The Issue Whether Respondent Sabina Dahlberg's Massage Therapy violated Sections 480.46(1)(k) and 480.043(7), Florida Statutes (1993), whether Respondent Sabina Dahlberg violated Section 480.046(1)(k), Florida Statutes (1993), and if so, what penalties should be imposed.
Findings Of Fact Respondent Sabina Dahlberg (Dahlberg) holds a massage therapy license from the state of Florida, license number, MA0011128. Dahlberg owns Sabina Dahlberg’s Massage Therapy which holds a massage establishment license from the state of Florida, license number MM004301. In March, 1993, Dahlberg opened a vitamin store, Powerhouse Vitamins, at 732 S. Federal Highway, Dania, Florida. At that time Dahlberg was involved in professional body building and did not provide massage therapy services. Subsequent to the opening of the vitamin store, Dahlberg began to give massages in the rear of the building. There is a neon sign in the front window of the store which says "massages." Dahlberg filed an application with the Department of Business and Professional Regulation (Department) to obtain the necessary license for a massage therapy establishment. The license was issued to Sabina Dahlberg’s Massage Therapy located at the 732 South Federal Highway address. Between August 1993 and March 1994, Dahlberg employed licensed massage therapists Cynthia Williams and Dorothy Martin. Donna Booras, who was then under the apprenticeship of Dorothy Martin, also worked at Dahlberg’s establishment. In August, 1993, Ruth "Debbie" Cerminaro was also working at the establishment known as Powerhouse Vitamins. Ms. Cerminaro had a cosmetology license and was hired to perform facials, body wraps, and body waxing. Ms. Cerminaro did not have a license to give massages. Sometimes Dahlberg’s mother, Ursula Metzler, would help out at the store by answering the telephones and selling vitamins. At one time Ms. Metzler was considering becoming an apprentice in order to obtain a license to practice massage. Dahlberg testified that her mother never performed massages; however the pages from the store’s appointment book indicate that on March 3, 1994, Ursula had two appointments. In each massage room there is a sign which tells the customers, "Don’t even ask" for illegitimate acts. A customer could get a half-hour massage for $25 or a full hour massage for $45. The half-hour massage consisted of massaging the back and the back of the legs. The hour massage consisted of massaging the back, the front and back of the legs, the arms, the chest, and the colon. It was not unusual for customers to leave tips. In 1993 and 1994, Dahlberg had an arrangement with Dr. and Mrs. Spingarn to give the Spingarn’s massage therapy. Mrs. Spingarn had been involved in an accident and was receiving massage therapy as well as pool therapy from Dahlberg. For the most part, Mrs. Spingarn’s therapy was paid through workers’ compensation insurance. Dr. Spingarn was a dentist and at times Dahlberg would provide massage therapy to Dr. Spingarn in exchange for dental services. Dr. Spingarn would be given the massages at his office, the Powerhouse Vitamins’ location, or at his home. Because of the severity of her injuries, Mrs. Spingarn usually received her massage therapy at home, but she had also been given therapy at her husband’s office. When she received therapy at home, Dahlberg would massage her for about one and one-half hours and provide therapy in the swimming pool for about an hour. The home sessions would usually begin in the morning around ten or eleven o’clock and go into the afternoon. Around August 2, 1993, the Broward County Sheriff’s office received information alleging that Dahlberg and other employees at her business had engaged in sexual activity with customers at the business. Detectives Chris Percival (Percival) and Joseph Ventura (Ventura) of the Broward County Sheriff’s Office were assigned to conduct an undercover operation to determine if prostitution was occurring at Dahlberg’s place of business. On August 7, 1993, Ventura went to Powerhouse Vitamins and requested a massage. He was shown to a room in the back of the store, where he removed his clothes and placed a towel around his waist. A female named Debbie entered the massage room and told him to lay on his belly on the massage table. Debbie put lotion on her hands and began to massage Ventura’s back. Halfway through the massage, Ventura asked Debbie if she worked for tips and what could he get for a tip. Debbie wanted to know what he wanted, and he told her that he wanted to be taken care of. She told him to roll over on his back. Debbie wanted to know if Ventura was a cop and he assured her that he was not. Debbie began to rub lotion on his upper leg area. She removed the towel, poured lotion on his groin area, and began to masturbate Ventura. Ventura told her to stop that he was nervous. Debbie stopped and then resumed the back massage. A few minutes later the massage ended. Ventura paid her for the massage, including a tip, and left. On August 10, 1993, Detective Chris Percival (Percival) went to Powerhouse Vitamins for an appointment with Dahlberg for a massage at 4:30 p.m. During the massage, Percival told Dahlberg that he was impotent. About twenty to twenty-five minutes into the massage, Dahlberg applied lotion to her hands and began to masturbate Percival. Percival stopped her and told her that he thought that she had taken care of his problem. He paid her for the massage and included a tip. On August 10, 1993, Dahlberg gave a massage to Pat Spingarn at Mrs. Spingarn’s home. The message session started at ten o’clock and lasted for about one and one-half hours. They broke for lunch and then did pool therapy for an hour. The distance from Mrs. Spingarn’s home to Dahlberg’s establishment is approximately a 45 minute drive. There was sufficient time for Dahlberg to provide therapy to Mrs. Spingarn and return to her business establishment to give a massage to Percival beginning at 4:30 P.M. On the afternoon of March 2, 1994, Percival went to Powerhouse Vitamins for a massage with Sabina at 4:30. Sabina remembered him from his previous visit. Percival was shown to a room in the rear of the building where he disrobed. Sabina came in and began to give him a massage. About half way through the massage, Sabina told Percival to roll over face up. Sabina put a lubricant on her hands and massaged his penis. Once Percival achieved an erection, Sabina stopped. Percival paid her and left. Respondent’s Exhibit Three is a page from the business’s appointment book for March 2, 1994. There is a notation that Sabina was not working that afternoon; however, the notation was written over an erasure that appeared to be an appointment from 4:30 to 5:30 p.m.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent Sabina Dahlberg’s Massage Therapy is guilty of the violations set forth in Counts I and II of the Administrative Complaint in DOAH Case No. 94-01866 and revoking the massage establishment license of Sabina Dahlberg’s Massage Therapy and that a Final Order be entered finding that Sabina Dahlberg is guilty of the violation set forth in Count I of the Administrative Complaint in DOAH Case No. 96-1991, dismissing Count II of the Administrative Complaint in DOAH Case No. 96- 1991, and revoking the massage therapy license of Sabina Dahlberg. