Findings Of Fact Petitioner is a state licensing and a regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30 and Chapters 120 and 480, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Albert Abrev, is now and at all material times hereto was a licensed masseur in the State of Florida having been issued license number MA0007125 on December 19, 1986. Respondent's license is valid through December 31, 1990. Beginning in September of 1988, Respondent worked at an establishment known Geisha Massage, located 3222 South Dixie Highway in West Palm Beach, Florida. Geisha Massage has not been issued a license by the Board of Massage. Geisha Massage is a Florida corporation which was officially incorporated on July 5, 1988. Respondent is not an owner, incorporator or officer of Geisha Massage. On or about September 27, 1988, Officer Olsen of the West Palm Beach Police Department was directed by her supervisor, Detective David E. Henry, to perform an undercover investigation at Geisha Massage. The purpose of the investigation was to determine whether the establishment was involved in prostitution. On or about September 27, 1988, Officer Olsen entered Geisha Massage and posed as an applicant looking for work. Officer Olsen claimed to be responding to an ad placed in the newspaper. Officer Olsen was interviewed by the Respondent who advised her that she did not need a license because she would only being doing "body treatments or Swedish shampoo." Officer Olsen was requested to undress so that Respondent could determine how she reacted in front of a male without clothing. During the job interview, Respondent indicated to Officer Olsen by pointing to his mouth and to his groin and shaking his head that she would not be expected to engage in sexual intercourse or oral sex. However, Respondent indicated by a hand gesticulation that she would be expected to provide "hand jobs." Officer Olsen's interpretation of Respondent's gestures were confirmed by one of the other employees of Geisha Massage. Officer Olsen was told by Respondent that she was hired and that she was to return to work that evening. Respondent was the only licensed massage therapist on the premises at Geisha Massage. There were at least three female employees of Geisha Massage who provided "body treatments" to customers. None of these employees were licensed massage therapists at the time of the incidents in question. One of them, Victoria Ann Seely, was in the process of obtaining licensure. She took the examination in November of 1988 and received her license in December, 1988. Ms. Seely was a ten percent owner of Geisha Massage. The evidence established that patrons of Geisha Massage were masturbated for a fee upon request after their initial visit. On or about September 30, 1988, a customer of Geisha Massage, Kenneth Barnes, was masturbated and massaged by an employee of Geisha Massage. On September 30, 1988, Officer Olsen, and Detective Daniel Henry of the West Palm Beach Police Department entered Geisha Massage with a search warrant and arrested Respondent, Victoria Ann Seely and two other female employees of the establishment. On or about December 8, 1988, the Respondent pled guilty to a felony charge of operating a house of ill-fame. Adjudication of guilt was withheld and he was placed on two years probation. He has successfully completed probation. Respondent's plea of guilty was a "Alford" plea whereby he did not specifically admit the allegations against him but agreed to plead guilty because it was in his best interest to do so. Respondent testified that he agreed to plead guilty because he did not want to subject his wife and children to the publicity of a trial and further court proceedings.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Massage enter a Final Order finding the Respondent, Albert Abrev guilty of Counts I, II and IV of the Amended Administrative Complaint and that the Board of Massage revoke the Respondent's license. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28 day of September, 1990. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28 day of September, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 2. Rejected as irrelevant and not established by competent substantial evidence. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 8. 12.-14. Rejected as irrelevant. No evidence was introduced to establish that Respondent hired the employee in question or delegated any responsibilities to her. Adopted in substance in Findings of Fact 11. Rejected as irrelevant. 17.-18. Rejected as irrelevant. No competent substantial evidence was introduced to establish that Respondent any dealings with this particular customer. The customer was unable to positively identify Respondent. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 10. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as constituting legal argument rather than a finding of fact. The evidence did establish that Respondent entered a plea of guilty. See, Findings of Fact 13. As set forth in Paragraph 5 of the Conclusions of Law, the sealing of Respondent's criminal record is not retroactive and competent substantial evidence was introduced regarding the guilty plea. Rejected as subordinate to Findings of Fact 5 through 8. Addressed in Conclusions of Law 8. Addressed in Conclusions of Law 10. COPIES FURNISHED: Michael A. Mone, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Robert P. Foley, Esquire Foley & Colton, P.A. 406 North Dixie Highway West Palm Beach, Florida 33401-4298 Mildred Gardner Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750
The Issue An administrative complaint dated January 5, 1998, charges that Respondent violated rules governing the practice of massage by failing to have a current establishment license and failing to have a fire extinquisher on the premises maintained in good working condition. The issues for resolution are whether those violations occurred and, if so, what discipline is appropriate.
