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 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, and, if so, the appropriate sanction.
Findings Of Fact Based on the stipulations of the parties, evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner, Department of Health, Board of Massage Therapy (Petitioner or Board), 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. Stipulated Facts At all times material to this proceeding, Respondent was a licensed massage therapist in the state of Florida, holding license number MA48984. Respondent’s current address of record is 4069 Old Mill Cove Trail West, Jacksonville, Florida 32277. At all times material to this proceeding, Respondent worked for Massage Envy, a massage establishment in Jacksonville, Florida. On or about August 28, 2020, Respondent performed a massage on A.M., a 32-year-old female. In preparation for her massage, A.M. undressed, laid down on a massage table, and covered herself with a draping. In the course of the massage, Respondent uncovered A.M.'s right leg and massaged her quadricep. Sexual misconduct is outside the scope of generally accepted practices of massage therapy. No massage therapist may engage in sexual misconduct with his or her patient. Facts Adduced at Hearing Respondent was educated in massage therapy, and has practiced massage therapy for roughly 13 years. As part of his education, he received education in ethics and professional conduct. He has also received continuing education as part of his Florida licensure. His education included instruction that sexual misconduct is not allowed. Respondent worked for Massage Envy at two of its Jacksonville branches, though he was released after the report of the August 28, 2020, incident. He also works as a massage therapist for the Jacksonville Jaguars professional football team. Respondent indicated that if a client raises a sexual issue during a massage, a massage therapist is instructed to give the client every opportunity to correct their pattern of behavior and/or try to divert the behavior back to the massage. If the client persists, the therapist may ask the client to stop or leave the room. Respondent testified that prior to August 28, 2020, he had not been accused of misconduct of any form in connection with his practice of massage therapy, nor had a client objected about his touching them inappropriately during a massage. There was no evidence to the contrary. A.M. was a regular client of Respondent on a generally month-to- month basis, having become a member at Massage Envy in July 2015. She received massages on a monthly basis until services were suspended for an undisclosed period due to Covid-19. The Massage Envy facility had reopened at some time prior to August 28, 2020. Respondent was A.M.’s primary massage therapist, though she was treated by another massage therapist, Ross, when Respondent was unavailable or when A.M. saw him by choice to provide specialty service. Ross was regarded as being particularly skilled in treating the neck area. A.M. and Respondent had no interaction, professional, social, or otherwise, outside of Massage Envy. A.M. and Respondent would talk during treatment. The subject matter previously varied, and A.M. may have occasionally strayed into areas that could be perceived as inappropriate, but there was nothing to cause concern on Respondent’s part that would have resulted in termination of a session. A.M. typically kept her eyes closed during treatment, occasionally falling asleep. The massages generally had their desired effect of relaxation such that A.M. was often in a “massage daze” afterwards. At some time prior to the events at issue, Respondent wrote his telephone number on the back of a Massage Envy tip envelope and gave it to A.M. The reason for Respondent providing his number to A.M. was, as is the case with many of the facts of this case, disputed. A.M. testified that due to the Covid-19 outbreak, Massage Envy had closed. She stated that Respondent told her that he had been seeing clients at their homes, and gave her his number in case she wanted him to give her a massage at her home. Respondent, on the other hand, testified that he had a favorite pair of “massage pants” that were in need of repair, and that he had given them to A.M., who is a seamstress, to have her take a look at them. Respondent stated that he gave A.M. his telephone number so that she could call him to let him know if they were worth trying to fix. A.M. acknowledged that at some point during her professional relationship with Respondent, they discussed whether she could repair the pants. However, A.M. denied that he had provided her with his number when he gave her the pants, stating that it made her uncomfortable that she was not able to contact him regarding the work that it would entail. The events of August 28, 2020, could not be more contested. This is not a case of nuanced behavior. Sexual activity occurred, or it did not occur. The testimony of each is summarized as follows:1 A.M.’s Testimony