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of May, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1997. COPIES FURNISHED: Ruby Seymour Barr, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Jerome H. Shevin, Esquire 100 North Biscayne Boulevard, 30th Floor Miami, Florida 33132 Joe Baker, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Parties The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses. On July 31, 2008, the Department issued Respondent license number MA 54053, which authorized her to practice massage therapy in the state of Florida. Respondent's address of record is 2615 South University Drive, Davie, Florida 33328. The Events Respondent was born in China and, at all times relevant to this proceeding, was a citizen of China. In 2001, Respondent immigrated to the United States and became a citizen of the state of California. In or around December 2006, Respondent enrolled at Royal Irvin College ("Royal Irvin"), an institution located in Monterey Park, California, that offered massage therapy instruction. Some three months later, upon Respondent's successful completion of a course of study comprising 500 hours, Royal Irvin awarded her a degree. Thereafter, Respondent obtained permits to practice massage therapy in three California municipalities and, on July 26, 2007, passed the National Certification Examination for Therapeutic Massage and Bodywork. In early 2008, Respondent relocated to south Florida in pursuit of better-paying employment opportunities. Respondent's search ultimately brought her to "Oriental Massage," whose owner, Ah Ming, informed her that she needed to obtain a Florida license to be eligible for hire. As Royal Irvin was not a Board-approved massage school, Respondent needed to complete a course of study at an approved institution or, alternatively, an apprenticeship program. At the suggestion of Mr. Ming, Respondent telephoned Glenda Johnson, the registrar of the Florida College of Natural Health ("FCNH")——a Board-approved massage school. During their initial conversation, Respondent explained her situation to Ms. Johnson, who, in turn, recommended that Respondent come to her office at FCNH's Pompano Beach campus. Respondent's subsequent appointment with Ms. Johnson and her application for licensure are discussed shortly; first, though, a description of FCNH——and its responsibilities under Florida law——is in order. FCNH, an incorporated nonpublic postsecondary educational entity, holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes (2012).2/ In addition to being duly licensed by the state, FCNH is accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy. Finally, FCNH is a "Board-approved massage school" within the meaning of that term as defined in section 480.033, Florida Statutes. At the times relevant to this proceeding, the minimum requirements for becoming and remaining a Board-approved massage school were set forth in Florida Administrative Code Rule 64B7- 32.003 (Oct. 30, 2007), which provided in relevant part as follows: In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must: Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 1005, F.S., or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . . Apply directly to the Board of Massage Therapy and provide the following information: Sample transcript and diploma; Copy of curriculum, catalog or other course descriptions; Faculty credentials; and Proof of licensure by the Department of Education. (emphasis added). As an institution holding a license by means of accreditation, FCNH must comply with the fair consumer practices prescribed in section 1005.04 and in the rules of the CIE.3/ Regarding these required practices, section 1005.04, Florida Statutes (2008), provided during the relevant time frame as follows: Every institution that is under the jurisdiction of the commission or is exempt from the jurisdiction or purview of the commission pursuant to s. 1005.06(1)(c) or (f) and that either directly or indirectly solicits for enrollment any student shall: Disclose to each prospective student a statement of the purpose of such institution, its educational programs and curricula, a description of its physical facilities, its status regarding licensure, its fee schedule and policies regarding retaining student fees if a student withdraws, and a statement regarding the transferability of credits to and from other institutions. The institution shall make the required disclosures in writing at least 1 week prior to enrollment or collection of any tuition from the prospective student. The required disclosures may be made in the institution's current catalog; Use a reliable method to assess, before accepting a student into a program, the student's ability to complete successfully the course of study for which he or she has applied; Inform each student accurately about financial assistance and obligations for repayment of loans; describe any employment placement services provided and the limitations thereof; and refrain from promising or implying guaranteed placement, market availability, or salary amounts; Provide to prospective and enrolled students accurate information regarding the relationship of its programs to state licensure requirements for practicing related occupations and professions in Florida; * * * In addition, institutions that are required to be licensed by the commission shall disclose to prospective students that additional information regarding the institution may be obtained by contacting the Commission for Independent Education, Department of Education, Tallahassee. (emphasis added). At the time of the events giving rise to this proceeding, the CIE's rule relating to fair consumer practices provided in relevant part as follows: This rule implements the provisions of Sections 1005.04 and 1005.34, F.S., and establishes the regulations and standards of the Commission relative to fair consumer practices and the operation of independent postsecondary education institutions in Florida. This rule applies to those institutions as specified in Section 1005.04(1), F.S. All such institutions and locations shall demonstrate compliance with fair consumer practices. (6) Each prospective student shall be provided a written copy, or shall have access to an electronic copy, of the institution's catalog prior to enrollment or the collection of any tuition, fees or other charges. The catalog shall contain the following required disclosures, and catalogs of licensed institutions must also contain the information required in subsections 6E- 2.004(11) and (12), F.A.C.: * * * (f) Transferability of credits: The institution shall disclose information to the student regarding transferability of credits to other institutions and from other institutions. The institution shall disclose that transferability of credit is at the discretion of the accepting institution, and that it is the student's responsibility to confirm whether or not credits will be accepted by another institution of the student's choice. . . . No representation shall be made by a licensed institution that its credits can be transferred to another specific institution, unless the institution has a current, valid articulation agreement on file. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: Units or credits earned at and transferred from other postsecondary institutions, when congruent and applicable to the receiving institution's program and when validated and confirmed by the receiving institution. