The Issue Did Respondent, Jianping Liu, L.M.T. (Ms. Liu), induce patients N.D. and J.H. to engage in sexual activity or engage in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment? Did Ms. Liu massage patient N.D. at a location not licensed as a massage establishment and without exemption? Did sexual misconduct occur in Respondent, Queen Spa, Inc.’s (Queen Spa), massage establishment? Did Queen Spa’s backpage.com and anyitem.org advertisements induce or attempt to induce, or engage or attempt to engage, clients in unlawful sexual misconduct? Did Queen Spa fail to include its license number in its backpage.com and anyitem.com advertisements?
Findings Of Fact Section 20.43 and chapters 456 and 464, Florida Statutes, charge the Department with licensing and regulation of massage therapy. At all times material to the allegations in the Administrative Complaint, Ms. Liu was a licensed massage therapist in the State of Florida. She holds license MA 68834. At all times material to the allegations in the Administrative Complaint, Queen Spa was a licensed massage therapy establishment in the State of Florida. It holds license MM 32567 registered at 10915 Bonita Beach Road, Unit 1121, Bonita Springs, Florida 34135, and license MM 32546 registered at 51 9th Street South, Naples, Florida 34102. Patient N.D. was a criminal investigation detective for the narcotics and vice division of Lee County Sheriff’s Office. On March 27, 2014, N.D., as part of an undercover investigation, scheduled an appointment for a massage at Ms. Liu’s home, 9951 Utah Street, Bonita Springs, Florida 34135. During the massage, Ms. Liu touched N.D.’s penis and asked if he wanted it massaged. N.D. offered an additional $50.00 tip and Ms. Liu began masturbating his penis. Ms. Liu was charged with prostitution. On April 30, 2014, Ms. Liu entered into a deferred prosecution agreement with the Lee County State Attorney’s Office. Ms. Liu’s home on Utah Street has a home occupational license issued by the city for a massage therapy administration office. It is not a licensed massage establishment. J.H. is a police officer in the crime suppression unit for the City of Naples, Florida. On May 9, 2014, the Naples Police Department began investigating Ms. Liu’s massage parlor. On July 24, 2014, J.H., as part of an undercover investigation, scheduled a massage appointment with Ms. Liu at the Queen Spa in Naples. After the massage, J.H. gave Ms. Liu a $20.00 tip and she gave him a separate business card. She explained this card was for “special customers” and had a different phone number than her regular card. J.H. scheduled a second massage for July 29, 2014. At some point near the end of that massage, J.H. asked if Ms. Liu offered special or extra services. Ms. Liu replied by asking if he was trouble or a cop. J.H. asked how much it would cost, but Ms. Liu did not take additional payment. Ms. Liu then began masturbating J.H.’s penis until he ejaculated. Ms. Liu contends that penis manipulation is part of a “full body” massage. But she testified during the hearing that this was an additional service to the full body massage. Further, she testified that she only conducted each “extra service,” because J.H. and N.D. requested it. This establishes that masturbation was not part of the massage. It was a sexual service. Testimony of the expert witness Jennifer Mason also proves this fact. Backpage.com is a classified advertising website that contains listings explicitly for prostitution. The adult entertainment section of backpage.com is linked to the majority of the Naples police investigations into prostitution. Ms. Liu posted ads for Queen Spa on backpage.com and anyitem.org. The backpage.com ad titled “erotic pleasure” was listed in the adult services section. The anyitem.org ad titled “erotic pleasure” was listed in the escort section. Ms. Liu contends the postings did not advertise sexual services and that the application on her phone mistranslated the word erotic from Mandarin to English. However, the character of backpage.com and posting the advertisements as adult services, rather than as massage services, supports the conclusion the postings advertised sexual activities. The backpage.com and anyitem.com advertisements did not include the license number of Queen Spa. Touching of the genitalia is not within the scope of a full body massage. Stimulation of the genital area is considered sexual misconduct. It is not part of an ethical massage. There is no therapeutic value to massaging a client’s penis. Sexual innuendo or stimulation is a problem in massage therapy. The industry has worked to remove it from the practice to create a safe and therapeutic environment. Training of massage therapists requires them to “decline, leave the room, terminate the massage” when sexual stimulation is requested by a patient. When discussing “extra services,” Ms. Liu told J.H. about her friend who got into trouble after performing certain acts and that the friend had lost her license; “no license, no job”. Ms. Liu engaged in sexual misconduct with J.H. just three months after she signed a deferred prosecution agreement disposing of the Lee County charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Health, Board of Massage Therapy, enter a final order: finding that Respondent, Jianping Liu, L.M.T., violated sections 480.0485 and 480.046(1)(o), Florida Statutes; revoking her license; requiring the payment of an administrative fines in the amount of $2,750.00; and awarding costs for the investigation and prosecution of this case to the Department. Based on the foregoing Findings of Fact and Conclusions of Law, it is also RECOMMENDED that Petitioner, Department of Health, Board of Massage Therapy, enter a final order: finding that Respondent, Queen Spa, Inc., violated sections 480.046(1)(e) and 480.0465, Florida Statutes, and Florida Administrative Code Rule 64B7-26.010; revoking its license; requiring the payment of an administrative fine in the amount of $4,000.00; and awarding costs for the investigation and prosecution of this case to the Department. DONE AND ENTERED this 2nd day of October, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 2nd day of October, 2015.
