The Issue The issues for determination in these consolidated cases are whether Petitioner's applications for approval as a continuing education provider should be approved.
Findings Of Fact Petitioner, Carol Rangle Gilmore, is a licensed massage therapist in the State of Florida. Petitioner also holds a certificate to practice massage therapy which was issued by the city of San Diego, California. On February 12, 1991, Petitioner received a certificate from the Mueller College of Holistic Studies in San Diego, California, stating that Petitioner had completed the prescribed course of training in anatomy, physiology, and human relations, and passed a creditable examination in the art of massage. Petitioner completed 9 credit hours in anatomy, 9 credit hours in physiology, 9 credit hours in history, theory and ethics, and 75 credit hours in practice and demonstration, for a total of 100 credit hours of instruction at Mueller College of Holistic Studies. The certificate of completion issued to Petitioner by Mueller College of Holistic Studies was as a Massage Technician. Mueller College of Holistic Studies was not at the time of the issuance of Petitioner's certificate of completion in 1991, nor is Mueller College of Holistic Studies now, a Board- approved massage school for purposes of licensure in Florida under Rule 64B7-32.003, Florida Administrative Code. On September 16, 1992, Petitioner received a certificate of completion of a course of 1000 hours of holistic studies from the Desert Resorts School of Soma Therapy (Desert Resorts) in Desert Hot Springs, California. Petitioner's certificate of completion from Desert Resorts states that the course of study consisted of a 100-hour massage technician certificate course (which was credited from Mueller College), and 900 hours of "postgraduate work" in anatomy, physiology, acupressure, nutrition, business ethics, history, theory, and practice of both Eastern and Western forms of massage, specializing in specific forms used in various types of bodywork. Petitioner's transcript from Desert Resorts reflects the 100 hours of credit for her massage technician course from Mueller College, and 48 credit hours in each of the following subjects: Acupressure I; Acupressure II; Advanced Massage I (Aromomatherapy, Manual Lymph Drainage); Advanced Massage Therapy II (Sports Massage); Anatomy & Physiology; Kinesiology; Communication Skills & Ethics; Body/Mind Integration; and Health and Nutrition. Additionally, Petitioner's transcript from Desert Resorts reflects 468 credit hours in Assessment & Remediation. Petitioner's certificate from Desert Resorts designated her a holistic health practitioner. Desert Resorts School of Soma Therapy was not at the time of the issuance of Petitioner's certificate of completion in 1992, nor is Desert Resorts now, a Board-approved massage school for purposes of licensure in Florida under Rule 64B7-32.003, Florida Administrative Code. Subsequent to completion of her studies at Mueller College of Holistic Studies and Desert Resorts School of Soma Therapy, Petitioner applied for licensure as a massage therapist in the State of Florida. Rule 64B7-32-002, Florida Administrative Code, requires graduation from a Board-approved massage school for licensure eligibility in Florida. Pursuant to Rule 64B7-32.003, Florida Administrative Code, the minimum requirements for Board approval of a massage school includes 500 classroom hours of coursework as follows: 150 hours in Anatomy and Physiology; 225 hours in Basic Massage Theory and Clinical Practicum; 10 hours in Florida Statutes/Rules and History of Massage; 15 hours in Theory and Practice of Hydrotherapy; 97 hours in Allied Modalities; and 3 hours in HIV/AIDS. Because neither Mueller nor Desert Resorts were Board-approved massage schools, Petitioner, in order to meet Florida licensure eligibility requirements, was required to transfer credit through a massage school approved by the Board. To meet Florida requirements, Petitioner was further required to complete coursework in HIV/AIDS, Florida statutes and rules, and the history of massage therapy. Petitioner successfully completed the Florida licensure eligibility requirements by receiving further instruction at the Core Institute in Tallahassee, Florida, a Board-approved massage school, and by completing her HIV/AIDS course at another Board-approved massage school in Atlanta, Georgia. Petitioner's coursework from Mueller and Desert Resorts was transferred through, and included in, her credited hours for licensure eligibility in Florida by completion of her instruction at the Board-approved massage schools she attended in Florida and Georgia. As indicated above, subsequent to her licensure as a massage therapist in Florida, Petitioner applied to the Board for approval as a continuing education provider for six courses in the following subjects: professional ethics, manual lymph draining, reflexology, aromatherapy, sports massage, and HIV/AIDS. For several years Petitioner has been preparing and offering correspondence or home study courses related to massage therapy