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving institution. * * * (11) An institution is responsible for ensuring compliance with this rule by any person or company contracted with or employed by the institution to act on its behalf in matters of advertising, recruiting, or otherwise making representations which may be accessed by prospective students, whether verbally, electronically, or by other means of communication. Fla. Admin. Code R. 6E-1.0032 (July 23, 2007)(emphasis added). As a duly-licensed, accredited, Board-approved massage school, FCNH was, at all relevant times, authorized to evaluate the transferability of credits to FCNH from other massage schools, so that credits earned elsewhere (including from schools that were not Board-approved) could be applied toward the award of a diploma from FCNH. In making such an evaluation, FCNH was obligated to follow the standards for transfer of credit that the Board had established by rule.4/ Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, sign, and attach to the student's transcript the Board's Transfer of Credit Form, by which the school's dean or registrar certified that the student's previously-earned credits, to the extent specified, were acceptable in lieu of the student's taking courses at FCNH. Returning to the events at hand, Respondent met with Ms. Johnson, FCNH's registrar, on March 17, 2008. Notably, Ms. Johnson possessed actual authority, on that date and at all relevant times, to generate official transcripts and diplomas on behalf of FCNH. The meeting, which took place on a weekday during normal business hours, was held in Ms. Johnson's office——located on the first floor of a multi-story building on FCNH's Pompano Beach campus. Upon Respondent's arrival (at the main entrance), a receptionist summoned Ms. Johnson, who, a short time later, appeared in the lobby and escorted Respondent to her office. During the meeting that ensued, Respondent reiterated (with her limited English skills) her desire to obtain licensure in Florida as a massage therapist. To that end, Respondent presented Ms. Johnson with various documents, which included her diploma and transcript from Royal Irvin, copies of her existing professional licenses, and proof of her national certification. As the meeting progressed, Ms. Johnson made copies of Respondent's records and asked her to sign an FCNH enrollment agreement, which Respondent did. The agreement, which is part of the instant record, indicates that Respondent was enrolling for the purpose of "(Transfer of Licensure) Therapeutic Massage Training." The agreement further reflects, and Respondent's credible testimony confirms, that, on the date of their meeting, Ms. Johnson collected $520.00 in fees5/ from Respondent. In addition to the enrollment agreement,6/ Ms. Johnson filled out, and Respondent signed, a three-page form titled, "State of Florida Application for Massage Therapist Licensure." In the application, Respondent truthfully disclosed, among other things, that she had completed 500 hours of study at Royal Irvin; that Royal Irvin was not approved by the Board; and that she had not attended an apprenticeship program. Before the meeting ended, Respondent observed Ms. Johnson print and sign two documents: an FCNH Certificate of Completion, which reflected that Respondent had satisfied a two- hour course relating to the prevention of medical errors; and an FCNH Certificate of Completion indicating the completion of a "Therapeutic Massage Training Program (Transfer of Licensure)." When asked about the documents, Ms. Johnson informed Respondent, erroneously, that her prior coursework and existing credentials were sufficient for licensure. (Among other things, Ms. Johnson should have advised Respondent that Board-approved coursework in "HIV/AIDS" and the "prevention of medical errors"——neither of which Respondent completed until after7/ the Complaint was filed in this matter——was required8/ for licensure.) All Respondent needed to do, Ms. Johnson incorrectly explained, was read an FCNH-prepared booklet concerning the prevention of medical errors. Consistent with Ms. Johnson's instructions, Respondent took the booklet home and reviewed its contents. In the weeks that followed, the Department received Respondent's application for licensure and various supporting documents, which included: the FCNH certificates (discussed above); a "Transfer of Credit Form" signed by Ms. Johnson, which indicates that FCNH accepted Respondent's credits from Royal Irvin, and, further, that Respondent's coursework at Royal Irvin included a two-credit class involving the prevention of medical errors; an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing that Respondent had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)"; Respondent's diploma and transcript from Royal Irvin; and a copy of Respondent's national certification as a massage therapist. Collectively, the credit transfer form, the FCNH certificates, and the FCNH transcript "signify satisfactory completion of the requirements of an educational or career program of study or training or course of study" and constitute a "diploma" within the meaning of that term as defined in section 1005.02(8), Florida Statutes. (These documents, which Respondent's FCNH diploma comprises, will be referred to hereafter, collectively, as the "Diploma.") On May 30, 2008, the Department provided written notification to Respondent that, upon initial review, her application was incomplete because it failed to include copies of her California esthetician's license and massage permit from the city of Costa Mesa, California. Significantly, the correspondence noted no other irregularities or omissions concerning Respondent's application or supporting documentation. Consistent with the Department's request, Respondent furnished copies of her esthetician's license and massage permit from Costa Mesa. Thereafter, on July 31, 2008, the Department issued Respondent her license to practice massage therapy. Although the Department seeks to characterize the issuance of Respondent's license as a "mistake" on its part, such a contention is refuted by the final hearing testimony of Anthony Jusevitch, the executive director of the Board. Mr. Jusevitch testified, credibly, that the Respondent's application materials contained no facial irregularities or flaws that would have justified a denial: Q. Mr. Jusevitch, is this, then, the complete application file that was received by the board? A. Yes. Q. When you look at all of the documents in this application file, is there anything in the file that would have caused the Board of Massage Therapy to reject this application? A. I didn't see anything that would have cause[d] us to reject this application when I review it; no. * * * A. No, there was nothing irregular about the application. . . . Final Hearing Transcript, pp. 83; 86. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination (which the NCB administers) from FCNH graduates whose transcripts seemed irregular. What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin, and that the same member of FCNH's administration——i.e., Ms. Johnson——had accepted their transfer credits. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected some anomalies in them. She was unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students. Ms. Wade confronted Ms. Johnson with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them, but she denied——untruthfully, at least with respect to her dealings with Respondent——ever having taken money for doing so. (Ms. Johnson provided the rather dubious explanation that she had been merely trying to "help" people.) Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Thereafter, Ms. Wade notified the Department that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH cooperated. The investigation uncovered approximately 200 to 250 graduates, including Respondent, whose credentials FCNH could not confirm.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding Respondent not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 14th day of June, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2013.