The Issue Whether Respondent's license to practice massage in the state of Florida should be disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Petitioner is the state agency charged with regulating the practice of massage in the state of Florida. At all times material to this proceeding, Respondent was a licensed massage therapist in the state of Florida, holding license number MA 0007149. At all times material to this proceeding, Frank Calta's Health Connection (Health Connection) was not licensed as a massage establishment in the state of Florida. At all times material to this proceeding, Respondent did hold a license for a massage establishment in the state of Florida. In October 1989, the Respondent filed a licensure application with Department of Professional Regulation, Board of Medicine, Dietetics and Nutrition Practice Council (Council) for licensure as a Nutritional Counselor. In answering a request for all work experience as a Nutritional Counselor in the application, Respondent listed the Health Connection as an employer from "11/87 to present" (October 1989) and as to the position held, listed "massage therapist". Respondent's answers to questions in the application were under oath wherein he declared under penalty of perjury that his statements were true and correct. As part of this application to the Council, Respondent submitted a notarized statement by Frank Calta of the Health Connection indicating that Respondent had worked as a massage therapist at the Health Connection from "September 5, 1987 to the present" (September 11, 1989). The testimony of both Respondent and Frank Calta at the hearing established that Respondent was not employed by the Health Connection as such in that he was not paid a salary by the Health Connection or that he worked regular hours for the Health Connection. However, this same testimony established that Respondent did perform massages for Frank Calta and members of the Health Connection in between sets of exercises and at the end of the exercises. These massages were conducted at either the Health Connection located at the 4626 Busch Boulevard, Tampa, Florida address or the Florida Avenue Tampa, Florida address during the period from September 5, 1987 through September 11, 1989. The Respondent was compensated for these massages by the individual members or by Frank Calta through the use of the Health Connection. Other than the individual members of the Health Connection, the Respondent did not solicit business from the "general public" as such. It was Respondent's contention that these massages were performed at sports events. However, there was no evidence that the individual members or Frank Calta were involved in any type of sport competition at the time of the massages by the Respondent, but only exercising to keep their bodies in shape. There was sufficient competent substantial evidence to establish facts to show that Respondent was practicing "massage" as that term is defined in Section 480.033(3), Florida Statutes, in an unlicensed "establishment" as that term is defined in Section 480.083(7), Florida Statutes, during the period from September 5, 1987 through September 11, 1989. There was no evidence presented to show that Respondent's license as a massage therapist had ever been disciplined or that any disciplinary action, other than the instant case, had been taken against the Respondent.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, and the penalty guidelines set out in Rule 21L-30.002, Florida Administrative Code, it is, accordingly, RECOMMENDED: That the Board enter a Final Order finding Respondent guilty of violating Section 480.036(1)(n), Florida Statutes, and for that violation issue the Respondent a letter of reprimand and assess an administrative fine of $250.00. DONE and ENTERED this 3rd day of February, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 3rd day of February, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-2613 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner 1. - 4. Adopted in substance as modified in the Recommended Order in Findings of Fact 1, 2, 3, and 4, respectively. 5. - 7. Adopted in substance as modified in the Recommended Order in Finding of Fact 5. 8. - 9. Adopted in substance as modified in the Recommended Order in Finding of Fact 6. Neither relevant nor material to this proceeding other than as to Respondent's credibility as a witness. - 13. Adopted in substance as modified in the Recommended Order in Finding of Fact 7 and 9. 14. Rejected as not supported by competent substantial evidence in the record but in any event, is neither material nor relevant to this proceeding other than as to the extent of the disciplinary action taken. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Respondent has submitted what is titled Proposed Finding of Facts. However, it more of a conclusion of law or legal argument than finding of fact. As to the facts set out in paragraph 5 (unnumbered) see Finding of Fact 7. COPIES FURNISHED: Lois B. Lepp, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Aaron Benjamin 8319 Cross Timbers Drive East Jacksonville, FL 32244 Anna Polk, Executive Director Board of Massage 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 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 Whether the Respondent, a licensed massage therapist, should be disciplined under section 480.046(1)(p), Florida Statutes (2016),1/ for sexual misconduct in the practice of massage therapy; and, if so, the appropriate discipline.
