, as alleged in the Administrative Complaint, and; if so, what penalty should be imposed?
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following factual findings are made: The Department 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 all times material to the allegations in this proceeding, Respondent was a licensed massage therapist in the State of Florida, having been issued license number MA 80938. During May 2016 Respondent worked at Massage Envy (“M.E.”) as a massage therapist. M.E. is a spa facility offering massage services. D.W. is a 46-year-old female with significant back issues. D.W. was in a boating accident as a child, and has had at least eight back surgeries in attempts to alleviate her back pain. Since 2012, D.W. has had numerous massages to help ease her back pain. She initially received massages through her chiropractor’s massage therapist. The chiropractor’s massage therapist was unable to continue, and D.W. started obtaining massages at M.E. D.W. obtained free massages from M.E. when she participated as a “mystery shopper”4/ for M.E. Following that experience, D.W. became a client of M.E. D.W. usually received full-body massages on a monthly basis,5/ except when she had the back surgeries. On May 27, 2016, D.W. contacted M.E. requesting a massage appointment. She was assigned Respondent as her regular masseuse was unavailable. D.W. arrived for the massage and met Respondent. The massage was scheduled for two hours. D.W. and Respondent discussed D.W.’s back pain. Respondent left the treatment room to allow D.W. time to completely disrobe and cover herself with the drape cloth or sheet. During the first half of the massage, D.W. was face down while Respondent stretched her out. She was comfortable with this part of the massage as she remained fully covered by the sheet. Approximately half way through the massage, Respondent briefly left the room, and D.W. turned over to be face up for the remainder of the massage. In the face-up position, Respondent began the next phase of the massage. While he was working on D.W.’s left leg, Respondent bumped her vagina. D.W. initially thought the touching was an accident; however, Respondent kept touching her clitoris. Respondent then put two to three fingers inside D.W.’s vagina. D.W. was “very scared,” and initially felt frozen in fear. After a few minutes Respondent asked if he needed to stop the massage. After a few seconds, D.W. was able to say, “It’s making me feel like I have to pee, please stop.” Respondent stopped. Respondent then asked if D.W. wanted to have her hands or feet massaged as there were a couple of minutes remaining in her appointment. D.W. did not want Respondent’s hands touching her hands; she indicated he could message her feet. Respondent finished the massage by working on D.W.’s feet. After the massage ended, D.W. dressed. D.W. went to the restroom, received a cup of water from Respondent and checked out at M.E.’s front desk. D.W. went to the parking lot, called the M.E. manager, and told the manager what happened. D.W. then went home. D.W. told her husband what had happened and the two of them returned to M.E. The Largo Police Department was called and a report was filed. While testifying about this very intimate type of contact, D.W.’s demeanor was distressed. She cried as if it were painful to recount. D.W. now is unable to use massage therapy to treat her back pain. Additionally, D.W. has trouble sleeping, and is unable to have sex because she considers what Respondent did to her was “foreplay.” Respondent denied that he engaged in any form of sexual activity with D.W. Respondent attempted to blame D.W.’s allegation as either a “counter-transference” or “transference” event. Respondent postulated that the counter-transference or transference is “where the client imposes a negative feeling or a negative association upon their therapist after something is awoken during massage.” Respondent agreed that D.W. had been getting massages for years, and that she would be accustomed to the massage experience. Respondent also agreed that there was nothing special about the massage he gave to D.W. Respondent’s testimony is not credited. Massage therapy training 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 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 (or fingers) 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. There is no therapeutic value to massaging or penetrating the vagina, and there is no circumstance by which a massage therapist should touch a client’s vagina.
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 guilty of violating section 480.0485 and rule 64B7-26.010; and imposing a fine of $2,500 and revoking his license to practice massage therapy. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 22nd day of February, 2017.