under the corporate name Tranquility, Inc. Petitioner's correspondence courses are used as part of the curriculum of Applied Kinesiolgy Studies, a school of massage/bodywork in Reston, Virginia. Applied Kinesiolgy Studies is not a Board- approved massage school. Petitioner's home study courses are also used as part of the continuing education program at the Alternative Conjunction, which is a Board-approved school of massage in Lemoyne, Pennsylvania. The requirements for approval as a continuing education provider are set forth in Rule 64B7-28.010, Florida Administrative Code, as more fully set out below. There is no dispute that Petitioner is ineligible for approval as a continuing education provider under Rule 64B7-28.010(2)(c )1., 2.a., or 2.b., Florida Administrative Code, in that Petitioner does not hold a bachelor's degree from a college or university accredited by the Department of Education, has not had a minimum of two years teaching experience in the subject matter to be offered, and has not taught the courses three times in the past two years before a professional convention, professional group, or at a massage therapy school. Although Petitioner's correspondence courses are offered through at least two massage therapy schools, Petitioner does not serve on the faculty of any massage therapy school, and does not present classes of instruction at any massage therapy school. The dispute in this matter arises in regard to the application of Rule 64B7-28.010(2)(c ) 2.c., Florida Administrative Code, which allows for approval as a continuing education provider if a person has graduated from a school of massage which has equivalency to a Board-approved school, has completed three years of professional experience in the practice of massage, and "has completed specialized training in the subject matter and has a minimum of two years of practical experience in the subject." Petitioner takes the position that her coursework at Desert Resorts, which includes 900 hours of "postgraduate work," constitutes "specialized training" for the purposes of approval as a continuing education provider under Rule 64B7-28.010, Florida Administrative Code. Respondent takes the position that Petitioner's "postgraduate" coursework at Desert Resorts in California was not specialized training, but primarily basic massage training. Moreover, Respondent contends that Petitioner's training was not conducted at a Board-approved massage school, and the credit for this training was already considered as part of the fulfillment of Petitioner's basic licensure eligibility requirements which was afforded Petitioner by the Board approved schools she attended in order to obtain licensure in Florida. A comparison of the educational requirements for licensure in Florida found in Rule 64B7-32.003, Florida Administrative Code with the coursework completed by Petitioner at Mueller College and Desert Resorts Schools shows that: Petitioner completed 75 hours of practice and demonstration at Mueller College and 468 hours of assessment and remediation at Desert Resorts, a combined 543 hours which correspond to the requirements in basic massage theory and clinical practicum. The transcript shows that 318 of the 500 hours Petitioner completed in excess of the Florida minimum requirements were in clinical practicum, and not in the subjects in which Petitioner seeks specialized training designation and continuing education provider approval. Petitioner's training in lymphatic systems is part of the Florida requirement for 150 hours of study in anatomy and physiology, and is not specialized training. The coursework credited by Desert Resorts School to meet the requirement of 150 hours in anatomy and physiology does not total 150 hours, but 109 hours as follows: Massage Technician 13 hours; Anatomy and Physiology 48 hours; Advanced Massage/Active 48 hours. Accordingly, when Petitioner's credits were transferred to a Florida approved massage school, additional credits were needed to meet the Florida anatomy and physiology requirements, which Petitioner would have had to take at the Core Institute although her transcript from Core was not submitted. 144 hours coursework taken at the Desert Resorts School are not equivalent to any of the Florida requirements, and include 48 hours of study in each of the following: communication skills and ethics, body/mind integration, and health and nutrition. None of these courses relate to the six topics of continuing education courses for which Petitioner seeks approval, and are therefore irrelevant. Of the 500 excess hours of study taken by Petitioner at Desert Resort, 462 of those hours do not constitute advanced or specialized training in manual lymph drainage, aromatherapy, sports massage or HIV/AIDS. There is nothing on the transcripts that indicated any study in reflexology, for which Petitioner seeks approval as a continuing education provider and there is no indication from the transcript that reflects study in HIV/AIDS. The only training Petitioner has demonstrated in HIV/AIDS is the continuing education courses necessary to