Findings Of Fact The Petitioner licenses and regulates the practice of massage therapy in Florida, including discipline of licensees who are in violation of the governing statutes and rules. The Respondent holds massage therapy license MA 80154. In March 2017, the Respondent was employed as a massage therapist at Hand and Stone Massage and Facial Spa in Brandon, Florida. On March 29, 2017, Y.B., went to Hand and Stone to use a gift card for a free massage that had been given to him by his fiancée. The Respondent approached and introduced himself to Y.B., and asked if he could help him. Y.B. told him why he was there, and the Respondent led him back to a therapy room. In the therapy room, Y.B. asked the Respondent to focus on his upper body, arms, and fingers. The Respondent had him undress and lay down on the massage table face down, covered only by a sheet. The massage proceeded without incident at first. Then, the Respondent asked for permission to massage Y.B.’s legs. Y.B. granted permission. As the massage proceeded, Y.B. closed his eyes and relaxed. When the Respondent finished massaging the back of Y.B.’s legs, he asked Y.B. to roll over onto his back. As the massage proceeded, Y.B. again closed his eyes and relaxed. After massaging Y.B.’s upper body, arms, and fingers, the Respondent asked, “May I?” Thinking the Respondent was asking if he had permission to massage the front of his legs, Y.B. said, “yes, do what you have to do.” Before Y.B. knew what was happening, the Respondent grasped Y.B.’s penis in his hand and put it in his mouth. Startled and shocked, Y.B. opened his eyes, sat up, and made the Respondent stop, saying “Whoa, whoa, whoa, what do you think you’re doing? I’m not gay.” At that point, the Respondent stopped and brought Y.B. water and a towel. What the Respondent did was very upsetting to Y.B. He was so upset and angry that he was distracted while being checked out by another employee of Hand and Stone. He unwittingly presented his gift card and answered questions. He discovered later that he not only had paid for the massage but also had given the Respondent a tip. Y.B. continued to be bothered by what happened and returned to Hand and Stone the next day to confront the Respondent and have him explain the reason for what he had done the day before. During this confrontation, the Respondent admitted to his misconduct and tried to apologize, saying “I thought we had a connection.” Y.B. continues to be affected by what the Respondent did to him. He received counseling through his employer. He still is less affectionate than he used to be, even towards his family. To this day, he still becomes anxious when reminded of the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding the Respondent guilty as charged; revoking his license; and fining him $2,500. DONE AND ENTERED this 23rd day of January, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2018.
The Issue The issue in this case is whether Respondent, Hae Suk Bornholdt, committed the offense alleged in an Amended Administrative Complaint issued June 12, 2000, and, if so, what penalty should be imposed upon Respondent.
Findings Of Fact Petitioner, the Department of Health, Board of Massage Therapy (hereinafter referred to as the "Board"), is the state agency charged with the authority and duty to regulate the practice of massage therapy in the State of Florida. Chapters 20, 456, and 480, Florida Statutes. Respondent, Hae Suk Bornholdt, applied for licensure as a massage therapist in the State of Florida on December 1, 1999. Ms. Bornholdt's application for licensure was approved and she was licensed as a massage therapist in the State of Florida effective December 28, 1999. Respondent's license number is MA 30419. At all times relevant to this proceeding, Ms. Bornholdt was employed by Fame Limited, Inc. (hereinafter referred to as "Fame"). Fame is located at 4799 North Federal Highway, Boca Raton, Florida. Fame is a massage establishment. On December 2, 1999, an undercover policy investigation was begun of Fame in response to anonymous complaints of sexual activities between massage therapists and male clients of Fame. Robert F. Flechus, a detective with the Boca Raton Police Department, entered Fame posing as a client. Detective Flechus paid $80 for a massage. He was greeted by Ms. Bornholdt, who identified herself as "Tina." Ms. Bornholdt led Detective Flechus to a locker room where he undressed, left his clothes in a locker, and wrapped a towel around himself. Detective Flechus took a sauna and was then led by Ms. Bornholdt to a shower room where he showered. Ms. Bornholdt washed Detective Flechus, including his buttocks, with a sponge. After showering, Ms. Bornholdt led Detective Flechus into a room where she gave him a massage. During the massage, Ms. Bornholdt suggested that Detective Flechus masturbate while she massaged his stomach. When he refused, Ms. Bornholdt took Detective Flechus' hand and attempted to place it on his penis. Detective Flechus immediately pulled his hand away. Ms. Bornholdt then removed the towel that was partially covering Detective Flechus' genitalia and began to stroke his penis. Detective Flechus stopped Ms. Bornholdt and got up off the massage table. Ms. Bornholdt failed to properly drape Detective Flechus when she allowed his penis to be exposed to her during the shower and while he was on the massage table. Ms. Bornholdt was not licensed as a massage therapist on December 2, 1999. Ms. Bornholdt acted as a massage therapist with Detective Flechus and other clients prior to receiving her license on December 28, 1999. Detective Flechus' testimony in this matter was clear, consistent, and credible. Ms. Bornholdt's testimony on the other hand was inconsistent, unconvincing, and not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Massage Therapy finding that Hae Suk Bornholdt committed the offense alleged in the Amended Administrative Complaint issued on June 12, 2000; it is further RECOMMENDED that the Board of Massage revoke Ms. Bornholdt's license to practice massage therapy and assess the costs of investigating and prosecuting this case. