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 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 are whether the Respondent, a licensed massage therapist, violated section 480.046(1)(c), Florida Statutes (2015),1/ by pleading nolo contendere to one count of prostitution; whether she violated section 456.072(1)(x), Florida Statutes, by failing to report the plea to the Board of Massage Therapy within 30 days, as alleged in the Administrative Complaint filed by the Petitioner; and, if so, the appropriate penalty.
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of massage therapy in Florida under section 20.43 and chapters 456 and 480, Florida Statutes (2017). At all times material to the Administrative Complaint, the Respondent was licensed to practice massage therapy in Florida, having been issued license number MA 76935 by the Board of Massage Therapy. On January 14, 2016, the Respondent entered a plea of nolo contendere in case 15-CM-019206-A in Hillsborough County, Florida, to one count of prostitution in violation of section 796.07(2)(e), Florida Statutes (2015), a second-degree misdemeanor. Adjudication was withheld, and the Respondent was required to pay $270 in court costs. The Respondent did not report her plea in that case to the Board of Massage Therapy within 30 days of entering the plea. The Respondent stipulated that the crime of prostitution is directly related to the practice of massage therapy, and that offering to perform a sexual act on a massage client during the course of a massage by a licensed massage therapist is outside the scope of the practice of massage therapy. Despite her nolo contendere plea, the Respondent testified in this case that she was not guilty of prostitution. She also testified that she entered the plea without fully understanding its meaning and consequences, and without legal counsel, and that she would not have entered the plea had she known its meanings and consequences. She introduced no other evidence to corroborate or support her claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: finding the Respondent guilty of violating section 480.046(1)(c) and section 456.072(1)(x); fining her $1,000; revoking her license to practice massage therapy; and awarding costs of investigation and prosecution of this matter to the Petitioner. DONE AND ENTERED this 29th day of August, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2017.
Findings Of Fact At all times material to the allegations of this case, the Respondent has been licensed as a massage therapist in the State of Florida, license no. MA 0007093. The Department is the state agency charged with the responsibility under Florida law of regulating massage therapists. At all times material to the allegations of this case, the Department required that licensees obtain continuing education credits in order to renew massage therapy licenses. The license renewal card sent by the agency to the licensee requires verification that the licensee has met all continuing education requirements. Respondent executed a renewal notice form that represented she had met all requirements for license renewal, including the continuing education commitment. On November 5, 1993, the Department issued a letter to Respondent advising her that her license had been randomly selected for audit for the continuing education requirements for the period January 1, 1991 through January 31, 1993. By such notice, Respondent was requested to complete an audit form and to attach proof of attendance for the continuing education courses attended for the audit period. In order to qualify for acceptance, continuing education courses must be approved by the Department. Courses which have not received approval may not be counted to fulfill continuing education requirements. The Respondent filed a response to the audit including courses which had not been approved by the agency. In follow-up, the Department, by form notice dated December 7, 1993, advised the Respondent that her audit was incomplete. More specifically, the Department advised Respondent that the provider of the continuing education (CE) identified by Respondent was not an approved provider and that the number of courses of approved CE did not show attendance of at least twelve hours. To date, the Respondent has not provided proof of compliance with the CE requirements of the Department. Courses which Respondent attended in connection with another license held by Respondent (nurse), do not comply with the criteria for her license as a massage therapist. Respondent is aware of the different Boards and regulations pertaining to the licenses she holds.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business and Professional Regulation, Board of Massage, enter a final order revoking Respondent's license as a massage therapist and imposing an administrative fine in the amount of $1,000.00. DONE AND RECOMMENDED this 29th day of August, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0148 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 14 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Susan Lindgard Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Diana Wentworth 1500 Pelican Lane Vero Beach, Florida 32963-2644 Anna Polk Executive Director Board of Massage Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 presented in this case are whether Respondent has violated the provisions of Chapters 456 and 480, Florida Statutes, and Florida Administrative Code Chapters 64B7-26, as alleged in the 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. At all times material to the allegations in this case, Respondent was an applicant for or licensed as a massage therapist in the State of Florida, having been issued license number MA52091 on or about December 7, 2007. Respondent's Application for Licensure Respondent applied for a license as a massage therapist in July 2007. His application for licensure was signed and submitted to the Department on or about July 12, 2007. The application includes the following question: 20. Have you ever been convicted of, or entered a plea of guilty, nolo contendere, or no contest to, a crime in any jurisdiction other than a minor traffic offense? You must include all misdemeanors and felonies, even if the court withheld adjudication so that you would not have a record of conviction. Driving under the influence or driving while impaired is not a minor traffic offense for purposes of this question. Respondent answered "no" to question 20 quoted above. At the end of the application is a place for a picture of the applicant and a section labeled "Affidavit of Applicant" which the applicant completes and signs. The affidavit states: AFFIDAVIT OF APPLICANT: I, Marcus McCastler, affirm that I am the person referred to in the foregoing massage therapy licensure application, and that the attached photograph is a true likeness of myself. I understand that it is my duty and responsibility as an applicant for licensure to supplement my application after it has been submitted if and when any material change