The Issue The issues to be determined in this matter are whether Respondent, BBK Florida, LLC, a licensed massage business, allowed an unlicensed person to practice massage therapy; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Department is the state agency charged with regulating the practice of massage therapy in Florida. See § 20.43(3)(g)21., and ch. 456 and 480, Fla. Stat. BBK is a licensed massage business in the state of Florida. BBK operates under the name “BBK Massage Spa” and is located in Ocoee, Florida. The Department brings this action alleging that BBK allowed an unlicensed person to practice massage at its establishment. The Department charges BBK with violating section 480.046(1)(f) and (p), Florida Statutes. Section 480.046(1)(f) prohibits the “[a]iding, assisting, procuring, or advising any unlicensed person to practice massage contrary to the provisions of this chapter or to a rule of the department or the board.” The Department’s allegations focus on the activities of Xiaohui Lu at BBK on January 17, 2017. Ms. Lu is not, nor has she ever been, licensed to practice massage in the state of Florida. At the final hearing, the Department presented the testimony of Amy Harmon, a Department Investigation Specialist. Ms. Harmon has served as an Investigation Specialist since 2010. She conducts approximately 700 to 1,000 investigations a year. Ms. Harmon inspects several different types of businesses including massage facilities, optical establishments, and pain management institutions. Her goal is to inspect each business for which she is responsible at least once a year. Ms. Harmon explained that the primary reason for inspecting massage establishments is to safeguard the public against health risks. As stated in section 480.033(3), “massage” involves: [T]he manipulation of the soft tissues of the human body with the hand, foot, arm, or elbow, whether or not such manipulation is aided by hydrotherapy, including colonic irrigation, or thermal therapy; any electrical or mechanical device; or the application to the human body of a chemical or herbal preparation. Consequently, the Florida Legislature has specifically determined that: [T]he practice of massage is potentially dangerous to the public in that massage therapists must have a knowledge of anatomy and physiology and an understanding of the relationship between the structure and the function of the tissues being treated and the total function of the body. Massage is therapeutic, and regulations are necessary to protect the public from unqualified practitioners. It is therefore deemed necessary in the interest of public health, safety, and welfare to regulate the practice of massage in this state. § 480.032, Fla. Stat. In light of this legislative directive, Ms. Harmon explained that when she inspects a massage business, her goal is to ensure that customers are not touched or treated in an inappropriate manner. Ms. Harmon remarked that licensed massage therapists receive extensive training in anatomy and physiology. They are specifically taught how to manipulate soft tissue without damaging a person’s muscles, neck, or spine. Therefore, she ensures that all persons who provide massages are properly licensed in Florida, and that their licenses are appropriately displayed in the business. She also examines the massage facility’s sanitary conditions. On the morning of January 17, 2017, Ms. Harmon conducted a routine inspection of BBK. Ms. Harmon relayed that BBK is located in a strip mall. When she entered the store, she walked into a large lobby area with a reception desk and several chairs. A single hallway led straight back from the lobby and ended in a kitchen space. Several doorways lined the hallway. At least three of these rooms are used for massage services. Curtains partition the massage rooms from the hallway. Ms. Harmon did not find anyone present in the lobby. Therefore, she headed toward the hallway. As she reached the hallway, she saw a woman walk out of one of the massage rooms. Ms. Harmon observed that the woman (later identified as Ms. Lu) was holding her hands out in front of her with her palms up. Her hands were covered in oil. Ms. Harmon announced to Ms. Lu that she was an inspector with the Department. Ms. Harmon then asked Ms. Lu if she had a message therapy license. Ms. Lu responded that she did not have a massage license, but she was not performing a massage. Instead, Ms. Lu produced a body wrapper license issued by the Florida Department of Business and Professional Regulation, as well as a New York drivers license. Ms. Harmon then walked into the massage room that Ms. Lu had just vacated. There, she found a man lying on a massage table draped in a sheet. Ms. Harmon did not observe any body wrapping materials or supplies in the room. (Neither did Ms. Harmon subsequently find any body wrapping advertisements on the premises.) Ms. Harmon deduced that the oil on Ms. Lu’s hands was used for massages, not body wrapping treatments. Consequently, Ms. Harmon concluded that the customer was prepared to receive a massage, and that Ms. Lu was going to provide it. Ms. Harmon did not ask Ms. Lu if she was, in fact, giving a massage to the man on the table. Neither did she actually see Ms. Lu physically touch the customer. However, based on her observations, she firmly believed that when she walked into BBK, Ms. Lu was in the process of providing a massage to the man lying on the table in the massage room. At that point, another woman, who identified herself as Min Zhang, emerged from the last room down the corridor (the kitchen). Ms. Zhang produced a Florida massage therapy license for Ms. Harmon, as well as a Florida drivers license. Ms. Zhang then entered the massage room to attend to the customer. Ms. Harmon further recounted that, in another room, she found a suitcase belonging to Ms. Lu by a bed. Ms. Harmon learned from the two women that Ms. Lu had only arrived at BBK that morning. In response to the Department’s allegations, BBK flatly denied that Ms. Lu was practicing massage when Ms. Harmon inspected its business on January 17, 2017. Instead, BBK asserted that Ms. Zhang, who is properly licensed, was the individual massaging the client at the time Ms. Harmon entered the establishment. Ms. Zhang testified at the final hearing. Ms. Zhang was the store manager on the date of the inspection. Ms. Zhang holds a valid massage therapy license with the State of Florida. Ms. Zhang declared that January 17, 2017, was Ms. Lu’s first day at BBK. She had never met or spoken to Ms. Lu before that morning. Consequently, Ms. Zhang claimed that she was unaware that Ms. Lu did not have a massage therapy license when Ms. Harmon arrived at the business. Ms. Zhang understood that BBK hired Ms. Lu through the internet. She did not participate in BBK’s decision to allow Ms. Lu to work at its facility. Ms. Zhang relayed that on the morning of the inspection, she was the first employee to arrive at BBK. Ms. Lu appeared shortly thereafter. Ms. Zhang introduced herself, then showed Ms. Lu around the store. Before long, the client showed up. Ms. Zhang testified that she led the client back to massage room 3 for an hour-long massage. According to Ms. Zhang, she, not Ms. Lu, was massaging the customer when Ms. Harmon entered BBK. Ms. Zhang stated that she heard Ms. Harmon walk in the front door. She then left the massage room and met Ms. Harmon in the lobby. Ms. Zhang testified that Ms. Lu was not in a massage room or the hallway. Instead, she was located back in the kitchen. After Ms. Zhang exited massage room 3, she saw Ms. Lu walking to the lobby to meet Ms. Harmon. Thereafter, both Ms. Zhang and Ms. Lu produced their licenses and identifications for Ms. Harmon. Ms. Zhang expressed that it was at this time that she learned that Ms. Lu was not a licensed massage therapist. Ms. Zhang readily acknowledged that a person is not allowed to practice massage therapy without a license. Ms. Zhang professed that she was well aware that Ms. Lu could not have massaged any BBK clients unless she held a license in Florida. Ms. Zhang emphasized that neither she, nor BBK, would allow anyone to provide massages without a license. Ms. Zhang maintained that Ms. Lu never touched the client. BBK also presented the testimony of Juan Feng. Ms. Feng identified herself as the main manager of BBK. Ms. Feng runs the business, while Ms. Zhang manages the day-to-day operations. Ms. Feng was not present at BBK during Ms. Harmon’s inspection on January 17, 2017. According to Ms. Feng, BBK first