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 rule 64B7-30.001(5); and, if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Massage Therapy, is the state agency charged with regulating the practice of massage therapy within the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. Mr. Rodriguez is a licensed massage therapist within the state of Florida, having been issued license number MA 75735. He has been licensed since 2014. Mr. Rodriguez's current address and address of record is 812 Northeast 2nd Street, Apartment 1, Hallandale, Florida 33009. On or about January 9, 2017, Mr. Rodriguez was employed at Om'echaye Wellness & Fitness Center (Om'echaye) located at 1100 East Hallandale Beach Boulevard, Hallandale Beach, Florida 33009. On or about January 9, 2017, Patient R.A., a 24-year- old female, received a body scrub and a massage from Respondent. Patient R.A. had never received a massage at Om'echaye before, though she and her boyfriend lived close by and had eaten lunch at the Om'echaye restaurant a few times. It was on one of these earlier visits that she saw a special promotion for a body scrub and Swedish massage. She bought a gift card for the promotion for her boyfriend for his birthday. He was not enthusiastic about getting a massage there, however, so they decided that Patient R.A. would use the card herself. She reported what happened during the massage shortly after the incident. Her testimony at hearing was detailed and was consistent with previous accounts. These factors, along with her demeanor at hearing, made her testimony clear and convincing, and her testimony is credited. Patient R.A.'s appointment was at 6:15 p.m., and she arrived a few minutes early. The receptionist introduced her to Mr. Rodriguez. In the massage room, Patient R.A., having never received a body scrub before, asked Mr. Rodriguez whether she should leave her underwear on, as she had always done during massages she had received. He told her that no one did that, saying that otherwise it would be difficult to perform the body scrub. Patient R.A. asked if she should go under covers, but he directed her not to. He asked her to lie face up on the massage table and left the room so that she could undress. There were two 16" x 24" towels on the table, with which she covered herself notwithstanding his instruction, placing one over her lower body and one over her breasts. Mr. Rodriguez returned to the room and began to wet her skin with a hot towel. He asked her how she heard about Om'echaye. She told him about the gift card she had originally bought for her boyfriend's birthday, and that it was almost her birthday and that she was using the card. He learned that she was a foreign student from Germany studying psychology. He told her that his sister-in-law was a psychologist in Brazil. Patient R.A. asked him if he was from Brazil, and he told her no, that he was from Peru. He began the body scrub as they were talking. He applied a coconut and sugar body scrub solution, pushing her legs apart as he quickly worked up her legs, the back of his hands touching her vagina several times. As he bent her leg at the knee the towel slid onto her stomach, exposing her. He removed the towel completely, touched her vagina again, and then scrubbed the front part of her vagina with the body scrub. Mr. Rodriguez continued working up her body, removing the upper towel and, without asking her, began scrubbing her breasts. Afterwards, he removed the scrubbing solution from the front of her body with a hot towel. He then asked her to turn over. Mr. Rodriguez scrubbed the back body of Patient R.A. He scrubbed her buttocks and touched her anus with the side of his hands. After wiping off the body scrub solution, he told her that he would begin the Swedish massage. Mr. Rodriguez did not receive consent from Patient R.A. that she would remain undraped. He dripped hot oil onto Patient R.A. and rubbed it over her body, rubbing her buttocks, with his hands frequently against her anus, spilling oil down her buttocks. He then asked her to turn over. He massaged Patient R.A.'s front, including her breasts, and touched her vagina. He then began to rub his finger against her clitoris. Patient R.A. grabbed his wrist and told him not to touch her down there. He then returned his massage to her breast area and began to tickle her nipples. He moved his hands to her lower body several other times, touching her vagina. He came close to her clitoris, but did not touch her there again. Less clear and convincing was Patient R.A.'s testimony that Mr. Rodriguez pressed his penis against her elbow at some point during the massage. In cross examination, she stated: Q: Now, did you say in your direct testimony that there was an erect penis that touched you? A: At first was the--I believe so, but I'm not sure. That's what I said first. And even--then I mentioned I felt his genitals, but I don't think he was erect. I'm not sure. I felt it, but if he was erect-- Q: Okay. So something-- A: --I'm not sure-- Q: --something touched you, but you don't know whether it was his penis or his arm or-- A: His genitals. Patient R.A. stated at the hearing that she did not see Mr. Rodriguez touch her, but felt him touch her right arm. She did not remember how many times. Her testimony that Mr. Rodriguez pressed his penis against her was not clear and convincing. After the massage, Mr. Rodriguez asked Patient R.A., "How was it?" Patient R.A. responded that it was not a Swedish massage and that he needed to be careful about the way he performed massages. She asked him if he always did his massages