Findings Of Fact Respondent, Keith Richard Goldsmith, is now and has been at all relevant times a massage therapist licensed by the State of Florida with license no. 0011202. In 1996, Respondent's massage establishment, Bio-Spirit Bodywork Therapy, was licensed and located at 1089 Choke Cherry Road in Winter Springs, Seminole County, Florida. The property was sold and Respondent had to relocate in a move which he describes as "chaotic." At some point during or after the move Respondent sent his facility transfer fee to the Board of Massage. He apparently sent a letter, but not the proper application form. On July 31, 1997, after obtaining Respondent's phone number from telephone information and calling to get an appointment, investigators Dawn Witte and J. C. Russell conducted an inspection of Respondent's facility now located at 265 Stoner Road in Winter Springs, Florida. The inspection determined that all requirements were met, except for the following: No current establishment license; No establishment license displayed; and No fire extinquisher maintained on the premises. At the time of the inspection Respondent had not obtained the license for the new facility and did not display the license for the prior facility. His fire extinquisher was still packed away somewhere. In a follow-up visit from the inspectors, Respondent declined the option to accept a disciplinary citation and $250 fine for the violations. Respondent subsequently formally applied for, and was granted a temporary establishment license for the Stoner Road facility.
Recommendation Based on the foregoing it is hereby recommended that the Board of Massage Therapy enter its final order finding that Respondent committed two violations of Section 480.046(1)(k), Florida Statutes, and assessing a fine of $350. DONE AND ENTERED this 20th day of July, 1998, in Tallahassee. Leon County, Florida. MARY 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 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1998. COPIES FURNISHED: Joseph S. Garwood, Esquire Agency for Health Care Administration 1580 Waldo Palmer Lane Post Office Box 14229 Tallahassee, Florida 32317-4229 Keith Richard Goldsmith 265 Stoner Road Winter Springs, Florida 32708 Joe Baker, Executive Director Board of Massage Therapy Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-4092
The Issue The issue in this case is whether the Department of Health, Board of Massage Therapy, should discipline the Respondent, Jun Ping Hao, based on the manner in which she applied for and obtained her license.
Findings Of Fact The Respondent, who was born in China, came to the United States in 2009 and enrolled in the Healing Hands Institute for Massage Therapy (Healing Hands) in New Jersey. She completed a 600-hour course of study and graduated in March 31, 2010. In December 2010, she sat for and passed the examination administered by the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB). The Respondent wanted to move to Florida and work as a licensed massage therapist. She was referred to the Florida College of Natural Health (FCNH) by a friend, who had a friend who had graduated from FCNH's Board-approved course of study and was licensed in Florida. The friend made an appointment for the Respondent, who traveled to FCNH's Pompano campus in late December 2010 or early January 2011. On arrival, the Respondent was escorted by someone who worked there to the office of the registrar, Glenda Johnson. The Respondent showed Johnson her Healing Hands transcript and her NCBTMB certificate, which Johnson reviewed. It is not FCNH's normal practice for the registrar to review transcripts to determine how much credit to accept from another school. This is normally done by the school's education department. However, Johnson appeared to have the authority to make the determination, and it was reasonable for the Respondent to believe that Johnson was authorized to do so. Johnson then had the Respondent fill out and sign an application for licensure in Florida by examination based on her 600-hour course of study at Healing Hands and her NCBTMB certificate. Johnson helped the Respondent answer questions she could not understand. Everything in the application filled out and signed by the Respondent was true and correct at that time. Johnson then gave the Respondent a copy of the statutes and rules governing the practice of massage therapy in Florida. The Respondent spent about two hours in the registrar's office studying the statutes and rules. There was no instructor present. The Respondent did not ask anyone any questions about the statutes and rules, and