A.M. testified that she appeared at Massage Envy at 9:00 a.m. on August 28, 2020, for a scheduled 90-minute massage. She undressed and laid face down on the massage table, covered by a sheet. There was no evidence as to whether A.M. completely disrobing was her routine, but neither A.M. nor Respondent indicated it to be outside of the norm. The massages with Respondent were “mostly the same order of operation,” but on the 28th, since A.M. was sore from a workout, she asked that Respondent not do a deep massage. Respondent massaged A.M.’s back, legs, and arms without incident. During the first part of the massage, A.M. engaged in conversation with Respondent. She did not believe the discussions were sexual in nature. She told Respondent about her new fitness routine and the workouts involved. Respondent noted that that he had noticed, and that she looked really good, to which A.M. replied “oh, thanks.” In the second conversation, A.M. asked Respondent to weigh in with his thoughts about a situation in which a client asked if he should take A.M. to dinner after the completion of a job. A.M. stated that she told the client “look, I'm down to go to dinner with you, but I have to let you know that I do have a partner and he will know about this.” She stated that the prospective 1 The recitation of testimony that follows is graphic and unfiltered. In a case dependent entirely on the testimony of the only two witnesses to the event, it seems necessary to consider, in full, the testimony of the only two witnesses to the event. client said “Oh, no you got me all wrong,” decided not to go through with the work, and never spoke with her again. A.M. was curious as to Respondent’s speculation as to the client’s intentions. She also indicated that although she was in a relationship, she was open to dating other men, as long as her partner knew about it. Roughly halfway through the massage, A.M. turned over so Respondent could massage the front of her body, as was normal. Respondent began to massage the quad at the front of A.M.’s upper right leg. A.M. testified that, when Respondent started massaging her quad, instead of downward strokes along the quad towards her feet, he started to massage upward and around the top of her quad behind her upper thigh until he was touching her buttocks and her vulva. As Respondent began to touch A.M., she clenched her buttocks, and asked, “Is this a thing that's happening?” Respondent started to finger A.M.’s vagina and asked, “Is this okay?” to which A.M. replied “yes, that's fine.” Respondent continued to insert his finger into A.M.’s vagina. She remembered Respondent saying, “Damn, it's so wet and tight,” to which she replied “And smooth.” A.M. testified that as Respondent fingered her vagina with one hand, he had the other on her clitoris, but would intermittently massage the nipple and areola of her right breast. A.M. testified that Respondent again remarked about how tight her vagina was, and that she responded, “My asshole is, too.” A.M. later testified that she was shocked that the event was happening, but that “when it happened I tried to enjoy it,” and put her hands over her head and moaned. A.M. testified that she did not run or resist because “I didn't know what would happen if I did. Like, I felt very vulnerable, and, I thought, you know, like, I'll just lay here and let it finish.” Although Respondent had never given A.M. reason to believe he was violent, she testified that “he is still tall and bigger than me and muscular and I was naked. I'm 4' 11. I was very vulnerable.” At no point during the incident did A.M. tell Respondent to stop. Rather, A.M. recounted that after a while, she ultimately said, “look, I'm not going to cum from this, can you please just make sure my muscles are even,” to which Respondent stated, “I guess I have to go back to doing my job.” She remembered him continuing to finger her vagina for a bit longer before he stopped and said, “I’m sorry. I'm sorry,” to which she “thanked him” and said, “Don't be sorry. I guess people just like touching me.” As Respondent concluded, A.M. asked Respondent if he had a crush on her, and told him she “would try to be better prepared the next time.” A.M. testified that Respondent then proceeded to massage her low back from underneath. She thought he may have been wiping his hands on her. He then moved to massage her shoulders, at which time A.M. said, “oh, great, I'm going to smell like pussy juice now.” She testified that Respondent then said, “you're going have guys hawking all over you from all the pheromones.” A.M. testified that as Respondent concluded, she said a few more things because it seemed awkward, and remembered Respondent saying “I wanted to do that for a long time, but, you know, had to keep it professional.” A.M. testified that after the sexual act was concluded, she told Respondent that “I actually had a sex dream about you once, but it was no big deal.” He asked “was it one of those when you felt like you were really there?” A.M. said, “yeah,” and Respondent