like that. He responded saying, "That's how I do it with my clients. I don't know what other massage therapists do." She again said that he needed to be very careful with what he was doing. He apologized, saying, "Thank you for being cool." He gave her his business card. He offered to give her a deep tissue massage for free at his studio. He said that all of his clients come there because "it is too expensive here." Patient R.A. declined. The door to Om'echaye was locked because of the late hour that she was leaving, and Mr. Rodriguez had to open the door to let her out. At hearing, Patient R.A. said that she did not do more to prevent the assault because at first she refused to believe it was happening and later she was afraid. Patient R.A. was ashamed of herself when she got outside Om'echaye, thinking she should have stood up for herself more. At first, she was not going to tell anyone that she had been sexually assaulted, but ended up telling her boyfriend and going back to Om'echaye early the next morning and talking to the owner. She met with police later that day and gave them statements. She later notified the Department. Respondent denied Patient R.A.'s account in every material element. He testified that he never touched her vagina, anus, breasts, nipples, or clitoris, either intentionally or accidently. He testified that he acted within the scope of massage therapy practice and that no sexual misconduct occurred. He testified that she remained properly draped the entire time. He suggested that Patient R.A. made up the entire incident and that there was no video recording or witnesses.1/ Respondent also asserted that he would not have committed sexual misconduct against Patient R.A. because she was a female and he was gay, and so was not attracted to her. Curiously, Mr. Rodriguez sought to bolster this claim with testimony that he had performed some massage therapy at Ed Logan's, represented to be a gay resort, and that at one time he had advertised in a gay publication. Since the massage therapist-patient relationship does not appropriately involve sexual motivation of any kind--whether homosexual, bisexual, or heterosexual--it is not entirely clear why Mr. Rodriguez was suggesting that these activities, even had they been supported by additional documentary evidence of some sort, somehow confirmed his testimony. In any event, the assertion that he was gay, even if accepted, would not exonerate Mr. Rodriguez in light of the clear and credible testimony of R.A. in this case. The definition of sexual activity is not limited to physical contact intended to erotically stimulate the therapist, but also includes contact intended to erotically stimulate the patient, as well as contact which is likely to cause such stimulation, regardless of intention, as discussed further in the Conclusions of Law below. Respondent's touching of Patient R.A.'s breasts, nipples, anus, vagina, and clitoris, as described by Patient R.A., was direct physical contact likely to erotically stimulate either person or both. It was clearly outside the scope of practice of massage therapy. The touching described by Patient R.A. was sexual activity as defined under the rule. Patient R.A.'s testimony was clear and convincing and proved that Respondent used the therapist-patient relationship to engage in sexual activity. Patient R.A. testified that after reporting the incident, she "could not function anymore." She saw a poster saying "get a massage for $20 for 30 minutes" on campus, and she broke out in tears. She started counseling and soon after that was put on an antidepressant for a period of five months. Mr. Rodriguez testified that he depends on his massage business to make his living, that he is no longer working at Om'echaye spa, and that he has been painting buildings to pay his bills. There was no evidence to indicate that Mr. Rodriguez has ever had any prior discipline imposed in connection with his massage therapy license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy, enter a final order finding Ernesto Rodriguez in violation of section 480.0485, Florida Statutes, and Florida Administrative Code Rules 64B7-26.010 and 64B7-30.001(5), constituting grounds for discipline under section 480.046(1)(p), Florida Statutes; imposing a fine of $2,500.00; revoking his license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 30th day of August, 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 30th day of August, 2017.
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 July 31, 2008, the Department issued Respondent license number MA 54053, which authorized her to practice massage therapy in the state of Florida. Respondent's address of record is 2615 South University Drive, Davie, Florida 33328. The Events Respondent was born in China and, at all times relevant to this proceeding, was a citizen of China. In 2001, Respondent immigrated to the United States and became a citizen of the state of California. In or around December 2006, Respondent enrolled at Royal Irvin College ("Royal Irvin"), an institution located in Monterey Park, California, that offered massage therapy instruction. Some three months later, upon Respondent's successful completion of a course of study comprising 500 hours, Royal Irvin awarded her a degree. Thereafter, Respondent obtained permits to practice massage therapy in three California municipalities and, on July 26, 2007, passed the National Certification Examination for Therapeutic Massage and Bodywork. In early 2008, Respondent relocated to south Florida in pursuit of better-paying employment opportunities. Respondent's