communicated with Ms. Lu after it posted a job opening for a massage therapist over the internet. Ms. Feng conveyed that BBK’s advertisement specifically stated that a Florida massage license was required for the position. Ms. Lu, who was living in New York, called BBK about the job. Ms. Feng testified that Ms. Lu represented that she was licensed in both New York and Florida. Because Ms. Lu appeared qualified for the massage therapist job, BBK invited her to come to Florida for a trial employment period. Ms. Lu travelled by bus. She arrived in Florida on the afternoon of Monday, January 16, 2017. She showed up at BBK for the first time on Tuesday morning, January 17, 2017 (the date of Ms. Harmon’s inspection). Ms. Feng remarked that, while she had spoken with Ms. Lu approximately three times over the phone, she never met her in person before the Department’s inspection. Ms. Feng learned about the inspection from Ms. Zhang, who called her just after Ms. Harmon left. Ms. Feng repeated that the first time she, or anyone else at BBK, was aware that Ms. Lu did not have a Florida massage therapy license was during Ms. Harmon’s inspection. Ms. Feng pronounced that she would never have hired Ms. Lu if she had known that Ms. Lu did not have a valid Florida license. Ms. Feng expressed that after the inspection, she explained to Ms. Lu that she would not be allowed to work at BBK without the required massage license. Ms. Feng represented that Ms. Lu never returned to BBK following Ms. Harmon’s inspection. Ms. Feng understood that Ms. Lu went back to New York. (Neither party called Ms. Lu to testify at the final hearing.) Although Ms. Feng was not present at BBK during the inspection, she testified that she has seen the store’s security video recording of Ms. Harmon’s visit. According to Ms. Feng, BBK has four video cameras mounted inside the facility. Two cameras survey the lobby, and two cameras are positioned at either end of the hallway. However, Ms. Feng disclosed that the video recording from January 17, 2017, no longer exists. The video footage is automatically recorded over after seven days. Therefore, while she claimed to have watched the video shortly after Ms. Harmon departed the store, BBK could not produce the video for the Department or at the final hearing. At the final hearing, Ms. Feng described what she watched on the video. Ms. Feng relayed that she saw Ms. Zhang and Ms. Lu arrive in the morning. But, when the client appeared, it was Ms. Zhang who escorted him back to massage room 3. Later, after Ms. Harmon entered the lobby, Ms. Feng testified that Ms. Zhang, not Ms. Lu, exited massage room 3. Ms. Zhang walked across the hall to the bathroom, then went to meet Ms. Harmon in the lobby. At that point, Ms. Feng saw Ms. Lu emerge from the kitchen and approach the front of the store. Ms. Zhang and Ms. Lu met Ms. Harmon in the lobby. Ms. Harmon then sat down in the lobby, wrote her report, and left the store.4/ Ms. Feng declared that contents of the video establish that Ms. Lu never went into massage room 3. Based on her review, Ms. Feng opined that when Ms. Harmon saw Ms. Zhang advancing up the hallway, she mistakenly determined that it was Ms. Lu coming out of the massage room. Based on the competent substantial evidence provided at the final hearing, the clear and convincing evidence in the record establishes that BBK aided, assisted, or advised an unlicensed person (Ms. Lu) to practice massage in violation of section 480.046(1)(f) and (p). Accordingly, the Department met its burden of proving that BBK should subject to an administrative sanction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order: finding that BBK Florida, LLC, violated section 480.046(1)(f) and (p); and imposing an administrative fine in the amount of $1,000, as well as a reprimand. DONE AND ENTERED this 13th day of March, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 13th day of March, 2018.
The Issue The issues in this case are whether Respondent failed to appropriately drape a client as charged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department of Health is the state agency charged with regulating the practice of massage therapy within the state of Florida, pursuant to section 20.43, and chapters 456 and 480, Florida Statutes. At all times material to this matter, Respondent was licensed as a massage therapist, Florida license number MA 91037. On December 15, 2018, Respondent provided a massage to client A.M. at a spa located in Orlando, Florida. Respondent was an employee of the spa when he provided the massage to A.M. At the beginning of the massage session, A.M. lay face down on the massage table and was covered with a thin white sheet. According to A.M., Respondent removed the sheet from half of her body as she lay face down. A.M. described the sheet removal as follows: The draping was removed from one half of my body from my shoulders to my feet, uncovering one whole side of my body, including my buttocks and my underwear was exposed. Though ambiguous, the most reasonable inference from this testimony is that A.M. was wearing underwear underneath the sheet, and that after the sheet was removed from half of her body, one side of her buttocks was no longer covered by the sheet but was covered by her underwear. There was no testimony or other evidence offered that described A.M.’s underwear. Accordingly, the evidence does not establish with any certainty whether any portion of A.M.’s buttocks was completely uncovered or bare after the sheet was removed from half of her body. A.M. testified that Respondent did not ask her permission to remove the sheet from half of her body, and that she did not say anything to Respondent about the manner in which she was draped. After the 50-minute massage was over, A.M. left the spa and called her husband and told him what had occurred. She asked her husband to complain to the spa. The spa offered A.M. another massage at no charge, but she declined the offer. Respondent testified that he had no independent recollection of client A.M. or the massage services that he provided to her on December 15, 2018. Nevertheless, Respondent denied that he removed the sheet from half of A.M.’s body because that was not his routine practice. Respondent offered photographs from one of his massage therapy textbooks showing four examples of “professional draping” methods in the face-down (prone) position. One of the photographs shows a female client draped with a sheet covering half of her body. The client in this photograph is not wearing any underwear, leaving half of her bare buttocks completely uncovered.2 Thus, even if it was not Respondent’s routine practice to drape Although Respondent was taught that it is acceptable to drape a client with half of the body uncovered by a sheet or any undergarment, draping a client in this manner would violate the rule “unless the client gives specific informed consent to be undraped.” Fla. Admin. Code R. 64B7-30.001(5). clients with only half their body covered by a sheet, he was taught it is acceptable to do so. The Department presented testimony from Faith Buhler, L.M.T., an expert in massage therapy. Ms. Buhler testified that the standard of care for massage therapy requires massage therapists to drape clients in conformance with the rule. But the rule itself adequately defines the standard of care for draping massage clients under the circumstances at issue here, rendering expert testimony on the subject unnecessary in this case. Accordingly, Ms. Buhler’s expert testimony is not probative and has not been adopted for this reason. Respondent offered testimony from Ms. Delk, a massage client, and Mr. Swart, a former employer. These witnesses were not present when Respondent massaged A.M. They do not have any first-hand knowledge of any material fact in dispute in this case and their testimony was disregarded for this reason. A.M.’s testimony that only half of her body was covered by a sheet during the massage provided by Respondent on December 15, 2018, is credible and is accepted. But A.M.’s testimony leaves unresolved whether half of her buttocks was completely uncovered during the massage, or whether one side of her buttocks remained covered by her underwear after Respondent removed the sheet from half of her body.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy, issue a final order dismissing the Administrative Complaint against Respondent, Devin Triplett, L.M.T. DONE AND ENTERED this 2nd day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Devin K. Triplett 264 Tavestock Loop Winter Springs, Florida 32708 Kama Monroe, JD, Executive Director Board of Massage Therapy Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 S BRIAN A. NEWMAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2021. Alyssa Ward, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399