said, “That's awesome.” She also indicated that she asked “is this why girls at the front desk are like, oh, you were with Mike, he's so amazing,” to which he just kind of laughed. A.M. also stated to Respondent “I've always honestly come here for a massage,” to which he replied “I think my clients come back to me because I use a lot of pressure.” A.M. also testified that, again after the sexual act was concluded, she told Respondent “that one time while I was receiving a massage from Ross that he had his hands on my neck and I just wondered to myself what it would be like if he choked me.” She recounted that Respondent replied that “[w]e often wonder what our clients are thinking.” Respondent finished the massage and left the room, closing the door behind him as was normal. A.M. got dressed and headed for the front desk. She noticed a clock that read 10:59 a.m., well beyond the scheduled 90- minute massage. A.M. testified that she saw Respondent in the hallway, and said “Bye. See you next time.” She testified that she was in a “massage daze” as she walked to the front desk to check out. She spoke with the manager, telling her that she felt very relaxed. She paid for the massage, and left a tip for Respondent. She did not say anything else to anyone about the massage before she left the premises. As to the reason for not alerting anyone at Massage Envy to the incident, A.M. testified that “I was confused. You know, like, obviously, I said I wasn't injured. So, maybe, you know, I thought to myself, oh, maybe that's a thing that happened and I can get over it.” Respondent’s Testimony A.M. had a 9:00 a.m. appointment with Respondent on August 28, 2020. A.M. went to the massage room alone, undressed, and laid face down on the massage table. She was draped with a sheet. Respondent testified that the appointment was normal. He greeted A.M., asked if there was anything that needed particular attention, and tried to get an understanding of what she was looking for in the massage that day. A.M. was sore from exercise, and did not want a deep massage, as she typically received. She did request a full body massage. From what he could recall, Respondent performed a “normal service,” with no specific out of the ordinary requests. Respondent has an established routine when performing massage, working around the body in a clockwise pattern to ensure that he does not skip a body part or miss something along the way. Patients typically start lying on their stomachs and, about halfway through a session, turn over. The general pattern is the same on both sides. That has been his practice since therapy school. Respondent testified that A.M.’s massage as she was positioned on her stomach was uneventful, and conversation routine. About midway through the massage, A.M. turned over, which was the normal course for a full body massage. Respondent testified that “the conversation quickly changed and it went into one of that was off the topic of massage of what we had been talking about.” He recounted three topics of conversation during the course of A.M.’s massage that started to get “off track.” First was the discussion, also a topic of A.M.’s testimony, regarding a client she had done some work for. Respondent stated that A.M. wanted his advice because “you're a guy, you might understand why he reacted this way.” Purportedly, to Respondent’s recollection, after A.M. completed the work, the client asked A.M. to dinner “and other things.” Respondent indicated that A.M. told the client “yeah, I'm cool with that, but I have to ask my boyfriend,” which caused the client to be taken aback. A.M. was curious about the client’s reaction, and wanted Respondent’s opinion as to his reaction. Respondent testified that “I guess it's because he wasn't expecting the response about your boyfriend.” Respondent testified that the question was off the topic of massage, and “a little strange and a little weird.” However, it was not to the point of what he perceived as “crossing that line.” Respondent testified that he redirected the conversation, with mixed success, back to what was needed in terms of the massage, but did not report the conversation to any other employee or manager at Massage Envy. Respondent testified that at another point in the massage, A.M. advised him that she had “a wet dream” in which Respondent performed oral sex on her. Respondent testified that he again tried to redirect the conversation to one of massage. A.M. had been a client quite a long time, and he was giving her every opportunity to continue to be a client. Finally, Respondent testified that when he started to work on A.M.’s neck, she advised him that when she was worked on by Ross, a massage therapist known for his neck work, she wondered what it would be like for him to choke her. Respondent perceived the choking to be for sexual gratification. As “shocking” as he perceived the comment to be, Respondent testified that “I tried to redirect it towards massage,” saying “Ross is good at neck work and a lot of his clients see