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2000. COPIES FURNISHED: Dennis G. King, Esquire Rudolph C. Campbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Mail Stop 39 Tallahassee, Florida 32308 Lawrence K. Fagan, Esquire LaValle, Brown, Ronan & Soff 750 South Dixie Highway Boca Raton, Florida 33432 William H. Buckhalt, Executive Director Board of Massage Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue The issues to be resolved are whether Respondent committed the offenses charged in the Administrative Complaints and, if so, what penalties should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of massage therapy practice pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. Respondent, Terrence Grywinski, is a licensed massage therapist in the State of Florida and holds license number MA 6049. Respondent’s mailing address is 6419 Meandering Way, Lakewood Ranch, Florida 34202. Respondent, Terrence Grywinski Massage, is licensed as a massage establishment in the State of Florida and holds license number MM 18059. The establishment’s physical location is 1188 Tamiami Trail, Sarasota, Florida 34236, and this location is the location where all appointments relevant to the facts in this case were scheduled and conducted. Respondent has been licensed to practice massage therapy in Florida since on or about July 9, 1985. The establishment was licensed as a massage establishment on or about March 20, 2006. Respondent is the sole owner and sole employee of the establishment, which conducts business as Advanced Craniosacral Therapy. No evidence was presented to indicate that either license has been previously disciplined by the Board. As a licensed massage therapist, Respondent is subject to the state of Florida laws and rules governing licensed massage therapists, and the establishment that he owns is likewise subject to the laws and rules governing massage establishments. Respondent does not practice traditional massage therapy and has not done so since approximately 1995. He was trained in a modality called craniosacral therapy (CST) in 1995, and has performed that modality exclusively since that time. According to Respondent, trauma of any kind, whether emotional or physical, causes a tremendous force of energy to come into the body, and the body tries to protect itself by “shortening” and isolating the energy. This isolation of the energy created by trauma is what creates areas of tension within the body. The theory behind CST is that the body will correct itself when it feels “safe.” CST works with the fascia connective tissue that attaches muscles to the bone, and encases a person’s organs, brain, and spinal cord. CST uses very gentle holds to create a safe space for the body, which will help the body slip into a corrective reorganizational healing mode. When a person undergoes CST, the fascia will start to release and the person will feel a “letting go” or release in the tissue. CST does not involve manipulation of the tissue, but rather, a series of holds that may last in any one place for five to ten minutes. The amount of pressure applied is “whatever pressure the body tells you it needs,” but generally no more than five grams of pressure. According to Faith Buhler, who testified by deposition as an expert for the Department, when there is a release, there is a different pulse in the body. Respondent trained in CST through the Upledger Institute, which was established by John Upledger. Respondent has received extensive continuing education in CST and the majority of his statutorily required continuing education deals with the performance of this modality. Typically, Respondent’s first-time clients make an appointment for CST and are given a code to enter the second floor of the building where Respondent’s office is located. He greets patients in a common waiting room and takes them to the one-room office where therapy takes place. The office contains two chairs, a massage table, a small side table where a “cupping” machine is stored, and a bookshelf. New clients are asked to fill out an intake sheet that requests some basic information about the client and his or her reason for seeking CST. Respondent uses the information on the intake sheet to speak with the client about his or her needs, and places it in a manila folder that he uses to take notes. The notes are on the manila folder itself, as opposed to paper contained in the folder. If additional space is needed for subsequent visits, he simply gets another manila folder and, hopefully, keeps the folders about a particular client together. Respondent admits he is not very organized, and maintaining his files is not his specialty. Most clients have three to six sessions with Respondent, so it is conceivable that for most clients, a single folder would be sufficient. After Respondent speaks with the client, the client lies down on a table during the therapy, fully clothed, facing up. Typically, Respondent is the only person in the room during CST sessions, and the sessions last approximately an hour and a half. He will assess a client by lifting each leg to compare length and will rotate the legs to assess range of motion through the hips. After assessing a client, Respondent goes through a series of gentle holds, generally using the same protocol each time, with some variation depending on the need of the client. He testified that he will tell clients what he is going to do and where he is going to place his hands, and advises clients that if at any time they feel uncomfortable with what he is doing or where he is placing his hands, the client should feel free to tell him. Respondent will review the notes he made from prior visits at the beginning of each session and will discuss any changes that have taken place since the last session. Many times, the notes that Respondent keeps will include sensitive personal information related by a client if that information may reveal a source of trauma. During the time period relevant to these proceedings, Respondent advertised his practice in an alternative medicine magazine called “Natural Awakenings.” M.M. is the managing editor of Natural Awakenings. As part of her job, she writes articles and conducts interviews of professionals who advertise in the magazine. M.M.’s supervisor, Janet Lindsay, assigned her the task of interviewing and writing an article about Respondent and his practice. M.M. was told that Respondent practiced CST. On May 1, 2017, M.M. emailed Respondent and told him that Natural Awakenings wanted to feature him in an article for the June issue, and sent him a