renew her license. The documentation Petitioner provided does not demonstrate any specialized training in addition to the transcripts from which she was granted initial licensure in Florida, and there is no evidence other than what was reflected on Petitioner's transcripts in the areas of manual lymph drainage, relexology, aromatherapy, or sports massage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for approval as a continuing education provider. DONE AND ENTERED this 6th day of July, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1998. COPIES FURNISHED: Carol Rangle Gilmore, pro se 520 107th Avenue North Naples, Florida 34108 Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker, Executive Director Board of Massage Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent became interested in massage therapy after receiving such therapy in a military hospital while he was in the United States Marine Corps. He was discharged from the Marine Corps in August of 1968. Approximately three years later he enrolled in a massage therapy course. He completed 1,000 hours of coursework. In or around December of 1972, Respondent received a license to practice massage therapy in the State of Florida. He has remained licensed, without interruption, since that time. His license number is MA 0002715. During the period that he has been licensed, Respondent has performed an average of a 1,000 massages (approximately 500 on females and 500 on males) per year. At no time has Respondent ever been disciplined by the Board of Massage. No formal accusations of sexual misconduct have ever been made against Respondent other than those made in the instant case. Respondent has no criminal record. For the first several years after receiving his license Respondent worked for others. Since about 1976, he has been self-employed. He currently works with his wife, who is also a Florida-licensed massage therapist. Respondent has an "out-call" practice, where he goes to the client (usually at the client's residence) to perform therapy as opposed to the client coming to him. He brings with him a special table on which the client is positioned during the therapy session. Respondent gives his clients the option of receiving their massages clothed or unclothed. He tells them that they may wear whatever they need to be comfortable. Respondent makes every effort to keep his clients properly draped while they are being massaged. On a daily basis, Respondent is alone with female clients who, but for the drapes covering them, are unclothed. Among the female clients on whom Respondent has performed massage therapy are Alexsandra Lopardo and her best friend, Donna Arenas. Lopardo was the first of the two to use Respondent's services. Lopardo is a hair stylist. She has been receiving massages for over 20 years. Respondent had been recommended to her by one of her clients. Lopardo received massage therapy from Respondent on several occasions from November of 1993, 2/ to January of the following year. 3/ On each occasion Lopardo was naked during the massage except for the drapes Respondent used to cover her. Respondent came to Lopardo's home, which she shared with her husband and her stepson, to perform the therapy. The living room of the home was the site of all but the last therapy session. Lopardo paid from $50.00 to $60.00 for each massage. During the first therapy session, when Lopardo was on her back, Respondent, while massaging her neck and shoulders, kissed her on the forehead. The kiss took Lopardo by surprise and embarrassed her. She responded by telling Respondent not to "get fresh" with her. There were no similar incidents during the remainder of the therapy session. Lopardo believed that she had "established her boundaries" and that Respondent would not make any further advances toward her. She therefore used Respondent's services on subsequent occasions to help alleviate discomfort she was experiencing in her arms and shoulders. All but the last of these subsequent therapy sessions were without incident. Lopardo thought that her friend Arenas would also benefit from massage therapy. She therefore, as a Christmas present, gave Arenas a gift certificate that she had purchased for a massage from Respondent. Lopardo told Arenas of the kiss on the forehead that she had received from Respondent during her first massage therapy session the month before. Lopardo pointed out, however, that after she had expressed her displeasure to Respondent about the incident, Respondent had not engaged in any similar conduct. 4/ Arenas used the gift certificate to receive a massage from Respondent on January 10, 1994. 