him for neck work.” He was close to the end of the massage, tried to quickly finish the massage and said, “okay, hey, that's it, we're done.” Respondent testified that as he went to walk out of the room, A.M. noted that he forgot to work her pectoralis muscles on the upper part of her chest. Although he was already running over the scheduled time, he came back, massaged both sides for a few minutes, and left the room. It is Respondent’s normal custom to leave the room after a massage so the client can dress in privacy. Respondent testified that as A.M. left, “she said bye to me, and she goes I'll see you later.” She left him a “generous” tip -- over $30. Respondent testified that he found the nature of the conversations with A.M. to be “shocking.” However, he did not mention them to either his coworkers or management at Massage Envy. He testified that, in retrospect, he should have left the room and gone directly to management. He indicated that clients discussing topics that may be inappropriate -- politics, religion, things of a sexual nature -- are not uncommon. He tries to act professional and go about his business. He stated that, as he goes from client to client to client throughout the day, “[y]ou never think it's going to go to something like this or this point.” Respondent denied touching on or near A.M.’s vagina. Respondent denied touching A.M.’s breasts, though he did massage her pectoralis muscles along the collarbone and the upper path of the muscle tissue. Respondent denied that he experienced any type of sexual arousal during A.M.’s massage. Post-Incident Events - A.M. On August 31, 2020, while A.M. was masturbating, the events of August 28, 2020, came back to her. She came to the conclusion that what happened was wrong. Up until that point, A.M. had not told any other person about the alleged incident. The next day, September 1, 2020, A.M. went to Massage Envy to cancel her membership. She did not tell the representative about her allegations regarding Respondent. Massage Envy did not permit A.M. to cancel her membership that day. However, they allowed her to freeze her account. She could then cancel within the time needed to cancel without having to pay for another month.2 That same day, after her effort to cancel her membership proved unsuccessful, A.M. sent two text messages to Respondent. In her first, sent at 12:59 p.m., she said “Hey Mike, it’s A.M.,” to which Respondent replied at 2:12 p.m. “How are you?” A.M. then responded at 4:43 p.m.: I’m not okay I’m sad and angry over what happened Friday. I feel taken advantage of regardless of anything I said. None of what I said was an invitation to do that to me. I was in a very relaxed state of being. I’m disappointed that I built trust with you and that I paid you to do this to me. This was something I routinely made part of my fitness 2 Despite having frozen her membership, her next month’s dues were still withdrawn from her account. Massage Envy was apologetic and cancelled the membership. A.M. did not ask for a refund, and it is unclear, and ultimately irrelevant, whether she received one. and wellness the past several years. I had to cancel my membership today. I really hope you don’t do this with anyone else. A.M. then blocked Respondent from her contacts, though Respondent indicated that he did not try to reply. On September 2, 2020, A.M. discussed the incident with her friend, Dr. Ferrer-Bruker. The initial contact between A.M. and Dr. Ferrer-Bruker occurred that afternoon, when A.M. asked to discuss something “heavy.” They spoke around 6:00 or 7:00 p.m. Dr. Ferrer-Bruker recalled that A.M. told her that she received a massage from her regular massage therapist, and that he “fingered her,” and that she regretted that she did not do something different as a reaction at the time. Dr. Ferrer-Bruker tried to comfort A.M., and recommended that she go to the police, a discussion confirmed by A.M. Dr. Ferrer-Bruker remembered little else of the conversation. After having spoken with Dr. Ferrer-Bruker, A.M. filed a police report with the Jacksonville Sheriff's Office (“JSO”) later in the evening on September 2, 2020. At 8:53 p.m., A.M. texted Dr. Ferrer-Bruker that “[t]hey are sending a police officer to me now.” The JSO conducted an investigation of the August 28 incident. A.M. testified that she recalled telling the police that she was shocked and terrified and scared at the time the incident was going on. However, she testified that Respondent had never previously given her reason to believe he was violent, nor had he made her feel threatened in a physical manner. Between the time A.M. made the police report and the date she reported the incident to Massage Envy, she stated that she discussed the incident with other persons. None of those persons testified and there is no other evidence of any such discussions. On September 14, 2020, A.M. reported the incident to Massage Envy. She advised the manager, Katherine Petrino, that she had a massage with Respondent on August 28, 2020. She reported that