series of questions to answer, along with her telephone number. Respondent did not immediately respond, so on May 8, 2017, M.M. emailed him again to make sure he received the first email. Respondent called M.M. the next day and suggested that M.M. come in and receive a CST treatment at no charge, so that she would have a better understanding of the modality when writing the article. M.M. accepted the offer and made an appointment to see Respondent on May 12, 2017. During this first session, M.M. interviewed Respondent for the article, filled out an intake sheet, and provided a medical history. Respondent asked her some questions, then directed her to remove her shoes and lie on the table, fully clothed. Respondent explained what he was doing and where he would place his hands as he performed the various holds. M.M.’s description of the first session is consistent with Respondent’s description of how he conducts all CST sessions. There is no allegation that any improper or unprofessional conduct took place at the May 12, 2017, session. At the end of the session, Respondent offered to continue providing free sessions to M.M. in exchange for M.M. writing additional articles for the magazine about his practice. M.M. agreed to the arrangement. She testified that these kinds of arrangements are not the norm, but that it was not the first time it had occurred. M.M. testified that she felt better after having the CST session, in that her chronic pain was better, her body less tense, and her breathing easier, especially when running. These benefits, however, were temporary. M.M. wrote an article about the first session, which she provided to Respondent for review and approval before it was published. Respondent appreciated the article, felt that it was well written, and benefited his practice. On May 18, 2017, M.M. provided the final copy of the article for publishing. There was no indication from the evidence presented that the parties’ interaction at the initial visit or the exchanges regarding the article in the week following the visit were anything but professional. M.M. saw Respondent for additional sessions on June 9, 2017; September 26, 2017; November 3, 2017; and November 30, 2017. M.M. did not find anything about these visits to be unprofessional or out of the ordinary, with the exception of the last visit on November 30, 2017. M.M. and Respondent’s accounts of the November 30, 2017, visit are not reconcilable. Respondent testified that the visit was much like previous visits, while M.M. contends the visit involved unwanted and inappropriate touching and inappropriate commentary about her body. Leading up to the final visit, M.M. testified that Respondent’s behavior seemed more familiar and personal than the behavior of a health care provider. She claimed that he started calling and emailing her late at night, and referred to her as his “muse.” She specifically indicated that one call came on a weekend, and she chose not to answer it because she was with her sister and did not want to interject work issues into her weekend. Phone records from the providers for both M.M. and Respondent’s phone numbers reveal only one call made from Respondent to M.M., and that call took place May 9, 2017, before her first appointment with him. The Department did not produce any of the emails M.M. claimed that Respondent made to her. Respondent produced most, but not all, of the emails between the two. He testified that he provided to the Department all of the emails he found at the time he responded to the complaint, and that any omissions were unintentional. It is noted that the subpoena issued to Respondent requests patient records, but does not request emails. The request for production issued by the Department to Respondent, which is on the docket for this case, does not specifically request emails, but instead requests documents to be used at hearing. None of the emails in evidence contain any improper statements. All of them involve either questions about Respondent’s practice, or review of the articles that M.M. wrote about his practice.2 2 During hearing, the Department showed Respondent a copy of an email he provided in response to the Department’s request for production. The email appears, from the portions read at hearing, to involve an article that Respondent wrote about his practice. The Department did not offer the email into evidence, but asked Respondent to read where the email apparently stated, “both of you are my angels.” Respondent responded by saying, “Yes, I said that, but I never called her an angel in any session. I was complimentary. Both Lindsay – or Janet Lindsay and Ms. M.M. were very helpful in my professional life, and I see nothing wrong with referring them to angels who are helping me in my profession. And if I said I never called anybody an angel, I couldn’t remember that email until you brought it up now.” Phone records between M.M. and Respondent do indicate that Respondent contacted M.M. either by email or by text, late on some evenings. However, up until March of 2018, well after the final appointment, these contacts were in response to emails sent by M.M. to Respondent. The telephone records reference emails sent by Respondent to M.M. on January 17 and 23, 2018, a few months after M.M.’s last visit. However, neither Respondent nor M.M. were asked about these emails by date, and the record contains no information regarding their contents. The weekend before the November 30, 2017, visit was Thanksgiving weekend, and M.M. and her husband had a lengthy car ride returning from Atlanta where they spent Thanksgiving. For whatever reason, M.M. had a panic attack during the car ride, and remained especially tense at her appointment with Respondent. She recalled that the discussion portion of the visit seemed shorter, and that Respondent used a pendulum to detect energy before commencing with the CST.3 He noticed that her chest area was more closed then usual and asked her if there was some reason why she had tightness there. M.M. testified that she explained to Respondent that she had always had body image issues, specifically with her chest. She stated that Respondent offered to address the tension with a modality called “cupping,” which would also make her breasts look “perkier.” Cupping is a modality that Respondent acknowledges using on occasion. He has cupping