5/ The massage was given in one of the bedrooms of Lopardo's home. 6/ Arenas was naked during the massage except for the drapes Respondent used to cover her. While massaging Arenas' inner thighs, Respondent mentioned that massages energized and stimulated, and enhanced the performance of, certain parts of the body 7/ and then stated that he was not going to get into it any further because the door to the room in which the massage was being given was not closed all the way. In addition to making these sexually suggestive remarks, Respondent also kissed Arenas on the back. Arenas' reaction was to instruct Respondent to "stick to the massage." Respondent complied with the request. He engaged in no other inappropriate conduct during the massage. Lopardo's last therapy session with Respondent took place later that same day, January 10, 1994, in the same room where Arenas had received her massage. During this therapy session, Respondent kissed Lopardo on the ankle. Lopardo was dumbfounded by Respondent's action. She was also concerned for her safety inasmuch as there was no one else in the home other than her and Respondent. She thought it best to simply ignore what Respondent had done and let him finish the massage, which, fortunately, he did without any further incident. After the massage, Lopardo paid Respondent, by check, $60.00 for the therapy session. As Respondent was leaving the Lopardo home, Lopardo advised him that Arenas had left a check for him. The check was in the amount of $20.00 and was intended as a tip. 8/ On the check, Arenas wrote, "Thanks Norm," followed by an exclamation point, under which she drew a "smiley face." Arenas made out the check after her massage. 9/ Arenas left a tip for Respondent because she thought it was "proper etiquette" and if she failed to do so it might place her friend, Lopardo, in an "uncomfortable situation." On the evening of January 10, 1994, after they had both received their massages, Lopardo and Arenas spoke with one another over the telephone. 10/ During their telephone conversation, they each revealed to the other that they had been kissed by Respondent while being massaged earlier that day. On or about March 14, 1994, Lopardo filed with the Department a written complaint against Respondent. In her complaint, Lopardo stated the following: I would like to preface this statement by saying that it is not my wish that Norman lose his license to massage. I feel that intervention by the proper authorities is in order though. I first used Norman's services on or about December 13th 1993. 11/ His knowledge and technique are notable and somewhat impressive, however in the middle of the massage he somehow felt inclined to kiss me on the forehead. I reprimanded him and though Norman suffers from horrible body odor there were no further problems that day, and I felt there wouldn't be any in the future. On Jan. 10th 1994 while Norman was massaging me he must have had the same inappropriate urge. This time he kissed me on the ankle. I was so shocked that I wasn't able to do anything. On further reflection I decided that it was totally inappropriate and unprofessional behavior. 12/ I trusted Norman to be professional. I don't feel that it is my responsibility to reprimand and correct behavior, but I do feel that it is my duty to report less than professional behavior. I know that the state tries to enforce proper standard of etiquette. If not for Norman's overzealous behavior and horrible body odor problem I might still use his service. The Department investigated the allegations made by Lopardo in her complaint. The investigation was conducted by Department investigator Steve Yarbrough. As part of his investigation, Yarbrough interviewed Lopardo. Lopardo told Yarbrough that she knew of "other women" who had complaints about Respondent. She declined, however, to reveal the identities of any of these "other women" other than Arenas because she wanted to protect their privacy. These unidentified women were clients of Lopardo's and had spoken to her in confidence. Lopardo felt an obligation to maintain the confidentiality of her client's disclosures. She did not even tell Arenas about them. By letter dated April 29, 1994, Yarbrough notified Respondent of the complaint that Lopardo had filed against him. During a conversation that he had with Yarbrough shortly after receiving the letter, Respondent denied the allegations of misconduct made by Lopardo against him. Respondent asked Yarbrough to contact any of his other clients and inquire about Respondent's conduct. 13/ In response to Respondent's request, Yarbrough suggested that Respondent himself contact these other clients and have them submit a written statement to the Department. Respondent followed Yarbrough's suggestion. At Respondent's request, several of his clients, on his behalf, wrote letters of support and sent them to the Department. By letter dated May 17, 1994, Respondent responded in writing to Lopardo's complaint. In his letter, he "categorically den[ied] all charges" Lopardo had made against him. As noted above, an Administrative Complaint issued against Respondent on or about October 24, 1994. At no time prior to his receipt of the Administrative Complaint was Respondent made aware of Arenas' allegations of misconduct against him. Lopardo and Arenas have not conspired to falsely accuse Respondent of wrongdoing. On or about May 2, 1995, the Department provided Respondent with a subject matter index containing a listing, by the alleged violation(s) involved, of all final orders issued from January 1, 1992, to April 21, 1995, by the Board of Massage in disciplinary cases. The Department has also identified for Respondent, and provided him with copies of, those orders listed in the subject matter index which involve allegations of sexual misconduct.