in circumstances or conditions occur which might affect the Board's decision concerning my eligibility for examination or licensure. Such supplement is required by Chapter 456.013(1), F.S. Failure to do so may result in disciplinary action by the Board including denial of licensure. I have carefully read the questions in the foregoing application and have answered them completely, without reservation of any kind, and I declare that my answers and all statements made by me herein and in support of this application are true and correct. Should I furnish any false information on or in support of this application, I understand that such action shall constitute cause for denial, suspension, or revocation of any license to practice in the state of Florida in the profession for which I am applying. I have read, understand, and agree to comply with the statutes and rules applicable to the practice of my profession in Florida. Respondent signed and dated his application immediately following the declaration quoted above. The answer to question number 20 on his application was false. On August 28, 2002, in Case No. 2001-CT-30030 (Fourth Judicial Circuit, Duval County, Florida), Respondent pleaded nolo contendere to the second-degree misdemeanor of driving on a suspended or revoked license, in violation of Section 322.34(2), Florida Statutes. Adjudication was withheld and court costs were paid. On April 6, 2004, in Case No. 2003-CT-031996-AXXX (Fourth Judicial Circuit, Duval County, Florida), Respondent pleaded nolo contendere to driving with no valid driver's license, in violation of Section 322.03, Florida Statutes. Adjudication was withheld and court costs paid. 11. On December 15, 2004, in Case No. 2004-MM-041686 (Fourth Judicial Circuit, Duval County, Florida), Respondent pleaded nolo contendere to possession of less than 20 grams of cannabis, a first-degree misdemeanor, in violation of Section 893.13(6), Florid Statutes. Adjudication of guilt was withheld and court costs paid. On December 18, 2006, Respondent pleaded nolo contendere to the misdemeanor of permitting an unauthorized minor to drive, in violation of Section 322.35, Florida Statutes. In Case No. 2006-CT-004817 (First Judicial Circuit, Escambia County, Florida), Respondent was adjudicated guilty, fined $200.00, and ordered to pay court costs. On February 14, 2007, Respondent pleaded nolo contendere to possession of less than 20 grams of cannabis, a first-degree misdemeanor. In Case No. 07-00255-MM-MA (Fourth Judicial Circuit, Clay County, Florida), adjudication was withheld and Respondent was ordered to pay $205 in costs. On July 3, 2008, Respondent was arrested and charged with simple battery, in violation of Section 784.03(1)(b), Florida Statutes, a first-degree misdemeanor. On July 4, 2008, Respondent pleaded nolo contendere to the lesser included offense of fighting. In Case No. 2008-MO-18280 (Fourth Judicial Circuit, Duval County, Florida), the Court withheld adjudication and imposed a fine of $250.00. All of the offenses listed above with the exception of the offense described in paragraph 14 occurred before Respondent signed the application for a license as a massage therapist. Respondent claims that he answered question 20 no "reluctantly" on advice of a lawyer at his school. Respondent's claim is not credible. The July 6, 2008 Incident In July 2008, Respondent was employed as a massage therapist by Summit Regency, d/b/a Massage Envy, in Jacksonville, Florida. On or about July 6, 2008, Respondent gave a massage to A.M., a female client of Massage Envy. A.M. has been a licensed R.N. since 1979 and works as a public health nurse at the Duval County Health Department. A.M. had received massages before and Respondent had given her a massage on a previous occasion. On this particular day, she came to Massage Envy with her husband, W.M., who was also getting a massage. Both were using a prepaid plan whereby they received a set number of massages over a defined period of time. A.M.'s massage was scheduled for and took place at approximately 2:00 p.m. Upon entering the room, A.M. was provided with a sheet/drape and Respondent left the room while A.M. undressed, got on the table face down and covered herself with the drape. A.M. testified that, while she was face down on the table and during the massage, Respondent removed the drape, leaving her completely exposed. She testified that about 20 minutes into the massage, Respondent inserted his bare finger into her rectum and pushed his finger to the side of the rectum without her consent and without telling A.M. what he was doing or why. According to A.M., she did not say anything and did not attempt to get down from the table because she was in shock and frightened, and mortified at what Respondent had done. She did not ask him to return the drape until he instructed her to turn over. At that point, he handed her the drape and she turned over onto her back. He massaged her arms and then the massage was over. Respondent, on the other hand, denied removing the drape from A.M.'s body during the massage and adamantly denied inserting his finger into her rectum. A.M. and her husband left Massage Envy after their massages and returned home. A.M. did not tell her husband about the incident until they arrived home, at which time she told him that Respondent had "stuck his finger up her butt." W.M. advised her to report the matter to the police and to call the owner of Massage Envy, which she did. With respect to the owner of Massage Envy, she reported what she believed Respondent had done, and asked for her money back. Her money was refunded to her, and she was provided a copy of the complaint paperwork to file a complaint with the Department of Health. A.M. also reported the incident to the Jacksonville Police Department at approximately 7:00 p.m. that evening, but did not wish to file charges against Respondent. She said she simply wanted to "report it so that it would be on record." She also went to her family physician the next day because her hemorrhoids were bleeding, which she attributed to the incident with Respondent. Respondent was not charged with any crime as a result of events taking place July 6, 2008. However, he was terminated from his employment based on A.M.'s complaint. After careful review of all of the evidence presented at hearing, there is not clear and convincing evidence that Respondent removed the drape inappropriately during the exam or that he intentionally inserted his finger into A.M.'s rectum.
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 that Counts I and II of the Administrative Complaint were not proven by clear and convincing evidence; that Respondent committed the acts charged in Counts III and IV of the Administrative Complaint and by doing so, violated Sections 456.072(1)(h) and (m); 480.046(1)(o); and 480.047(1)(f), Florida Statutes (2007); and revoking his license to practice massage therapy. DONE AND ENTERED this 18th day of October, 2010, 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 18th day of October, 2010.
