The Issue The issues in this case are whether, as Petitioner has charged, Respondent offered for sale training in a program of physical exercise, or the right or privilege to use equipment in furtherance of a program of physical exercise, at an unregistered business location, in violation of section 501.015(1), Florida Statutes; and, if so, whether a penalty should be imposed.
Findings Of Fact The Department is the state agency responsible, among other things, for administering the laws regulating health studios. For purposes of circumscribing the Department’s jurisdiction, the term health studio “means any person who is engaged in the sale of services for instruction, training, or assistance in a program of physical exercise or in the sale of services for the right or privilege to use equipment or facilities in furtherance of a program of physical exercise.” § 501.0125(1), Fla. Stat. Magloire is a person who meets the definition of a “health studio” subject to the Department’s regulatory jurisdiction. During the period from, roughly, December 2018 until December 2019, Magloire operated a gym under the name “Adrenaline Fitness,” which was located at 3700 Northwest 124th Avenue, Coral Springs, Florida (the “Gym”). There is no dispute that Magloire allowed persons to use equipment or facilities at the Gym for the purpose of physical exercise. It is also undisputed that Magloire never registered the Gym with the Department, which would have been required if the Gym were a “business location.” See § 501.015, Fla. Stat. A health studio constitutes a “business location” if “studio services” are performed onsite. The term studio services “means privileges or rights offered for sale or provided by a health studio.” § 501.0125(2), Fla. Stat. Magloire maintains that the Gym was a “private facility” where services were not “offered for sale” to the public, but rather were made available as a convenience to his personal friends and acquaintances. The relevant distinction here, however, is not between private and public facilities, per se, but between commercial and noncommercial gyms. A homeowner who installs exercise equipment in his garage for personal use and invites a few friends over for a workout once in a while does not thereby turn his home into a “business location.” Magloire’s Gym did not involve this kind of obviously personal, noncommercial use. Magloire testified that many of the persons who worked out at the Gym did not pay him with money for the privilege, although a few did, occasionally, tender cash; the undersigned accepts this as true. Magloire admitted, however, that he received other valuable consideration from guests, such as services, in exchange for his letting them use the Gym’s equipment and facilities. The undersigned determines as a matter of ultimate fact, based on clear and convincing evidence, that the Gym constituted a “business location” where “studio services” were “offered for sale.” Magloire, therefore, was required to register the Gym with the Department pursuant to section 501.015(1), which he failed to do, in violation of the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order imposing a fine of $1,000 against Magloire for providing studio services at an unregistered business location in violation of section 501.015(1), Florida Statutes. DONE AND ENTERED this 24th day of February, 2020, in Tallahassee, Leon County, Florida. S 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 24th day of February, 2020. COPIES FURNISHED: Genevieve Hal1, Esquire Amanda B. McKibben, Esquire Department of Agriculture and Consumer Services 407 Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Vladimir Magloire Adrenaline Fitness Studio 10370 Northwest 40th Place Coral Springs, Florida 33065 (eServed) Tom A. Steckler, Director Division of Consumer Services Department of Agriculture and Consumer Services Mayo Building, Room 520 407 South Calhoun Street Tallahassee, Florida 32399-0800
The Issue The issues presented in this case are whether Respondent has violated the provisions of chapters 456 and 480, Florida Statutes, as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The following findings of fact are based on the testimony, evidence admitted at the formal hearing, and the agreed facts in the pre-hearing stipulation. The Department is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43, Florida Statutes, and chapters 456 and 480. At all times material to the allegations in this case, Respondent was licensed to practice as a massage therapist in the State of Florida, having been issued license number MA 79509. At all times material to the allegations in this matter, Respondent was employed as a massage therapist at Daytona College, in Daytona Beach, Florida. Respondent’s address of record is 10 Spanish Pine Way, Ormond Beach, Florida 32174. S.W. is a licensed mental health counselor who has been licensed for approximately 22 years. She resides in Clermont, Florida, which is where she lived at the time of the massage. In July 2017, S.W. and C.W., her 23-year-old daughter, traveled to the Daytona Beach area to visit S.W.’s elderly mother. On July 19, 2017, S.W. and C.W. went to Daytona College, for the first time, for a massage. Upon arriving at the school, they were greeted by the receptionist. S.W. and C.W. were scheduled for 80-minute massages to take place at 3:30 p.m. However, the ladies arrived ten minutes late, so the massages began late. Upon arrival, the ladies were asked whether they needed to use the restroom, which they did. After using the restroom, the ladies were taken to the massage area for their services. S.W. selected the male massage therapist based on her past positive experiences with male therapists. S.W. had received a number of massages in the past, including massages by men. She allowed her daughter to be scheduled with the female massage therapist because she believed her daughter preferred a woman. S.W. was scheduled for a massage with Respondent, and C.W. was scheduled with Elizabeth Branson. Respondent escorted S.W. to the massage room first. Ms. Branson escorted C.W. to the room a few minutes later. As Respondent escorted S.W. to the massage room, S.W. described the areas in which she wanted special attention, including her neck, shoulders, scalp, and feet. Respondent asked S.W. whether she needed massage in the sciatic area. S.W. had problems in the sciatic area, so she consented to have the area massaged. The common room where massages occurred at Daytona College contained eight massage tables separated by curtains. Respondent took S.W. into the massage room and instructed her to undress to her comfort level. Respondent