The Issue The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy in violation of section 480.0485, Florida Statutes, or in the practice of a health profession, in violation of section 456.072(1)(v), Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Department, Board of Massage Therapy, is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. At all times material to this proceeding, Ms. Li was a licensed massage therapist in the state of Florida, holding license number MA82765. Ms. Li's current address of record is 620 East Colonial Drive, Orlando, Florida 32803. Ms. Li's native language is Mandarin Chinese. She came to the United States from China in 2014, and her ability to communicate in English is limited. On November 16, 2016, Ms. Li was employed by Empire Day Spa (Empire), located in Lake Worth, Florida. On that day, Detective Avidon, as part of the City of Lake Worth Community Policing Street Crimes Unit, was participating in an ongoing investigation into possible prostitution. He entered Empire in an undercover capacity and was greeted by Ms. Li. Detective Avidon asked her how much it would be for a one-hour massage. Ms. Li advised him it cost $70. Detective Avidon asked Ms. Li if she would give him a "full service" massage, which, from his experience in investigating vice, he understood to be a phrase commonly used to refer to the performance of sexual acts during or after a massage. As he testified, Ms. Li took Detective Avidon into an enclosed hallway to the left of the counter, where she told him he would have to pay extra money. Ms. Li then led him to a massage room. Later in the massage room, Detective Avidon asked her, "how much?" Ms. Li came over to him, rubbed his upper thigh just below the genital area, gestured as if she were performing masturbation, and asked him, "you want?" As he testified, Detective Avidon, using a slang term for oral sex, then asked Ms. Li, "How much for a blow job?" Ms. Li answered, "You tell me." Detective Avidon then asked, "Sixty?" Ms. Li responded, "One hundred." Detective Avidon confirmed, "One hundred dollars?" Ms. Li said, "Yes." Detective Avidon told Ms. Li he needed to put his phone and wallet in his car and exited Empire. Detectives already on scene then entered Empire along with Detective Avidon. Ms. Li was positively identified by Detective Avidon, and she was placed into custody. Ms. Li was later formally identified using the Florida Driver's license in her possession. Detective Avidon shortly thereafter completed the probable cause affidavit, which later was introduced into evidence to supplement and explain his live testimony at hearing. Ms. Li's contrary testimony, to the effect that while she was in the massage room with Detective Avidon, she did not agree to engage in sexual activity, was not credible and is rejected. While it is accepted that Ms. Li's ability to communicate in English is limited, the credible testimony of Detective Avidon as to all the circumstances surrounding their communications makes it very clear that Ms. Li completely understood that she was agreeing to engage in sexual activity in exchange for payment. Ms. Li's actions on November 16, 2016, were outside the scope of practice of massage therapy. Ms. Li used the massage therapist-patient relationship to attempt to engage Detective Avidon in sexual activity. Ms. Li engaged in sexual misconduct in the practice of massage therapy. Ms. Li has never had any prior discipline imposed against her 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 Ms. Shufang Li in violation of sections 480.0485 and 456.072(1)(v), Florida Statutes, constituting grounds for discipline under section 480.046(1)(p); imposing a fine of $2,500; revoking her license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 18th day of May, 2018, 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 18th day of May, 2018. COPIES FURNISHED: Gennaro Cariglio, Jr., Esquire Law Office of Gennaro Cariglio, Jr. Penthouse 701 8101 Biscayne Boulevard Miami, Florida 33138 (eServed) Lealand L. McCharen, Esquire Gerald C. Henley, II, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Kama Monroe, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed)
The Issue The issues in these consolidated cases are whether Respondent committed sexual misconduct as charged in the Administrative Complaints, and, if so, what penalty should be imposed.
Findings Of Fact The Department is charged with regulating the practice of massage therapy pursuant to chapters 456 and 480, Florida Statutes. At all times material to this case, Respondent was a licensed massage therapist in Florida, having been issued license number MA 11149. Respondent has practiced massage therapy for approximately 30 years. Client M.S., DOAH Case No. 20-4754PL On January 10, 2018, M.S. completed her initial client intake form with Respondent which contained several sections. M.S. wrote that she suffered from post-concussion syndrome. According to M.S., she was diagnosed with post-concussion syndrome and mild traumatic brain injury after a log fell on her head in August of 2017. Under the heading “concerns,” M.S. wrote: “I’m going crazy and losing memory completely—eyes burning.” Under “recent changes,” M.S. wrote: “loss of memory, confusion, irate, irritability, uncontrollable anxiety, depression, extreme vertigo, unable to focus or comprehend, extreme nervousness and feeling out of control emotions.” M.S. had four massage sessions with Respondent on January 10, 19, 24, and 31, 2018. M.S. removed her shoes but was otherwise fully clothed during all four massage sessions. The Department alleges that the sexual activity occurred during M.S.’s fourth and final session on January 31, 2018. Specifically, the Department alleges that Respondent touched M.S.’s labia with his fingers, rested his fingers on M.S.’s vagina, and cupped her vagina.2 During her testimony, M.S. demonstrated how Respondent touched her vagina. Using her own hand to demonstrate, M.S. placed her hand above her vagina with her fingers pointed in a horizontal position. M.S. did not indicate that Respondent “cupped” her vagina during this demonstration. Respondent denies that he touched M.S.’s labia with his fingers, rested his fingers on her vagina, or cupped her vagina. Respondent’s testimony as to the touching that occurred during the January 31, 2018, massage session was credible and more precise than that of M.S. Respondent’s testimony is accepted over the testimony of M.S. where it conflicts. Dr. George Rozelle is the physician who owns the facility where Respondent performed massage therapy on M.S. The Department offered hearsay testimony from a witness who heard Dr. Rozelle say “not again” when M.S. told him that Respondent had touched her inappropriately during the massage session that occurred that day. The inference suggested by the Department is that Respondent had been previously accused of inappropriately touching other massage therapy clients on other occasions. 