equipment that has a variety of cup sizes and is The Department also contends in its Proposed Recommended Order that “Grywinski has no explanation for why he did not provide the January 2018 emails.” However, the record does not reflect that the Department ever specifically asked Mr. Grywinski a question about those emails, either at hearing or in his deposition, so as to require an explanation about them. 3 The use of the pendulum is a technique that Respondent developed himself. It supposedly detects energy in the body, or an absence thereof, and he also used this technique in a prior session. made so that one can use one or two cups at a time, although he generally uses only one. The machine has tubing that attaches to both the machine and the cup(s), and the amount of pressure to create suction can be changed using a dial on the machine. M.M. testified that she was familiar with the concept of cupping, both from research she had performed for articles, and from the then-recent 2016 Olympics where there were stories about Michael Phelps using the technique. She agreed to the cupping, and she testified that Respondent directed her to completely disrobe. According to her testimony, Respondent remained in the room while she disrobed, and did not offer her a drape of any kind. There was no testimony about what Respondent was doing while M.M. disrobed: i.e., whether he turned his back, set up the equipment, or watched her. M.M. testified that she did as Respondent asked because she had seen a number of health care providers for a variety of reasons all of her life, and trusted them. M.M. stated that Respondent instructed her to lay face up on the table and rolled a cart with the cupping machine over to the table.4 According to her, Respondent explained that while “one breast was being suctioned, he was performing what he called lymphatic drainage on the other breast, which basically involved finger motions on my skin that were kind of applied in a – in a rhythmic upward motion with both hands. And the idea behind it was to stimulate blood flow and circulation in the lymph nodes of that region.” M.M. stated that after the cupping of the first breast was completed, Respondent moved the cup to the other breast and duplicated the process. He then explained that he would continue to perform lymphatic drainage on the remainder of her body, and began working his way down her body, performing the same circular motions, including her stomach, hips, and pelvis; down to her pubic area and groin, and eventually her genital area, 4 Respondent testified that there is not a rolling cart in the room, because the room is too small to accommodate one. According to him, the cupping machine sits on the table against the wall, but has lengthy tubing. which she testified could have been either accidental or purposeful contact. M.M. testified that he grazed her buttocks and called them “buns of steel,” as well as referring to himself as a “horny old man.” M.M. also testified that while performing the lymphatic drainage, he touched her genitals with his fingertips. Following the lymphatic drainage, Respondent told M.M. that the session was over, and she could dress. M.M. stated that he asked not to include the last portion of the visit in her article because he was afraid of losing his license. She redressed, with Respondent remaining in the room, and after doing so, they exchanged pleasantries and she left the office. Respondent emphatically denies M.M.’s allegations. He acknowledges that he performed cupping on M.M but denied that he performed it on her breasts. According to Respondent, he performed cupping on her abdomen to relieve constipation. His records for November 30 state in part, “sm + lg. intestines & ileocecal inflamed. – complained about constipation -- cup abdomen?” When M.M. was asked whether Respondent performed cupping of her abdomen for constipation, she could not remember if she mentioned constipation to Respondent, but it was possible, and did not remember if he cupped her abdomen. Respondent testified that he explained cupping to her and told her both about uses for cupping in China, which include cupping of the breast and of the face, but also explained it is used for different purposes in the United States. In his written response to the allegations that he provided to the Department during the investigation, he stated: Because of her interest in health, (she has her own health blog) and a possible future article, I demonstrated the cupping process for her and went into a lot of detail on how it worked and what it was used for in China and the protocols that cupping I had been trained in through Ace Cupping. With cupping, the therapist is able to bring new blood and enhance circulation and lymph flow and drainage in congested and tight muscles or area of the body. * * * I also shared that the Chinese used the machine to cup women’s breasts and they claimed that if a woman breast was cupped everyday for 30 days, it would enhance circulation and lymphatic drainage and that would bring about healthier breasts or uplift them. In no way was I suggesting that we cup her breasts and I did not do so. Respondent also indicated in the investigative response that M.M. seemed uncomfortable with the cupping procedure and that he cut it short. Although his response stated that she seemed uncomfortable with the cupping, it also stated that she did not state that she was uncomfortable with any procedure he employed throughout all of the craniosacral sessions, including the November 30 session. Respondent testified that he did not ask her to undress, but rather, asked her to raise her shirt to the bottom of her ribcage, and to lower her shorts to the top of her hips, so that only that strip of skin was exposed. He placed oil on her skin, used a cup approximately two inches in diameter, and moved the cup in the same direction as the digestive system in a circular motion. M.M., by contrast, testified that no oil was used. Respondent did not perform lymphatic drainage: while he is aware of the technique, he has not been trained in it. A review of his continuing education records do not reveal any classes in lymphatic drainage. Respondent further testified that only a small portion of skin was showing while he performed the cupping, and Respondent did not provide M.M. a drape (although it is unclear