left the room while S.W. undressed down to her underwear. When Respondent reentered the room, S.W. was draped with a sheet. Respondent tucked the drape into S.W.’s underwear and lowered it onto her buttocks. A short time later, S.W. could hear her daughter in the area near her, but she could not see her. C.W. whispered to S.W. to let her know she was in the room. At some point, S.W. heard her daughter exit the room. C.W. finished her massage before S.W., even though S.W.’s service began before C.W.’s. C.W. recalled that her mother was unusually quiet during the massage instead of being “chatty,” as she normally would be. C.W. waited in the hallway outside the massage room for four or five minutes for S.W.’s massage to finish. After S.W. came out of the massage room, C.W. immediately noticed that something was wrong. When S.W. exited the room, she was “wired” and not relaxed, as she would normally appear after a massage. C.W. described her as appearing nervous and agitated. C.W. could tell that something was wrong, but S.W. did not say anything at that time. The two ladies walked to the front desk. As was her routine, S.W. paid for both massages and left a $10 tip. She did not make a complaint regarding the massage with the receptionist before leaving the school. Concerned regarding her mother’s behavior, C.W. asked S.W. what happened. S.W. stated that something weird happened. The ladies left the school and began driving to their destination. S.W. continued to be upset and ultimately, began crying. She was so upset that initially, she could not articulate what occurred. S.W. ultimately told C.W. that Respondent had placed his hand under her underwear and touched her clitoris. S.W. contacted her friend Mike, a law enforcement officer. S.W. explained to Mike what happened, and he suggested that she contact the police to report what happened to her. S.W. and C.W. called the police and requested that an officer meet the ladies at Daytona College. They also contacted the school and advised them that S.W. had been inappropriately touched during her massage. They arrived back at the school approximately 20 minutes later. The officer arrived shortly after S.W. and C.W. The officer interviewed S.W. and she reported to him that while massaging her thighs, Respondent “grazed” her vaginal area with his finger. S.W. also reported that Respondent touched her clitoris with his finger. S.W. declined to pursue criminal charges and stated she would file a complaint with the Department. However, she expressed that she wanted to ensure there was a record of the incident so another woman would not have the same experience. On or about July 26, 2017, one week later, S.W. filed a complaint with the Department of Health. S.W. submitted a typewritten statement regarding the events involving Respondent. S.W. related that at the beginning of the massage, she gave Respondent permission to pull down her underwear and tuck in the drape. She stated that toward the end of the massage, Respondent “grazed” her vagina outside her underwear. He then placed his finger under her underwear and began massaging her clitoris for a couple of seconds. She stated that she grabbed Respondent’s hand and pushed it away. In response, Respondent abruptly told S.W. that the massage was done. In addition to the report to the police and the Department, S.W. also reported the incident to the school administrators, Dr. Ali and Mr. Brooks. Dr. Ali met with S.W. and C.W. when they returned to the school. Dr. Ali described S.W. as appearing embarrassed, subdued, and uncomfortable. Mr. Brooks was also present during the meeting. He was called to campus after he received a report that something inappropriate happened. He observed that S.W. appeared upset. Although there was no expert offered to testify in this matter, Chris Brooks, LMT, provided insight regarding the type of massage provided to S.W. He explained the difference between sensualized touch and sexualized touch. A sensualized touch is not uncommon in massage. On the other hand, sexualized touch is used to evoke sexual pleasure. At hearing, S.W. was clear and unwavering in her recollection of the events involving Respondent touching her vaginal area. S.W. appeared anxious, uncomfortable, and her voice cracked when she testified that Respondent moved her underwear and touched her vaginal area. Specifically, she testified that Respondent grazed her vagina on top of the front of her underwear. She was in such shock that it happened she could not say anything. Respondent then put a bare finger underneath her underwear and began massaging her clitoris. She still could not speak, so she quickly grabbed his hand and pushed it away. Consistent with her statement to the police officer and her written statement, she credibly testified that Respondent touched her vaginal area with his finger. At hearing, Respondent denied touching S.W.’s vagina during the massage. He also denied rubbing her clitoris. Mr. Brooks, who is personally and professionally acquainted with Respondent, testified that Respondent seemed shocked to learn of S.W.’s complaint. Respondent testified that he draped S.W.’s legs in such a way that it caused the draping to “bunch” between the area massaged and the genitalia. Respondent argues that S.W. could not determine whether the draping touched her genitals when Respondent massaged her legs. However, when pressed on this point, S.W. unequivocally testified that she was certain it was Respondent’s finger that touched her clitoris. Respondent had no prior complaints of inappropriate touching before S.W.’s complaint. Although Mr. Brooks asked him about the complaint on the date of the incident, there was no evidence offered at hearing that Respondent was formally interviewed by the school administration. However, Respondent was terminated from his job at Daytona College based on S.W.’s complaint. Respondent was also not interviewed by the police officer investigating the complaint. Respondent was not charged with a crime. Respondent has no prior disciplinary action involving his license to practice massage therapy. The evidence demonstrates that Respondent crossed the boundaries of appropriate massage into sexual misconduct when he massaged S.W.’s clitoris with his finger. While Respondent’s testimony seemed sincere, S.W. was more persuasive. Based on the totality of the evidence presented at hearing, there is clear and convincing evidence that Respondent touched S.W.’s vaginal area or clitoris with his finger. The placement of a massage therapist’s finger on the vaginal area or clitoris of a patient is outside the scope of the professional practice of massage therapy.