2 The Department also states in its PRO that Respondent touched M.S.’s breasts. The Administrative Complaint in DOAH Case No. 20-4754PL does not, however, identify the touching of M.S.’s breasts as a sexual activity that occurred when Respondent massaged her, and therefore cannot serve as a basis for disciplinary action in this case. Trevisani v. Dep’t of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Delk v. Dep’t of Prof’l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992). The testimony is hearsay for which the Department failed to establish an exception, and is unreliable because Dr. Rozelle did not testify to explain what he meant when he said “not again.” Even if Dr. Rozelle said “not again,” because there were one or more prior similar complaints about Respondent, such unproven allegations cannot be relied upon here to establish that Respondent had a propensity to commit sexual misconduct on massage therapy clients. § 120.57(1)(d), Fla. Stat. For all of these reasons, the “not again” statement is not accepted as evidence against Respondent. The Department failed to prove that Respondent engaged M.S. in sexual activity, or that Respondent touched M.S. in a manner that was intended to, or likely to, erotically stimulate himself or M.S. Client S.B., DOAH Case No. 20-4755PL S.B. presented to Respondent for massage therapy for the first time on August 15, 2017. S.B. completed a client information form indicating that the reason for her visit was “low energy, lost, depressed.” S.B. wrote that she experienced these conditions for four years, that they followed an undisclosed accident, trauma, or illness, and that they were aggravated by “life.” S.B. was seen by Respondent for massage therapy on nine different occasions on August 17 and 20, and October 10 and 19, 2017; January 16, 23, and 30, and February 6 and 15, 2018. Respondent was fully clothed during all the massage sessions with Respondent. S.B. testified that Respondent told her that he “loved” her and that he was “never going to leave” her during several visits, but she could not identify when Respondent made those statements. S.B also testified that Respondent told her that she may experience an orgasm when he applied pressure to her groin during a session, but she could not recall when that happened. S.B. testified that she returned to see Respondent for message therapy after he touched her groin and allegedly made the “orgasm” comment, but that she had another female massage therapist with her during the session. Additionally, S.B. testified that Respondent put his hands over her breasts during more than one session, but she could not say how often or when this occurred. S.B. denied that Respondent ever “grasped” her breasts and admitted that she never complained to Respondent about allegedly touching her breasts. Respondent denied that he told S.B. that he “loved” her, that he was “never going to leave” her, or that she might experience an “orgasm.” According to Respondent, he touched S.B.’s adductor muscles and pubic bone—not her vagina—to help reduce her complaint of hip pain during her third visit on October 10, 2017. S.B.’s testimony was imprecise and the facts to which she testified were not distinctly remembered. Respondent’s testimony is accepted over S.B.’s testimony where it conflicts. The Department failed to prove that Respondent engaged S.B. in sexual activity or that Respondent touched S.B. in a manner that was intended to, or likely to, erotically stimulate himself or S.B.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy, enter a final order dismissing the Administrative Complaints. DONE AND ENTERED this 26th day of May, 2021, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2021. COPIES FURNISHED: Mary A. Wessling, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Richard A. Greenberg, Esquire Rumberger Kirk & Caldwell 101 North Monroe Street, Suite 120 Tallahassee, Florida 32301 Julisa Renaud, Esquire Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Kama Monroe, JD, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 Ann L. Prescott, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
The Issue The issue to be determined is whether Respondent violated sections 456.072(1)(h), 456.072(1)(w), and 480.041(1)(b), Florida Statutes (2010), as alleged in the Amended Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43 and chapters 456 and 480, Florida Statutes (2013). At all times relevant to the Amended Administrative Complaint, Respondent has been a licensed massage therapist in the State of Florida, having been issued license number MA 63711. Respondent is a native of China, and immigrated to the United States in approximately 2007. She speaks limited English. Respondent wanted to become a massage therapist. To that end, Respondent attended the massage therapy training program offered at Healing Hands Institute for Massage Therapy (Healing Hands) and completed her training program on or about October 17, 2010. The program at Healing Hands consisted of a 600-hour curriculum. At all times relevant to the allegations in the Amended Administrative Complaint, Healing Hands was a school accredited by the Commission on Massage Therapy Accreditation (COMPTA) and approved by the New Jersey Board of Massage Therapy. It was not, however, a Florida board-approved school for purposes of obtaining licensure in Florida. After Respondent’s attendance at Healing Hands, the school closed in good standing with COMPTA. Healing Hands had campuses in Flushing, New York, as well as in New Jersey. Respondent completed most of her course work at the Flushing campus because there were people there who spoke Chinese, making it easier for her to understand the curriculum. While still a student at Healing Hands, Respondent took and passed the National Certification Examination for Therapeutic Massage and Bodywork. She received notification that she had passed the examination by letter dated June 8, 2010. It is unclear from the letter whether it is actually dated June 8, 2010, or is referring to an examination given that date. In any event, after receiving notice that she had passed the necessary examination, Respondent applied for and received a license to practice massage therapy in the State of New Jersey. Her original license was issued February 24, 2011, and her current license in New Jersey is valid through November 30, 2014. Respondent received assistance in filling out the paperwork related to her New Jersey application from a friend named “Mike” who is a lawyer. Mike did not charge her for his assistance. According to Respondent, Mike completed the application forms for her and she reviewed them and signed them. There are no allegations in the Amended Administrative Complaint to indicate that her educational program at Healing Hands was not legitimate; that she did not take and pass the National examination; or that any actions taken to obtain her New Jersey license were fraudulent. Respondent was not required to provide any additional coursework or certifications beyond her Healing Hands transcript and proof of passing her national certification exam in order to obtain her New Jersey license. Respondent wished to move to Florida because she had heard that there are good jobs in massage therapy here. She knew that she would have to obtain a Florida license in order to work in Florida. To that end, she sought assistance from a person at Healing Hands that she identified as “Sean.” Although she referred to Sean as one of her instructors who taught the majority of her courses, there is no instructor listed on her transcript whose first name is identified as Sean. Although there is no direct evidence other than Respondent’s testimony regarding Sean, it seems more likely that, rather than being an instructor, Sean was an interpreter for the students who spoke Chinese. Respondent asked Sean to assist her with the process for getting a Florida license because other students had told her he had assisted them in obtaining licenses from other states. She paid Sean $1,000.00 to cover the cost of applying for her Florida license. Some of the money was paid in cash, and some was in the form of a money order. Respondent could not remember how much of the total was in money order form. The application fee and initial license fee are significantly less than $1,000. Respondent received her license to practice massage therapy in Florida on June 5, 2011. However, what actually happened between the time she asked Sean for help and when she got her license is unclear at best. On or about March 17, 2011, Respondent’s State of Florida application for licensure as a massage therapist was submitted to the Florida Department of Health, Board of Massage Therapy. The application was submitted electronically, and does not include Respondent’s signature. Respondent testified that she never filled out the application and never saw it before it was submitted to the Department of Health. While it is clear that Respondent did not personally submit the application, it is not clear who did. There is no competent evidence to demonstrate who completed the application and submitted it to the Board office. Respondent’s application indicated that she did not attend an apprenticeship program. It also indicates that, at the time of the application, she has never held a license or certificate, regardless of status, to practice any licensed profession; that she has not completed a 10-hour Florida laws and rules course; that she has not completed a two-hour course in the prevention of medical errors; and that she has not completed a three-hour HIV/AIDS course. On or about May 9, 2011, a transcript from the Florida College of Natural Health (FCNH) was submitted to the Department of Health in support of Respondent’s application. Also