search ultimately brought her to "Oriental Massage," whose owner, Ah Ming, informed her that she needed to obtain a Florida license to be eligible for hire. As 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 Mr. Ming, Respondent telephoned Glenda Johnson, the registrar of the Florida College of Natural Health ("FCNH")——a Board-approved massage school. During their initial conversation, Respondent explained her situation to Ms. Johnson, who, in turn, recommended that Respondent come to her office at FCNH's Pompano Beach campus. Respondent's subsequent appointment 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- 32.003 (Oct. 30, 2007), 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 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. (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 (2008), 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 Ms. Johnson, FCNH's registrar, on March 17, 2008. Notably, Ms. Johnson possessed actual authority, on that date and at all relevant times, to generate official transcripts and diplomas on behalf of FCNH. 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 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, copies of her existing professional licenses, and proof of her national certification. As the meeting progressed, Ms. Johnson made copies of Respondent's records and asked her to sign an FCNH enrollment agreement, which Respondent did. The agreement, which is part of the instant record, indicates that Respondent was enrolling for the purpose of "(Transfer of Licensure) Therapeutic Massage Training." The agreement further reflects, and Respondent's credible testimony confirms, that, on the date of their meeting, Ms. Johnson collected $520.00 in fees5/ from Respondent. In addition to the enrollment agreement,6/ Ms. Johnson filled out, and Respondent signed, 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. Before the meeting ended, Respondent observed Ms. Johnson print and sign two documents: an FCNH Certificate of Completion, which reflected that Respondent had satisfied a two- hour course relating to the prevention of medical errors; and an FCNH Certificate of Completion indicating the completion of a "Therapeutic Massage Training Program (Transfer of Licensure)." When asked about the documents, Ms. Johnson informed Respondent, erroneously, that her prior coursework and existing credentials were sufficient for licensure. (Among other things, Ms. Johnson should have advised Respondent that Board-approved coursework in "HIV/AIDS" and the "prevention of medical errors"——neither of which Respondent completed until after7/ the Complaint was filed in this matter——was required8/ 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 booklet home and reviewed its contents. In the weeks that followed, the Department received Respondent's application for licensure and various supporting documents, which included: the FCNH certificates (discussed above); a "Transfer of Credit Form" signed by Ms. Johnson, which indicates that FCNH accepted Respondent's credits from Royal Irvin, and, further, that Respondent's coursework at Royal Irvin included a two-credit class involving the prevention of medical errors; an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing 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 a copy 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.") On May 30, 2008, the Department provided written notification to Respondent that, upon initial review, her application was incomplete because it failed to include copies of her California esthetician's license and massage permit from the city of Costa Mesa, California. Significantly, the correspondence noted no other irregularities or omissions concerning Respondent's application or supporting documentation. Consistent with the Department's request, Respondent furnished copies of her esthetician's license and massage permit from Costa Mesa. Thereafter, on July 31, 2008, the Department issued Respondent her license to practice massage therapy. Although the Department seeks to characterize the issuance of Respondent's license as a "mistake" on its part, such a contention is refuted by the final hearing testimony of Anthony Jusevitch, the executive director of the Board. Mr. Jusevitch testified, credibly, that the Respondent's application materials contained no facial irregularities or flaws that would have justified a denial: Q. Mr. Jusevitch, is this, then, the complete application file that was received by the board? A. Yes. Q. When you look at all of the documents in this application file, is there anything in the file that would have caused the Board of Massage Therapy to reject this application? A. I didn't see anything that would have cause[d] us to reject this application when I review it; no. * * * A. No, there was nothing irregular about the application. . . . Final Hearing Transcript, pp. 83; 86. 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. 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, but she denied——untruthfully, 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 200 to 250 graduates, including Respondent, whose credentials FCNH could not confirm.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding Respondent not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 14th day of June, 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 14th day of June, 2013.
The Issue The issues in these consolidated cases are whether Respondent committed sexual misconduct as charged in the Administrative Complaints, and, if so, what penalty should be imposed.