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Massage enter a final order finding Respondent guilty of the violations of subsection (1)(k) of Section 480.046, Florida Statutes, alleged in the Amended Administrative Complaint, and disciplining him for having committed these violations by fining him $750.00 and suspending his license to practice massage therapy for a period of three months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of August, 1995. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings 21st day of August, 1995.
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 are whether Respondent violated Section 480.046(1)(c), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with the duty to regulate the practice of massage therapy in Florida. At all time relevant to this proceeding, Respondent was licensed to practice massage therapy, holding license No. MA0020209. In September 1997, Respondent provided massage therapy treatment on three occasions to a client, M.J. The treatment was intended to be therapeutic for injuries suffered by M.J. in an automobile accident. The last of the massage therapy sessions occurred on September 19, 1997, at the home of M.J.'s mother. M.J. subsequently filed a formal complaint with the Duval County Sheriff's Office. The complaint alleged that Respondent touched M.J.'s breast and nipple inappropriately during the September 19, 1997, massage therapy session. On November 24, 1997, the State Attorney, in and for Duval County, Florida, filed an Information, charging Respondent with misdemeanor battery in violation of Section 784.03(1)(a), Florida Statutes. In a jury trial on April 15, 1998, Duval County Court Case No. 97-66371 MM, Respondent was convicted of simple battery, a criminal violation of Section 784.03(1)(a), Florida Statutes. The above-referenced criminal conviction arose directly out of Respondent's massage therapy session with M.J. on September 19, 1997. Respondent would not have been charged with and convicted of simple battery but for Respondent's massage therapy practice on M.J. Respondent had to pay a $200 fine and $115 in court costs as a result of his criminal conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $500 and assessing costs of investigation and prosecution. DONE AND ENTERED this 10th day of October, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of October, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Stop 39 Tallahassee, Florida 32308 Stanley Michael Carroll 1535 San Juan Avenue Jacksonville, Florida 32210 William H. Buckhalt, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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 are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of chapter 480, Florida Statutes, as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The following Findings of Fact are based on the testimony presented at the final hearing, exhibits accepted into evidence, and admitted facts set forth in the pre-hearing stipulation. Petitioner is the State agency charged with regulating the practice of massage therapy pursuant to section 20.43, Florida Statutes; chapter 456, Florida Statutes; and chapter 480, Florida Statutes. At all times material to the Complaint, Respondent was licensed to practice massage therapy in Florida since April 27, 2016, having been issued license number MA81902. Respondent’s address of record is 3830 Williamsburg Park Road, Jacksonville, Florida 32257. She also maintains an address of 121 East Norwood Avenue, Apartment C, San Gabriel, California 91776. Respondent moved from her native country, China, to the United States in 2012. Respondent’s native language is Mandarin Chinese and her ability to communicate in English is very limited. The JSO Vice Unit is the law enforcement office which investigates prostitution at massage therapy establishments in Jacksonville. Detective N.E. has been a civilian law enforcement officer for approximately 13 years. He was working in the JSO Vice Unit on June 29, 2017. As a member of the vice unit, Detective N.E. has conducted approximately 10 to 20 undercover prostitution investigations of massage therapy establishments. On or about June 29, 2017, JSO conducted an undercover prostitution investigation at Luxury Massage located at 3830 Williamsburg Park Road, Suite 4, Jacksonville, Florida. Detective N.E. entered Luxury Massage undercover, posing as a client. Detective N.E. requested a 30-minute massage from Respondent, for which he paid Respondent $50. Respondent escorted Detective N.E. to a massage room where Detective N.E. completely disrobed and laid face down on the massage table. As Detective N.E. lay on his stomach, Respondent began performing a massage on him. A towel was covering him as he lay on his stomach. Respondent massaged Detective N.E.’s back, and she later