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 sections 480.046(1)(p) and 480.0485 as further defined in rule 64B7-26.010; Imposing a fine of $2,500; and Revoking Respondent’s license to practice massage therapy. DONE AND ENTERED this 5th day of April, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 5th day of April, 2019.
The Issue Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3 The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4 Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination. Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider. Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider certified by the Department [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect. Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule. Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination." The Federation of State Boards of Physical Therapy is the "provider" of the NPTE. The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7 It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions"). The examination is highly reliable in its measurement of entry-level knowledge in the discipline. "From a psychometric and statistical [perspective], [a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]." It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results. Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena. It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination. "[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
Findings Of Fact Respondent, Miami Fitness, Inc. (Miami Fitness), advised Petitioner, the Department of Agriculture and Consumer Services (Department), by letter dated October 30, 1993, that Miami had purchased the assets of Body Mystique, a health studio, and would honor all of its memberships. Miami Fitness was to begin operations as of November 1, 1994. Miami Fitness registered with the Department as a health studio and posted an irrevocable standby letter of credit for $50,000. The letter of credit was amended on July 26, 1994, to extend the expiration date to October 29, 1995. The purpose of the letter of credit is to protect the members of the health studio. Money would be available to compensate members if Miami Fitness went out of business or the members' contracts were not assigned to a facility of equal quality within a five mile radius of Miami Fitness. Refunds would be made on a pro rata basis. Body Mystique had been a women's only health studio as was it predecessor My Fair Lady. At one time Body Mystique had requested permission from the Department to turn the all women's facility into a coed health studio, but the Department denied the request. When Miami Fitness purchased Body Mystique, it continued to operate the facility as an all women health studio. The facilities occupied by Miami Fitness had been an all women's health studio for 23 years. Miami Fitness advertised and promoted the health studio as the "total fitness studio for women." It also advertised that its weight room was for women by stating: "Our weight training area is unique in that it is specifically designed for women." Miami also promoted its wet area. One advertisement stated: "We have all the amenities that a woman needs: sauna, steamroom, eucalyptus room, showers, dressing area; and great aerobic classes on a suspended wood floor, with a fully equipped weight room and cardiovascular area specifically designed for women." The contracts between Miami Fitness and its members included a provision that the member may cancel and receive a refund if Miami Fitness closes and does not provide the member with "similar facilities of equal quality" within a five mile radius of the closed facility. On February 10, 1995, Joe Alexionok, a consumer services consultant with the Department, was notified that Miami Fitness had closed its doors. By letter dated February 26, 1995, Mr. Alexionok requested Miami Fitness to advise the Department whether Miami Fitness was going to provide services or make pro- rata refunds. By letter dated March 10, 1995, Patty Kinast, President of Miami Fitness, notified the Department that Miami Fitness had made an agreement with U.S. 1 Fitness to assume Miami Fitness memberships. Having determined that U.S. 1 Fitness was not a facility of equal quality, the Department sent certified letters to the bank holding the letter of credit and to Patty Kinast that the Department would make a demand upon the letter of credit to refund members who filed a complaint against Miami Fitness because U.S. 1 Fitness was not of equal quality. A notice was also published in the Miami Post advising that anyone having a claim against Miami Fitness must file the claim with the Department by September 30, 1995. U.S. 1 Fitness is a coed health studio which is located within a five mile radius of Miami Fitness. U.S. 1 Fitness does not have a sauna, steamroom or eucalyptus room. U.S. 1 Fitness has approximately 2,500 members with approximately 900 active members. Miami Fitness had a membership of about 1,000 with approximately 400 members who were active. U.S. 1 Fitness' facility has approximately 11,000 square feet. Miami Fitness' facility had approximately 4,600 square feet. Miami Fitness was open during the following hours: Monday and Tuesday, 7:00 a.m. - 9:30 p.m.; Wednesday-Friday, 7:00 a.m - 9:00 p.m.; Saturday, 9:00 a.m. - 5:00 a.m.; and Sunday 10:00 a.m. - 5:00 p.m. U.S. 1 Fitness is open during the following hours: Monday-Friday, 5:00 a.m. - 11:00 p.m. and Saturday and Sunday, 7:00 a.m. - 8:00 p.m. U.S. 1 Fitness offers 38 exercise-type classes each week, including a yoga class on Tuesday and Thursday mornings. Miami Fitness offered 32 exercise- type classes each week with a yoga class on Tuesday and Thursday mornings and on Wednesday evening. The yoga classes at U.S. 1 Fitness are taught by the same instructor who taught morning yoga classes at Miami Fitness. U.S. 1 Fitness has exercise classes which are equal in quality