submitted were a Transfer of Credit Form and FCNH Certificates of Completion for 12 hours of Therapeutic Massage Training Program and two hours of Prevention of Medical Errors. Also submitted that day were a transcript from Healing Hands and a copy of the Official Candidate Score Report for the National Certification Examination for Therapeutic Massage and Bodywork, indicating that Respondent had achieved a passing grade. FCNH is an incorporated, nonpublic, post-secondary educational entity which holds a license issued by the Florida Commission for Independent Education, which regulates nonpublic post-secondary institutions pursuant to section 1005.32, Florida Statutes. FCNH is also accredited by the Accrediting Commission of approved schools and Colleges and by the Commission on Massage Therapy. FCNH is a board-approved massage school as that term is defined in section 480.033. In order to be a board-approved massage school, a school is required to offer a course of study that includes, at a minimum, 500 class hours, and is also required to supply to the Board as part of its application a sample transcript and diploma; a copy of curriculum, catalog or other course descriptions; faculty credentials; and proof of licensure by the Department of Education. Fla. Admin. Code Rule 64B7-32.003. As a licensed, accredited, and board-approved massage school, FCNH was and continues to be authorized to evaluate the transferability of credits from another institution to FCNH, including schools that are not board-approved. Any transferred credits could then be applied by FCNH toward the award of a diploma from FCNH, provided that FCNH adhered to the standards in rule 64B7-32.004, and completed, signed, and attached to the school’s transcript, the Board’s Transfer of Credit form, certifying the extent to which a student’s previously-earned credits were acceptable for transfer to FCNH. While the minimum number of class hours for licensure is 500 hours, the program at FCNH consists of 768 hours. At all times relevant to the allegations in the Amended Administrative Complaint, Glenda Johnson was FCNH’s registrar. Ms. Johnson had been employed by FCNH since 1996, and had the apparent authority to evaluate the transferability of credits from other educational institutions to FCNH, and to execute a Transfer of Credit Form certifying to the Board that a student’s credits earned at another institution would be acceptable to FCNH. The Transfer of Credit form stated that FCNH had evaluated Respondent’s transcript from Healing Hands and that the evaluation was conducted on April 18, 2011. The form indicated that Respondent needed ten hours of Florida laws and rules and two hours of medical errors instruction in order to qualify for licensure. The form, which was signed by Glenda Johnson as Registrar of FCNH, accepted a total of 488 hours from Healing Hands, including three hours for HIV/AIDS education. The FCNH transcript, signed by Glenda Johnson as registrar of FCNH, indicated completion of 500 program hours, including three hours for HIV/AID education as of April 22, 2011. It indicates completion of coursework regarding prevention of medical errors or Florida laws and rules. Like the transcript and the Transfer of Credit form, the certificates of completion for Therapeutic Massage Training Program (Transfer of Licensure) and for Prevention of Medical Errors were signed by Glenda Johnson. Respondent’s transcript from Healing Hands was also submitted with the documents received by the Board office on May 9, 2011. The transcript indicates that Respondent completed a 600-hour program at Healing Hands, including three hours for HIV/AIDS awareness. It appears that the documents submitted on May 9, 2011, were most likely submitted to the Board office by Glenda Johnson, as many of them are signed by her and appear to be documents from FCNH, where she worked. As registrar of the school, Ms. Johnson had the apparent authority to evaluate Respondent’s hours at Healing Hands for transfer, and that evaluation can be performed electronically. In other words, a student did not have to visit a FCNH campus in order for his or her prior credits to be evaluated for transfer. Neither Ms. Johnson nor Sean testified at hearing. Respondent testified that she never met Ms. Johnson and never set foot on any of FCNH’s campuses. While it was assumed at hearing that Sean conspired with Ms. Johnson to create false documents in order for Respondent to obtain a Florida license, there was no competent evidence from which such a finding can be made. There is no evidence from which it can be determined whether Sean was complicit in fraud or being duped by Ms. Johnson. The only finding that can be made based on the evidence presented is that someone submitted, on Respondent’s behalf, documents that indicate that sufficient credits were transferred from Healing Hands to FCNH, a board-approved school; completion of all required courses; successful completion of the national examination; and that those documents on their face were sufficient to demonstrate Respondent met the requirements for licensure. Melissa Wade is a managerial employee of FCNH. At some point after Respondent received her license, Ms. Wade received a telephone call from someone from the National Certification Board for Therapeutic Massage and Bodywork (NCB) to report that NCB had received several applications to sit for the national certification examination from purported FCNH graduates whose transcripts seemed irregular. Respondent was not among those individuals identified as having suspicious credentials, as she had taken the examination prior to any purported contact with FCNH. Ms. Wade reviewed the credentials for those applicants identified by NCB, and found several things in the documents that she considered to be suspicious. While these irregularities may have been red flags for Ms. Wade and those who routinely review transcripts, it is not clear that these irregularities would be apparent to a casual observer. However, the students for whom the transcripts and Transfer Forms were prepared were not found in FCNH’s records as actually being students of the school. Ms. Wade confronted Ms. Johnson regarding the irregular transcripts and certificates. Ms. Johnson was terminated by FCNH in December 2011. Ms. Wade notified the Board of Massage that some people who had applied for licensure as graduates of FCNH might not have met the requirements for graduation. The Department initiated an investigation, with which FCNH cooperated. This investigation uncovered approximately 200 graduates, including Respondent, whose credentials FCNH could not confirm. Although Ms. Wade reviewed Respondent’s documents that comprise Respondent’s application for licensure and testified that Ms. Johnson did not have the authority to evaluate the hours from Healing Hands for transfer to FCNH, she did not testify that the courses which were purportedly accepted for transfer would in fact be unacceptable. Anthony Jusevitch, Executive Director for the Board of Massage Therapy, testified that typically it is the school, as opposed to the applicant, that submits transcripts and certificates regarding completion of curriculum requirements. There was no credible, competent evidence to indicate exactly who decided to create the documents submitted to the Board of Massage on Respondent’s behalf, or that Respondent knew of or authorized their creation. What is clear, however, is that Respondent did not know of their creation or their submission to the Board office. Once Respondent was notified of the alleged deficiency in her credentials for her Florida license, she took two home- study courses through Life Education of Florida on the subjects of Medical Errors and HIV/AIDS, for two and three hours, respectively. She also took a Florida Laws and Rules course for 10 hours through Advanced Massage Techniques’ online program. The use of continuing education courses is valid for obtaining initial licensure. Respondent currently meets all of the requirements for licensure in the State of Florida. She continues to live in New Jersey. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, at the time her licensure application was processed by the Board staff, Respondent did not meet the requirements for licensure because she had not taken the required prevention of medical errors and Florida Laws and Rules courses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 9th day of September, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2013.