asked him to flip over onto his back, which he did. While Detective N.E. was on his back, Respondent began massaging his chest. At some point, Respondent pointed to Detective N.E.’s penis. Then Detective N.E. asked Respondent “is $60 good?” Respondent nodded her head indicating, “yes.” Detective N.E. continued to ask Respondent questions, for example, whether Respondent would use oil and Respondent verbally responded, “yes.” When asked whether she had towels to avoid making a mess, Respondent again verbally responded, “yes.” Although Respondent did not testify at hearing, Respondent’s verbal responses were recorded on a concealed recording device as part of the investigation. At hearing, Detective N.E. testified that Respondent grabbed his penis after she pointed to it. However, there was no allegation that Respondent touched Detective N.E.’s penis in the police report, which was prepared following Respondent’s arrest. On cross-examination, Detective N.E. explained that Respondent’s touching of his penis is not routinely included in the police report. The undersigned finds it unusual that touching of genitalia would be excluded from a police report when conducting a prostitution investigation. Detective N.E.’s testimony on this point is not accepted. Respondent denied that she engaged in any sexual activity in her response to the Complaint. Based on the totality of the circumstances, the undersigned finds that Respondent offered to massage Detective N.E.’s penis for $60.00. After the encounter, Detective N.E. gave a signal and Respondent was arrested by other law enforcement officers who came on the scene. Respondent was positively identified by Detective N.E. on the scene and at the final hearing. Katelin Reagh is a licensed massage therapist and based on her education, training, and experience, she is accepted as an expert in massage therapy. Ms. Reagh opined that offering to massage a patient’s genitalia is not within the scope of practice for massage therapy. As noted in the deposition testimony of Ms. Reagh, there is no accepted practice within the scope of licensed massage therapy that allows a therapist to ever touch, or offer to touch, the genitalia of a patient. Respondent’s actions on June 29, 2017, were outside the scope of generally accepted treatment of massage therapy patients. Respondent used the massage therapist-patient relationship to attempt to engage Detective N.E. in sexual activity when she offered to massage Detective N.E.’s penis, by pointing at the detective’s penis and agreeing to accept $60 payment for the service. There is no evidence that Respondent has had any prior discipline imposed against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Massage Therapy, enter a final order finding the following: Ms. Fengyan Liu, L.M.T. in violation of section 480.0485 and rule 64B7-26.010; Revoking her license to practice massage therapy; Imposing a fine of $2,500; and Assessing costs in an amount to be determined by the Board. DONE AND ENTERED this 16th day of November, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2018.
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 (1) Whether Respondent, Thomas Oakley Miller, L. M. T., used his massage therapist-patient relationship to induce or attempt to induce Patients J. G., K. L. or J. F. to engage, or to engage or attempt to engage, Patients J. G., K. L. or J. F. in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of Patients J. G., K. L. or J. F. thereby violating Subsection 480.046(1)(o), Florida Statutes, by violating Section 480.0485, Florida Statutes, and Florida Administrative Code Rules 64B7-26.010(1), (2), and (3); (2) Whether the alleged sexual activity or attempts at sexual activity with Patients J. G., K. L. or J. F. occurred in Respondent's massage establishment, thereby violating Subsection 480.406(1)(o), Florida Statutes,1 by violating Florida Administrative Code Rules 64B7-26.010(1), (2), and (3); and (3) Whether Respondent engaged in gross or repeated malpractice or failed to practice massage with that level of care, skill, and treatment which is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumstances when providing massage therapy to Patients J. G., K. L. or J. F., thereby violating Subsection 480.046(1)(h), Florida Statutes.
Findings Of Fact Based on stipulations, official recognitions, and oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of massage therapy. Respondent is a Florida-licensed massage therapist. His license is numbered MA 0029801. He is subject to the regulatory and disciplinary jurisdiction of Petitioner. At all times material, Respondent owned and operated Calm Palm Massage Therapy, a licensed massage establishment. Calm Palm Message Therapy holds license number MM 0010166. Respondent in his capacity as owner-operator of Calm Palm Massage Therapy is subject to the regulatory and disciplinary jurisdiction of Petitioner. Petitioner's Administrative Complaint contains allegations related to complaints filed with Petitioner by four patients of Respondent: J. G., K. L., B. G. and J. F. No evidence was