to those provided by Miami Fitness. As part of the agreement with U.S. 1 Fitness, Miami Fitness transferred some of its equipment to U.S. 1 Fitness. U.S. 1 has equipment which is newer than the Miami Fitness' equipment. U.S. 1 Fitness has as good or better equipment than Miami Fitness did. U.S. 1 Fitness has babysitting services as did Miami Fitness. U.S. 1 Fitness' babysitting services are as good as or better than the babysitting services at Miami Fitness. U.S. 1 Fitness is located in well-lighted shopping center area and has as good or better security as Miami Fitness. After Miami Fitness closed, the Department received 12 written complaints from Miami Fitness members. The majority of the complaints were based on a lack of wet facilities at U.S. 1 Fitness and U.S. 1 Fitness not being an all women's facility. Most of the complainants had joined Miami Fitness because it was a women's only facility. They felt uncomfortable and self conscious exercising in a coed facility. They liked the facility because it was small, not crowded, and had a friendly, intimate atmosphere. At least two of the complainants had visited U.S. 1 Fitness before signing up with Miami Fitness and preferred Miami Fitness over U.S. 1 Fitness. While Miami Fitness was operating, between 25 and 50 members regularly used the wet facilities each week. U.S. Fitness 1 is not a facility of equal quality to Miami Fitness as it relates to the wet area and the membership being exclusively women.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Miami Fitness, Inc. did not provide its members with a facility of equal quality and that the twelve written claims made by the members of Miami Fitness, Inc., because it was not a facility of equal quality be certified as valid claims against the irrevocable standby letter of credit given to the Department of Agriculture and Consumer Services by Miami Fitness, Inc., and that any written claims filed on or before September 30, 1995 by members on the basis their contracts were not assigned to a facility of equal quality be certified as valid claims against the irrevocable standby letter of credit. DONE AND ENTERED this 25th day of September, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 25th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2964 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-14: Accepted in substance. Paragraph 15: Rejected as unnecessary detail. Paragraphs 16-21: Accepted in substance. Paragraph 22: The first, fifth, sixth, seventh, ninth, and eleventh sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 23: The first, fourth, and sixth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 24: The first, fourth, fifth and sixth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 25: The first, second, third, sixth, and eleventh sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 26: Rejected as unnecessary. Paragraph 27: Accepted in substance. Paragraph 28: The first, third, sixth, and seventh sentences are accepted in substance. The eighth sentence is rejected as not supported by the greater weight of the evidence. The remaining is rejected as unnecessary detail. Paragraph 29: The first, third, fourth, fifth, seventh, eighth, and fourteenth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 30: The first and third sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraph 31: Accepted in substance. Paragraph 32: The first and third sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 33: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 34: Rejected as unnecessary. Paragraph 35: Accepted in substance. Paragraph 36: The fourth sentence is accepted in substance. The remaining is rejected as unnecessary detail. Paragraphs 37-40: Rejected as subordinate to the facts found. Paragraph 41: The third, fourth, eighth, ninth and tenth sentences are accepted in substance. The fifth sentence is accepted in substance as it relates to equipment and number of classes but not as to atmosphere. The remainder is rejected as unnecessary. Paragraphs 42-43: Rejected as unnecessary. Paragraph 44: The fifth sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 45: The first, fourth, sixth, seventh, eighth, eleventh, and twelfth sentences are accepted in substance. The ninth sentence is rejected as it relates to those women who filed complaints because U.S. 1 Fitness was coed. The remainder is rejected as unnecessary detail. Paragraph 46: Rejected that the facilities were comparable. Paragraph 47: Accepted in substance except U.S. 1 Fitness had 38 classes. 26. Paragraph 48: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraphs 1-14: Accepted in substance. Paragraph 15: The first sentence is accepted. The second sentence is rejected to the extent that it implies that the wet facility at Miami Fitness was not a reason for choosing Miami Fitness and was not used or enjoyed by it members. Paragraphs 16-17: Accepted in substance. Paragraph 18: Rejected as subordinate to the facts found. COPIES FURNISHED: Lawrence J. Davis, Esquire Office of the General Counsel Florida Department of Agriculture & Consumer Services The Capital, Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Lloyd B. Silverman, Esquire 2800 West Oakland Park Boulevard, Suite 201 Oakland Park, Florida 33311 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The Board of Massage has charged John Ernest Hall with violations of Section 480.11(1)(a)(f)(g) and (j), Florida Statutes, "due to events on or about September 25, 1974, wherein employees of yours (Hall) at the Isometric Bath House, Ft. Lauderdale, were arrested on charges of touching the sex organs of clients, failing to have a licensed masseur on the premises and allowing unlicensed persons to give a massage." Hall petitioned for a formal hearing to resolve controverted issues of material fact, and the matter was referred to the Division of Administrative Hearings for hearing pursuant to Section 120, Florida Statutes.