Findings Of Fact The Department is charged with regulating the practice of massage therapy pursuant to chapters 456 and 480, Florida Statutes. At all times material to this case, Respondent was a licensed massage therapist in Florida, having been issued license number MA 11149. Respondent has practiced massage therapy for approximately 30 years. Client M.S., DOAH Case No. 20-4754PL On January 10, 2018, M.S. completed her initial client intake form with Respondent which contained several sections. M.S. wrote that she suffered from post-concussion syndrome. According to M.S., she was diagnosed with post-concussion syndrome and mild traumatic brain injury after a log fell on her head in August of 2017. Under the heading “concerns,” M.S. wrote: “I’m going crazy and losing memory completely—eyes burning.” Under “recent changes,” M.S. wrote: “loss of memory, confusion, irate, irritability, uncontrollable anxiety, depression, extreme vertigo, unable to focus or comprehend, extreme nervousness and feeling out of control emotions.” M.S. had four massage sessions with Respondent on January 10, 19, 24, and 31, 2018. M.S. removed her shoes but was otherwise fully clothed during all four massage sessions. The Department alleges that the sexual activity occurred during M.S.’s fourth and final session on January 31, 2018. Specifically, the Department alleges that Respondent touched M.S.’s labia with his fingers, rested his fingers on M.S.’s vagina, and cupped her vagina.2 During her testimony, M.S. demonstrated how Respondent touched her vagina. Using her own hand to demonstrate, M.S. placed her hand above her vagina with her fingers pointed in a horizontal position. M.S. did not indicate that Respondent “cupped” her vagina during this demonstration. Respondent denies that he touched M.S.’s labia with his fingers, rested his fingers on her vagina, or cupped her vagina. Respondent’s testimony as to the touching that occurred during the January 31, 2018, massage session was credible and more precise than that of M.S. Respondent’s testimony is accepted over the testimony of M.S. where it conflicts. Dr. George Rozelle is the physician who owns the facility where Respondent performed massage therapy on M.S. The Department offered hearsay testimony from a witness who heard Dr. Rozelle say “not again” when M.S. told him that Respondent had touched her inappropriately during the massage session that occurred that day. The inference suggested by the Department is that Respondent had been previously accused of inappropriately touching other massage therapy clients on other occasions. 2 The Department also states in its PRO that Respondent touched M.S.’s breasts. The Administrative Complaint in DOAH Case No. 20-4754PL does not, however, identify the touching of M.S.’s breasts as a sexual activity that occurred when Respondent massaged her, and therefore cannot serve as a basis for disciplinary action in this case. Trevisani v. Dep’t of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Delk v. Dep’t of Prof’l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992). The testimony is hearsay for which the Department failed to establish an exception, and is unreliable because Dr. Rozelle did not testify to explain what he meant when he said “not again.” Even if Dr. Rozelle said “not again,” because there were one or more prior similar complaints about Respondent, such unproven allegations cannot be relied upon here to establish that Respondent had a propensity to commit sexual misconduct on massage therapy clients. § 120.57(1)(d), Fla. Stat. For all of these reasons, the “not again” statement is not accepted as evidence against Respondent. The Department failed to prove that Respondent engaged M.S. in sexual activity, or that Respondent touched M.S. in a manner that was intended to, or likely to, erotically stimulate himself or M.S. Client S.B., DOAH Case No. 20-4755PL S.B. presented to Respondent for massage therapy for the first time on August 15, 2017. S.B. completed a client information form indicating that the reason for her visit was “low energy, lost, depressed.” S.B. wrote that she experienced these conditions for four years, that they followed an undisclosed accident, trauma, or illness, and that they were aggravated by “life.” S.B. was seen by Respondent for massage therapy on nine different occasions on August 17 and 20, and October 10 and 19, 2017; January 16, 23, and 30, and February 6 and 15, 2018. Respondent was fully clothed during all the massage sessions with Respondent. S.B. testified that Respondent told her that he “loved” her and that he was “never going to leave” her during several visits, but she could not identify when Respondent made those statements. S.B also testified that Respondent told her that she may experience an orgasm when he applied pressure to her groin during a session, but she could not recall when that happened. S.B. testified that she returned to see Respondent for message therapy after he touched her groin and allegedly made the “orgasm” comment, but that she had another female massage therapist with her during the session. Additionally, S.B. testified that Respondent put his hands over her breasts during more than one session, but she could not say how often or when this occurred. S.B. denied that Respondent ever “grasped” her breasts and admitted that she never complained to Respondent about allegedly touching her breasts. Respondent denied that he told S.B. that he “loved” her, that he was “never going to leave” her, or that she might experience an “orgasm.” According to Respondent, he touched S.B.’s adductor muscles and pubic bone—not her vagina—to help reduce her complaint of hip pain during her third visit on October 10, 2017. S.B.’s testimony was imprecise and the facts to which she testified were not distinctly remembered. Respondent’s testimony is accepted over S.B.’s testimony where it conflicts. The Department failed to prove that Respondent engaged S.B. in sexual activity or that Respondent touched S.B. in a manner that was intended to, or likely to, erotically stimulate himself or S.B.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy, enter a final order dismissing the Administrative Complaints. DONE AND ENTERED this 26th day of May, 2021, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2021. COPIES FURNISHED: Mary A. Wessling, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Richard A. Greenberg, Esquire Rumberger Kirk & Caldwell 101 North Monroe Street, Suite 120 Tallahassee, Florida 32301 Julisa Renaud, Esquire Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Kama Monroe, JD, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 Ann L. Prescott, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