presented relating to the complaints of Patient B. G. As a result, the issues of fact to be litigated are based on alleged violations predicated on complaints made by three patients: J. G., K. L. and J. F. Patient K. L. Patient K. L. is a licensed massage therapist with extensive professional experience. Patient K. L. had three massage therapy sessions with Respondent during the months of October and November 2000. During the third massage therapy session, while Patient K. L. was in a relaxed, sleepy state, and not paying particular attention to what Respondent was doing, Respondent began kissing Patient K. L. on her upper inner thigh and pubic hair. When Patient K. L. became aware that Respondent was kissing her upper inner thigh and pubic hair, she objected and the activity ceased. Respondent's kissing Patient K. L.'s upper inner thigh and pubic area was likely to cause erotic arousal. Furthermore, this conduct by Respondent constitutes sexual activity and is outside the scope of the practice of massage or massage therapy. Respondent acknowledged that his hand was in Patient K. L.'s pubic hair. He attributes this "accidental" touching to the fact that Patient K. L. was particularly flexible and capable of being stretched beyond normal limits allowing his hand to slip past the junction of her leg and groin. Respondent telephoned Patient K. L. the following day and apologized for kissing her in the pubic area. He made a written apology, dated November 20, 2000, which acknowledged being "carried away" and "inappropriate" touching. Patient J. G. Patient J. G. is a 51-year-old, licensed massage therapist. She has been licensed since 1999. She first became acquainted with Respondent while she attended massage therapy school. As a part of her practical massage therapy education, she and Respondent gave each other massages while she was in school. From February through April 2000, Patient J. G. availed herself of Respondent's professional massage therapy services. During two sessions, in April 2000, Respondent caused his lips to touch Patient J. G.'s lips, touched other parts of her face with his lips, and kissed her on the forehead. On the occasion of the second massage and more overt kissing of her face and lips, Patient J. G. objected and complained that the massage "was not right." She further commented to Respondent that, "we just learned in school about ethics and morality and what you have done, you are over the line. This is not right. This doesn't feel right." Subsequent to this final massage, Respondent sent Patient J. G. a $30 refund and a note. The note contains references to "sexuality" and "sexual issues," and Respondent indicates that, "I intend no offense to women," but the note is not incriminatory. Patient J. G. testified that she did not believe that Respondent's brushing and kissing of her face and lips during the referenced massages was intended to seduce her or induce her to engage in sexual activity. Patient J. F. While Patient J. F. was a student at the Florida Academy of Massage Therapy, she sought Respondent's assistance as a tutor preparing Patient J. F. for her massage examinations. In September 2000, Patient J. F. was giving Respondent a full body massage as a part of her tutorial experience. During the massage, Respondent began moaning and groaning. This made Patient J. F. feel uncomfortable. Later in the massage, Respondent fell asleep. When Respondent's massage was concluded, Patient J. F. mentioned that her shoulder was bothering her. Respondent attempted to massage Patient J. F.'s shoulder while both were standing. Patient J. F. asked Respondent not to massage her shoulder; however, Respondent continued to massage her shoulder pinning her against a wall and trapping her against the wall with his lower torso. Because of Respondent's superior size and strength, Patient J. F. was unable to escape. She repeatedly asked Respondent not to massage her shoulder. He finally stopped when she said that she had to call her sister. Patient J. F. believed that Respondent was attempting to engage her in sexual activity. The massages which took place in 2000 with Patients K. L., J. G., and J. F. occurred in Respondent's massage establishment known as Calm Palm Massage Therapy. The deposition testimony of Jennifer Mason and her opinions contained therein are accepted as "expert" testimony as contemplated by Section 90.702, Florida Statutes. It is never appropriate for a massage therapist to massage, kiss or touch a patient's genital areas. It is never appropriate for a massage therapist to kiss any part of a patient's body.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Health, Board of Massage Therapy, enter a final order finding that Respondent violated Subsection 480.046(1)(o), Florida Statutes, by violating Section 480.0485, Florida Statutes; Subsection 480.046(1)(h), Florida Statutes; and Florida Administrative Code Rules 64B7-26.101(1), (2), and (3) and that his license be revoked. DONE AND ENTERED this 18th day of November, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 18th day of November, 2003.