Findings Of Fact Detective Hudson was called by the Board and testified that shortly prior to 4:30 p.m. on September 25, 1974, that he entered the Isometric Bath House in Ft. Lauderdale, Broward County, Florida, in the course of conducting an undercover investigation of illegal activities which had been brought to his attention by a usually reliable confidential source. There he asked Mary Yvonne Adams the price for a massage, and was advised that this would cost $50. Detective Hudson paid the $50 and was required to sign a "release" which stated that he was not a police officer and that the relaxation treatment which he was to receive was not a massage. Having signed the release, Detective Hudson was conducted to a room within said bath house where he was told to disrobe and was then taken by Adams to another room in the establishment which contained a low bench, a bath tub and a stand containing oils and lotions. Hudson was told to lie down on the bench where Adams, who was in the nude, began to rub and knead the muscles of his back and legs. He was then directed to get into the bath tub, where Adams soaped and scrubbed him with a sponge. During this process, Adams began to rub Hudson's private parts with the sponge, and in reply to a question by Hudson, advised Hudson this was necessary to prevent being "busted" by the police because the law prohibited a "touching". Thereafter Adams dropped the sponge and manually manipulated Hudson's private parts. Hudson questioned Adams about the availability of other forms of sexual release and was advised by Adams that the bathhouse offered an escort service but that sexual activity with one of the girls supplied was not included but optional dependent upon the girls. Thereafter, Hudson left the bath, redressed, and went outside the premises where he met with Detective Deaton, his backup officer. After describing the activities of the bath house, they re-entered the bath house together, identified themselves as police officers and arrested Adams and Barney Michael Woods. The officers obtained the $50 which Hudson had given Adams which had been previously marked, searched the premises, and found two or three other unidentified persons on the premises. Hudson testified that he removed a certificate of licensure #2344 issued to John Ernest Hall from the wall of the bath house, but that the search mentioned above did not reveal Hall to be on the premises. Rex Smith was called by the Hearing Officer and testified that neither Woods nor Adams held massage licenses. Hall took the stand and testified that he has practiced massage for many years having received training in both massage and chiropractic. His work experience included being head masseur on the Queen Mary, and masseur at a Miami hotel for over ten years; however, a change in management of the hotel had resulted in the loss of his position closely followed by a serious automobile accident which injured his shoulder. Having recovered from the accident, Hall's doctor advised him he could return to work but only on a part-time basis. Shortly thereafter Hall had answered a newspaper advertisement for a masseur. As a result of answering this advertisement, Hall met with Michael Woods, who was in the process of opening an isometric exercise facility and bath house. Hall told Woods that he could work only part-time which was agreeable with Woods. It was agreed that Hall would receive $50 per week and a percentage of the fees for his services on an appointment basis. He had started working four hours per day but because business was slow he reduced his hours to two hours per day. His clients were primarily by appointment. His appointments were made by the receptionist and the only employee who he knew was "Yvonne" who was an isometric therapist. Hall in response to questioning, indicated that the equipment maintained at the bath house was that which one would expect of an isometric exercise studio and bath house and that he was unaware of any illegal activities occurring on the premises during the hours he was present and was certainly unaware of any such activities when he was not present during the three weeks the bath house was in operation prior to the arrest of Woods and Adams. Hall testified he lived 8-10 miles from the bath house. Hall testified that he thought the isometric therapist had received training in isometric exercise, a recognized physical therapy.