that one would be necessary), and did not leave the room while she readjusted her clothing once the procedure was finished. Respondent also denies that he asked M.M. not to include the final portion of the visit in her article because he was afraid he would lose his license. At the time of the visit, there was no article in process. M.M. had already produced two articles about Respondent’s practice, and although M.M. believed she wrote three, no third article was produced, and there are no emails or texts addressing a third article, like there were for the first and second ones M.M. wrote. M.M. claimed that the third article was supposed to be a question/answer column with Respondent and a local chiropractor, Eric Winder, who Respondent says he does not know. It does not appear from the investigative report that Eric Winder was interviewed, and he was not called as a witness at hearing. Respondent likewise denies telling M.M. that she has “buns of steel,” or referring to himself as a “horny old man.” There was no further contact between M.M. and Respondent for several months. The phone logs for AT&T indicate that there were three emails sent by Respondent to M.M. in January, but as noted previously, those emails are not in evidence. On March 11, 2018, Respondent reached out to M.M. by email, asking for permission to use an edited version of one of her articles in some advertising for his practice. M.M. responded by saying, “[y]es that’s fine. Feel free to use the edited version.” On April 14, 2018, Respondent emailed M.M. again, and stated, Dear [M.M.] Hope all is well with you. I want to thank you for allowing me to use your articles in my ads. Very effective and have brought me a number of new clients. I would like to send you a check for $200, a $100 each for the 2 articles in appreciation. Could you send me your address so I can send you the check. As my practice slows down for the summer, I should be able to get you back in for more sessions. With great appreciation, Terry To which M.M. replied, That’s kind of you to offer, but not necessary but appreciated. If you feel compelled to send a check (again, not necessary), you can mail it to [M.M.’s home address]. However, I will tell you that I’m unable to come in for sessions, as I recently moved to the other side of town, and the drive is no longer conducive with my weekly schedule. But you are free to continue to use the articles I’ve written about your practice in any capacity you choose. M.M. testified that she told a friend about the November 30 session about a week after it happened, and it was her friend’s reaction that alerted her that what happened was not appropriate. Notes from her therapist indicate that she stated that she did not tell anyone for several months.5 She did not tell her husband for approximately four months after the incident. Neither her husband nor the friend that M.M. stated she told about the incident testified at hearing. There are other date discrepancies in the therapist’s notes as compared to other events in this case. For example, the September 5, 2019, entry refers to hearing from the Sarasota Police Department regarding the incident, which is, as found below, prior to the time she even reported the incident to the Department of Health, who in turn contacted law enforcement. It may be that even if the dates for the sessions in the notes are incorrect, the inconsistencies are enough to raise concerns. This is especially so given that the subpoena sent to the therapist requests ALL patient records, and the ones provided only covered the time period from August 8, 5 M.M.’s therapist’s records were subpoenaed by the Department. Statements made for the purpose of diagnosis and treatment by a person seeking the diagnosis or treatment which describe medical history, past or present symptoms, pains, sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment, are an exception to the hearsay rule. § 90.803(4), Fla. Stat. While the statements attributed to M.M. in her therapists’ notes may not be hearsay, they are not considered in this case for the truth of the matter asserted, but simply to show that there are differing statements regarding when M.M. shared her story with others. 2019, through September 10, 2019, a period of time that is much shorter than M.M. testified that she saw her therapist.6 In April 2018, M.M. emailed her employer and told her about the incident. In the emails, she states in part that he “ended our session by asking me to omit this portion of the treatment from my article, as he could lose his license. I did not report the incident, and I wrote the article as he requested, highlighting the benefits of his practice.” As noted above, there was no article after the November 30 session. She also wrote in a follow-up email that “Over the next couple of months, he tried calling/texting me in a friendly way that suggested he viewed us as more than professional acquaintances.” The telephone records do not support M.M.’s statement. M.M.’s employer responded by terminating M.M.’s advertising with Natural Awakenings and providing M.M. with the contact information for an attorney. M.M. filed her complaint with the Department on September 11, 2019, nearly two years after the incident. She did not file a complaint with law enforcement, but upon receiving her complaint, the Department investigator notified the Sarasota Police Department on September 26, 2019. Ultimately, no criminal charges were filed, but the decision of the State Attorney’s Office has no bearing on whether or not there is a basis for discipline in this case. Both M.M. and Respondent had some inconsistencies in their stories. Respondent’s, in large part, appear to be based on the fact that his records for the sessions he had with M.M. were not together, and he did not find the records for the earlier session (i.e., his first manila folder) until after his deposition. As noted previously, clients typically have three to six sessions, so it was not unreasonable for Respondent to assume that he only had one folder for M.M., especially given that the records were requested two years after his 6 It may be that notes related to couple’s counseling were not provided because those notes were not just about M.M. but M.M. and her husband. That does not, however, address the inconsistencies in the timeframes reflected in the notes. last