the massage started as normal, but as Respondent starting to massage her quad, he instead fingered her vagina. Later that day, A.M. emailed Ms. Petrino with an account of the incident that, despite her statement that her “[m]emory is foggy on the sequence of what else was done and said,” differed little, if at all, from her testimony. A.M. was then contacted by Redirect, a third-party investigator for Massage Envy. She restated the events to the representative. Post-Incident Events - Respondent About two weeks after August 28, 2020, Ms. Petrino, the clinic manager for Massage Envy - Harbor Village, advised Respondent that there was a complaint against him for inappropriate touching. She did not give details. Respondent was placed on suspension until further notice. A couple of days later, Respondent was contacted by the third-party investigator, and gave a statement. He testified that he told the investigator how the massage went, what body parts were worked on, and described the conversation. He advised of having received both of A.M.’s text messages on September 1, 2020, and that he did not respond to her second, lengthier message. He indicated that his discussion with the investigator was consistent with his statements at the hearing and otherwise. Social Media Starting around December 4, 2020, A.M. posted her thoughts regarding the incident on Instagram. The posts, with a few exceptions, were not dated. The text of the first post was as follows: TW: Sexual Assault I keep thinking about how the scariest thing I feel like I did this year was pick up the phone to report my abuser. I felt the most shame because I didn't think anyone would believe me because a) I'd known them so long b) they were well-loved at the place and c) I'm a sex pot so maybe it would just be “on-brand” to have “let it happen and regret it” (second quotes are actual words from a JSO officer in 2020). Please, the “brand” is pleasure. The brand is consent. The brand is joy, not confusion and fear and freezing and trying to just say anything to get through a situation. The brand is context and that it never should have happened in the first place. How sad is it that I just said the scariest thing was reporting my abuser and not the fact that it happened at all? Life is not happy and positive as a default. I've never been fake about anything, just learned that people love to see joy on here. Anyway, I am very grateful for this escape and the support I have gotten from my beautiful partner, friends, and family. Most of all grateful for myself because I'm mf-ing that bitch. A second post, also undated, provides that: TW: Sexual Assault I was gonna blame a man for molesting me and stressing me the fuck out and sending me into uncontrollable depression for setting me behind on all of my work but the reality is I'm actually just celebrating the fact that I've made it, I pushed through, and I am THAT bitch who was able to crush three custom wedding gowns in a week so ??????????? Try not to fuck with me THANKS!!! ?? Unlike the JSO investigation, the question here is not one of consent. If the acts alleged occurred between A.M. and Respondent, acting in the course of his licensed profession, they constitute a violation of section 480.0485, whether they were engaged in between two consenting adults, or whether they were forced upon the client entirely without consent. In short, if the acts occurred, they violated the massage therapy practice act. The testimony of Dr. Ferrer-Bruker, who was not a witness to any of the alleged acts of Respondent, played no direct role in the determination of the outcome in this matter. A.M.’s testimony was forceful and emotional. Despite her self- perceptions and her “brand,” she was precise about the facts, and adamant as to the role of consent in a sexual encounter. Respondent’s testimony was equally forceful, but more reserved in delivery. He testified that he loved his family and his job, that he had built a reputation and a career over many years, and performed at a high level. He stated that he would not jeopardize his work, his reputation, and his clients’ trust -- in short that he “would never do that, to sit there and throw it away on something like this.”
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 Complaint against Respondent, Michael E. Maloy, L.M.T. DONE AND ENTERED this 16th day of March, 2021, in Tallahassee, Leon County, Florida. S GARY EARLY 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 16th day of March, 2021. COPIES FURNISHED: T. A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Ryan Sandy, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Kama Monroe, JD, Executive Director Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 James C. Poindexter, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Kristen M. Summers, Esquire Prosecution Services Unit Department of Health 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 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 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.