Findings Of Fact Thomas R. Felts applied to the City of Hollywood, Florida for appointment as a firefighter. He took and passed the Civil Service examination, the physical examination and physical agility test used by the City of Hollywood to qualify firefighter applicants. Following successful completion of the tests above noted two things only stood between Felts and employment as a firefighter. First, he had to complete the firefighter training school and second, receive certification from the State Fire Marshal's office. Prior to entering the four weeks training program Felts was advised by Respondent that, because of the condition of his hands, he could not meet the State's physical requirements for certification even if he successfully completed the training program. Felts was born May 28, 1949. In 1969 he was involved in an industrial accident which severely damaged both hands. Upon his discharge from further treatment in 1972 Felts' hands are described in the attachment to Dr. Angelides' deposition as follows: Examination of the right hand re vealed a reconstituted thumb, extending to the level of the IP joint. The patient's index finger was totally absent having undergone a ray amputation. The long finger was amputated at the level of the PIP joint. The ring finer was amputated through the level of the DIP joint. There was a well-healed skin graft over the ulnar border of the finger, and the ulnar half of the finger was anesthetic. The fifth finger was normal. There were multiple well-healed lacerations of the right hand. Examination of the left hand revealed an amputation of the left thumb, through the level of the MP joint. The index ray was absent and the patient's long finger was amputated through the level of the PIP joint. The ring and fifth finger were normal. There were multiple well-healed scars and skin grafts of the left hand. There was a flexion deformity of forty degrees at the MP joint of the left long finger. In lay language Petitioner has one-half thumb (reconstituted) on the right hand, no thumb on the left, no index finger on either hand, one half middle finger on each hand, and the tip of the ring finger missing on the right hand. Subsequent to his accident Petitioner has worked as a life guard and as a building contractor. In the latter capacity he has wielded a hammer, climbed scaffolding, operated power tools and handled hoses for spraying and pouring concrete. After his release from further medical treatment Petitioner started a physical therapy program including weight lifting. This program had been ongoing for some seven years at the time Petitioner applied for the firefighter's position. As a result of this program and Petitioner's dedication he has developed a powerful body on a 182-pound frame capable of bench pressing 385 pounds and doing one-handed pull-ups (chins) with either hand. When tested by the City of Hollywood Petitioner passed the Minimum Physical Fitness Requirements in National Fire Protection Association's Fire Fighter Professional Qualifications, NFPA No. 1001, plus a ten-foot rope climb and swimming tests not contained in NFPA No. 1001. Prior to 1979 Respondent used the Minimum Physical Fitness Requirements of NFPA No. 1001 as a condition for certification. These requirements were abandoned as a result of a suit brought by EEOC alleging that these physical requirements, which test strength, endurance and agility, were unfair to female applicants who did not have sufficient upper body strength to perform those tasks. Although the physical fitness requirements were abandoned, Respondent retained the physical standards contained in NFPA No. 1001 and adopted those standards in Rule 4A-37.05(3), Florida Administrative Code. These rules provide for rejection of a candidate for firefighter when the medical examination reveals any of the following conditions: 2-2.6.1.2 Hand and Fingers. The causes for rejection for appointment shall be: Absence (or loss) of more than 1/3 of the distal phalanx of either thumb. Absence (or loss) of distal and middle phalanx of an index, middle or ring finger of either hand irrespec tive of the absence (or loss) of little finger. Absence of more than the distal phalanx of any two of the following fingers, index, middle finger or ring finger, of either hand. Respondent is disqualified on each of these three grounds.
The Issue The issue in this case is whether Ms. Nalda, a foreign trained applicant for licensure as a physical therapist by examination, has proven that she is eligible to sit for the licensure examination required by Section 486.031(3)(b), Florida Statutes (1935). In its preliminary action, the Board had indicated that Ms. Nalda has not presented evidence of educational credentials which are "deemed equivalent to a bachelor's degree in physical therapy in the United States" as required by Rule 21M-7.020, Florida Administrative Code (1966).
Findings Of Fact Ms. Nalda received her educational preparation in physical therapy in Bogota, Colombia. When she submitted her application for licensure by examination as a physical therapist, she also submitted an evaluation of her educational preparation in physical therapy performed by the International Education Research Foundation, Inc., dated December 5, 1983. It states in pertinent part: The Diploma is recognized as equivalent to a valid bachelor's degree in the United States. When Petitioner was first certified for examination by the Physical Therapy Council, the Council had misunderstood the meaning of the letters of evaluation it received from the International Education Research Foundation, Inc., such as the one quoted above. The letter did not state that the educational preparation under review was equivalent to a valid bachelor's degree in physical therapy in the United States, but the Council treated it that way. Due to this misunderstanding, the Council permitted Ms. Nalda to sit for the physical therapy examination three times, each of which she failed. The fourth time she applied for examination, she was denied the opportunity to be examined because the Council realized her educational credentials were not deemed equivalent to a valid bachelor's degree in physical therapy in the United States. Ms. Nalda requested a second evaluation from International Education Research Foundation, Inc., as well as an evaluation from another agency, International Consultants of Delaware, Inc. The Physical Therapy Council reviewed both of them. Neither evaluation deemed Petitioner's credentials to be equivalent to a valid bachelor's degree in physical therapy in the United States, and both identified specific deficiencies in her educational preparation. The September 24, 1986 evaluation of International Consultants of Delaware, Inc., states that Ms. Nalda lacks ten semester credits in humanities and two semester credits in natural sciences. A transcript from Miami Dade Community College dated May 6, 1967 (admitted into evidence without objection), shows that Ms. Nalda has completed three semester hours in English writing, twelve semester hours in elementary and intermediate Spanish, and three hours in general education biology. Ms. Nalda experienced significant delays in receiving communications from the office of the Physical Therapy Council, which caused her to make numerous telephone calls to the office to determine the status of her applications. Ultimately, she engaged an attorney to assist her in the licensure process. During the period from the date of her first application for licensure through the date of the hearing, Ms. Nalda submitted at least four applications for licensure. Those documents hear different last names and at least four different addresses. At no time did Ms. Nalda notify the Board that she had changed her address. The applications were treated as separate applications from different people. Although there were valid reasons for the different names appearing on Ms. Nalda's applications, due to her divorce and remarriage, the various forms of her name, the number of applications and the many addresses contributed to confusion on the part of the Board of Medical Examiners, Physical Therapy Council, and accounts for the difficulty she encountered in determining the status of her applications.