session with M.M. His counsel turned those records over to the Department, but not when requested in discovery, and some of those records were not admitted as a result.7 The Department takes issue with a statement Respondent made about M.M. telling him that she was sexually assaulted in college, stating that there is “no mention of sexual assault, or assault of any kind, in either set of Patient M.M.’s treatment notes.” (Petitioner’s Proposed Recommended Order at 15, ¶ 111). However, given that Petitioner successfully objected to some of Respondent’s records regarding M.M. being admitted into evidence, what is in evidence does not reflect all of the records regarding M.M.’s sessions with Respondent. There can be no finding that the records contain no mention of sexual assault when, as the result of Petitioner’s objections, not all of Respondent’s records are in evidence. The Department also finds Respondent’s records to be untrustworthy because their physical appearance is somewhat different. As noted previously, Respondent writes his notes on manila folders and writes from edge to edge. He testified that when he tried to copy the manila folders for the Department, some of the notes were cut off, so he rewrote what was on the notes and provided them to the Department. There are some minor differences in the notes and in a few places, he wrote the dates as 2019 as opposed to 2017. Given that the records were requested in 2019, such an error is not significant. While the copies of the records are not exact, the differences are extremely minor. Furthermore, the Department points to no statute or rule that requires a massage therapist to have patient records at all, much less one that dictates a format to which they must conform. Most importantly, the Department does not point to any discrepancy that 7 The Department also appears to question Respondent’s and Respondent’s counsel’s good faith regarding these records, stating that Respondent testified that he found the records two to three weeks before the hearing, and yet counsel for Respondent was able to use these records in questioning M.M. in her deposition June 22, 2021. A specific date for when Respondent gave the records to his attorney is not in the record. materially affects Respondent’s account of what happened on November 30, 2017. There are other concerns with M.M.’s account of the incident in addition to those issues listed with respect to the telephone records, discrepancies in dates, and references to an article that was not written. For example, M.M. testified that she has had a great deal of medical procedures performed on her, and she is accustomed to doing what medical professionals ask of her. Kacee Homer and Lisa Caller are character witnesses who testified on behalf of Respondent. Both are healthcare professionals who testified that when a patient is asked to disrobe, they generally do. Ms. Homer, a nurse, said that generally when a patient is asked to disrobe, she leaves the room while the patient is undressing, and if possible, the patient is draped. Here, M.M. testified that Respondent asked her to disrobe, and stood there while she did so. It seems odd that M.M., who writes articles about healthcare, and by her own admission has had several medical procedures in her life and is fairly knowledgeable regarding the medical field, would not at least ask for a drape, or wait for Respondent to leave the room before undressing. M.M.’s description of the cupping and lymphatic drainage also raises more questions than it answers. She testified that while the cup was placed on one breast, Respondent massaged the other with both hands. That means the cup had to remain in place based solely on the suction or pressure provided by the cupping machine. It seems that it would be difficult for the cupping machine to provide enough suction for the cup to remain in place on her breast without causing discomfort or pain, and possibly bruising, but there was no testimony that she found the experience physically painful or it left any discernible marks. Finally, the undersigned is troubled that M.M. would willingly give her home address to a man that she claimed sexually assaulted her. It does not seem plausible that she would so easily provide this type of information to Respondent when it could enable him to make further contact with her. After careful consideration of all of the evidence presented, the undersigned finds that there is not clear and convincing evidence to support a finding that Respondent asked M.M. to disrobe in front of him without providing a drape. There is not clear and convincing evidence that Respondent massaged M.M.’s breasts, buttocks, and groin area, and touched her vagina with his fingertips, all without a valid medical reason. Likewise, there is not clear and convincing evidence that Respondent told M.M. that she had “buns of steel” or that he was a “horny old man.” The evidence failed to establish that Respondent’s conduct toward M.M. constituted sexual activity outside the scope of practice, or an attempt to engage or induce M.M. to engage in such activity.
Conclusions For Petitioner: Dannie L. Hart, Esquire Andrew James Pietrylo, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 For Respondent: Lance O. Leider, Esquire Amanda I. Forbes, Esquire The Health Law Firm Suite 1000 1101 Douglas Avenue Altamonte Springs, Florida 32714
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaints against Terrence Grywinksi, L.M.T., and Terrence Grywinski Massage, be dismissed. DONE AND ENTERED this 5th day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LISA SHEARER NELSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2021. Dannie L. Hart, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Amanda I. Forbes, Esquire The Health Law Firm Suite 1000 1101 Douglas Avenue Altamonte Springs, Florida 32714 Kama Monroe, JD, Executive Director Board of Massage Therapy Department of Health Bin C-06 4052 Bald Cypress Way Tallahassee, Florida 32399-3257 Lance O. Leider, Esquire The Health Law Firm Suite 1000 1101 Douglas Avenue Altamonte Springs, Florida 32714 Andrew James Pietrylo, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Louise St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399
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 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.