Recommendation It is RECOMMENDED that the licensure application of Myriam Nalda to sit for the licensure examination be GRANTED. DONE AND ORDERED this 17th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2966 The following constitute my rulings on the proposed findings of the parties as required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findings of Fact Submitted by Petitioner The Petitioner's proposal is in narrative form, not in the form of Proposed Findings of Fact. I have generally accepted the proposals that evaluations of Ms. Nalda's educational credentials have been performed by the agencies identified in Rule 21M-7.020(3)(a) and (b), and that she has completed course work prescribed by an evaluation agency to render her degree equivalent to a bachelor's degree in physical therapy. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Findings of Fact 1 and 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 4. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 8. COPIES FURNISHED: Ms. Myriam Lucia Nalda Van B. Poole, Secretary 9115 Southwest 150th Ave Department of Professional Miami, Florida 33196 Regulation 130 North Monroe Street Patricia V. Russo, Esquire Tallahassee, Florida 32399-0750 Department of Legal Affairs The Capitol, Suite 1601 Joseph A. Sole, General Counsel Tallahassee, Florida 32399 Department of Professional Regulation Ms. Dorothy Faircloth 130 North Monroe Street Executive Director Tallahassee, Florida 32399-0750 Department of Professional Regulation Marcelle Flannigan, Director Board of Medicine Physical Therapy Council 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399 Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Respondent, Palm-Miami Beach Academy of Beauty Culture, Inc. (school), is licensed to operate a cosmetology school at 634 Belvedere Road, West Palm Beach, Florida. Official agency records reflect that respondent was assigned license number CT 0000333 by petitioner, Department of Professional Regulation, Board of Cosmetology (DPR or Board) effective August 14, 1987. The school's owner and president is Hasan Shihada, who has operated another licensed cosmetology school, Miami Beach Unisex Beauty School, Inc., in Miami Beach, Florida for almost ten years. Shihada purchased the school in 1987 from Ena Salup, who previously operated the school under the name of Ena's Beauty School. Shihada considers the school to be a division of his Miami Beach facility although he understands that each school must be operated as a separate entity with its own license. After being advised that a license number had been assigned to respondent, a DPR investigator, Jean Robinson, made an initial inspection of the facility on September 24, 1987. She returned several times that fall but never found the school open. After checking with the Board's office in Tallahassee to ascertain if the school had actually opened, Robinson learned that the school had sent the Board average daily attendance reports for the months of November and December, 1987. These reports reflected that twelve and five students, respectively, had attended the school during those two months. Robinson thereafter telephoned Shihada and made an appointment to meet him at the school on Tuesday, January 12, 1988. The purpose of the visit was to review the school's records and to otherwise verify that the licensee was in conformity with all Board regulations. On January 12, 1988 Robinson met Shihada at the school. The school was closed but Shihada gave her access to the premises. Upon entering the premises, Robinson saw no students, cosmetology supplies or other evidence of an active operation. She also observed that the license of only one instructor was on the wall even though Board rules require that the school have two licensed instructors in its employ during the first year of operation. When Robinson asked to see the student records, Shihada called Salup, who had an office in an adjacent building. After Salup came to the school, she and Shihada retrieved a handful of 5x7 file cards which contained the names and addresses of a few students and the apparent payments made by them to the school. Only three of the names matched up with the names previously sent by respondent to the Board's Tallahassee office. There were also no student attendance records, executed student enrollment contracts or monthly statements of student hours. These records are required to be maintained by the licensee for all active students. When Robinson asked where the other student records were, Shihada and Salup spoke in Spanish and then Shihada advised Robinson that all files were at Salup's home. Robinson instructed Shihada to bring the student files to the DPR district office the following Monday. Before she left, Robinson gave Shihada a copy of the Board's rules and discussed the recordkeeping requirements imposed on a licensee. When Shihada did not appear at the DPR offices the following Monday, Robinson telephoned Shihada. He told her that a robbery had occurred at his office and that all files had been stolen. He also stated he did not report the robbery to local police. At hearing, Shihada denied telling this to Robinson and maintained instead that the files were simply missing from his unlocked office. Both explanations are rejected as not being credible. On May 24, 1988 Robinson returned to respondent's establishment to conduct a follow-up inspection. At that time, she reviewed the student records and found all files to be complete, although the school had only one full-time student. There was only one instructor on the premises, Angenorai Mathews, but the license of a second instructor, Earl Threats, was on the wall. At hearing Shihada contended that, although he purchased the school in 1987, he authorized Ena Salup to continue operating the school until January, 1988. According to Shihada, he did not open the school for business until that month but still had no students. He attributed this to a lack of financial aid for potential students. As to the records mailed to Tallahassee in November and December, 1987, Shihada explained that Salup's employees had mailed these, and that the students reflected thereon were actually Salup's students who were permitted by Shihada to finish their courses without charge. As to the lack of records on January 12, 1988, Shihada contended that (a) the records were missing from his office, and (b) in any event, he had no students in January and therefore there was no need to maintain any records. Shihada claimed also that the school had three licensed instructors in January, 1988. However, there were no records to corroborate this assertion. Finally, he denied that Robinson ever requested to see the student files on her January 12, 1988 visit. This contention is rejected as not being credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Rule 21F- 21.003(1), Florida Administrative Code (1987), and Subsection 477.029(1)(i), Florida Statutes (1987), and that all other charges be dismissed. It is further recommended respondent pay a $500 fine within 30 days of date of Final Order. DONE AND ORDERED this 1st day of August, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1988.
The Issue Whether Respondent violated Section 468.518(1)(j), Florida Statutes, as alleged in the Administrative Complaint, by treating or undertaking to treat human ailments by means other than by dietetics and nutrition practice, and Section 468.518(1)(g), Florida Statutes, by advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.
Findings Of Fact Respondent is and has been at all times material hereto a licensed nutrition counselor in the State of Florida, having been issued license number NC 0000143. Respondent's last known address is 1901 Blackwood Avenue, Winter Garden, Florida 32787-4601. At the time of her application, Respondent did present evidence of education and experience in reflexology, but was certified only as a Nutrition Counselor. espondent's license is involuntarily inactive. Even through inactive, Respondent is still subject to discipline by the Board of Medicine. Respondent possessed an active license as a Nutrition Counselor at the time of the complaint and investigation. At all times relevant, Respondent possessed a current Orange County, Florida, occupational license as a reflexologist. The practice of reflexology does not fall under the Dietetics and Nutritional Practice Act, but rather requires licensure under the Massage Practice Act (Chapter 480, Florida Statutes). On or about July 2, 1992, Respondent scheduled reflexology appointments for patients. On that date, Respondent was not a licensed massage therapist and had only a county occupational license to operate a business as a reflexologist. Respondent was not aware of the requirement that she obtain certification as a reflexologist through the Board of Massage. Respondent performed reflexology two or three times a month during the period 1991 through July 1992. Respondent caused the following business card to be printed: Opal Fannin, Licensed Reflexologist Nutritional Counselor, 1901 Blackwood Avenue, Winter Garden, Florida 32787. Respondent caused the following advertisement to appear in the 1991 Southern Bell Yellow Pages: REFLEXOLOGY NUTRITIONIST, Licensed Reflexologist and Nutritionist, Computerized Analysis and Nutritionist Balancing of Your Body, 1901 Blackwood Avenue, Winter Garden. At all times material hereto, Respondent failed to obtain licensure from the Board of Massage as a massage therapist.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Sections 468.518(1)(g) and (j), Florida Statutes. As punishment therefore, it is FURTHER RECOMMENDED: Respondent be issued a reprimand in which Respondent is ordered to cease and desist from engaging in any activity defined in Chapter 480, Florida Statutes, and Rule 21L-30.001, Florida Administrative Code, dealing with the practice of reflexology, until she obtains the proper licensure. Respondent shall not advertise, in any manner or medium, that she provides reflexology services until properly licensed to do same. Respondent shall pay a fine of $1,000.00 Respondent shall be permitted to voluntarily surrender her license as a Nutrition Counselor. DONE and ENTERED this 18th day of October 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 18th day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-805 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1-12. Rejected as a conclusion of law: paragraph 13. Respondent's proposed findings of fact. Respondent did not submit proposed findings of fact, but did submit a response to Petitioner's proposals. COPIES FURNISHED: William Frederick Whitson Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 William J. Sheaffer, Esquire 609 East Central Boulevard Orlando, Florida 32801 Dorothy Faircloth Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