she was not tested or graded on what she studied. When the Respondent finished studying the statutes and rules, she paid Johnson $830 in cash and left the application with her. The Respondent asked if she had to take any more classes, Johnson said she would let her know. She trusted Johnson, as the school's registrar. Cf. § 1005.04(1)(a) & (d), Fla. Stat. (2012)(a nonpublic secondary institution accredited by the Commission for Independent Education must disclose to prospective students the transferability of credit to and from other institutions and accurate information regarding the relationship of its programs to state licensure requirements). Actually, even if credit for all other educational requirements for Florida licensure by examination were transferred from Healing Hands, the Respondent was required to complete a ten-hour class in Florida statutes and rules. Fla. Admin. Code R. 64B7-32.003 (Apr. 25, 2007). (Notwithstanding some testimony to the contrary, other mandatory courses of study are not required by rule to be Florida-specific.) Id. Like all other educational requirements for licensure by examination, this class had to be taken in-person, with a faculty member present. Fla. Admin. Code R. 64B7-32.001 (Mar. 25, 1986). The Respondent did not recall Johnson saying she would submit the Respondent's application to the Board. The Respondent left the application she had filled out and signed on Johnson's desk when she left. She never spoke to Johnson or returned to FCNH again. At some point after the Respondent left the Pompano campus, Johnson completed a transfer of credit form and the Respondent's FCNH transcript. The transfer of credit form indicated that FCNH was accepting the following hours from Healing Hands: 150 credit hours in the category Anatomy and Physiology; 100 credit hours in the category Basic Massage Therapy; 125 credit hours in the category Clinical Practicum; 76 credit hours in the category Allied Modalities; 15 credit hours in the category Business; 15 credit hours in the category Theory and Practice of Hydrotherapy; 4 credit hours in the category Professional Ethics; and 3 credit hours in the category HIV/AIDS Education. The form did not specify the course taken at Healing Hands. The form indicated that to qualify for licensure, the Respondent needed ten hours in the category Florida Laws and Rules and two hours in Medical Errors. Finally, the form showed the total credit hours for all schools, which indicated that the additional hours needed for licensure had been taken. At some point after the Respondent left the Pompano campus, Johnson also completed a FCNH transcript for the Respondent indicating that the Respondent completed all the credit hours on the credit transfer form (a total of 500 credit hours, including 12 hours having been taken at FCNH, namely ten in Florida Statutes and Rules and two in Introduction to Allied Modalities), and assigning credits for those credit hours (a total of 25.84 credits, including 0.8 earned at FCNH). In fact, the Respondent did not take any classes at FCNH. At some point after the Respondent left the Pompano campus, Johnson also completed FCNH certificates of completion for the Respondent indicating that the Respondent took and successfully completed FCNH's two-hour class in Prevention of Medical Errors and 20 hours of FCNH's Therapeutic Massage Training Program (Transfer of License) between January 6 and 7, 2011. In fact, the Respondent did not take FCNH's class in Prevention of Medical Errors or any other classes at FCNH. Johnson sent the Respondent's license application (with $155 fee), Healing Hands transcript, and NCBTMB certificate, together with the documents Johnson completed after the Respondent left the Pompano campus, to the Board. She did not provide copies to the Respondent. Based on those submissions, the Board issued the Respondent massage therapy license MA 61844. There was no evidence as to what happened to the balance of the cash paid to Johnson, but subsequent events suggest that Johnson probably pocketed it. The Respondent's license application included both the representation that the answers and statements in or in support of her application were true and correct and the acknowledgement that any false information on or in support of the application was cause for denial, suspension, or revocation of her license. Although true and correct when the Respondent filled it out and signed it, the Respondent's application was not true and correct as submitted to the Board on her behalf, with the false supporting documentation prepared by Johnson. In December 2011, it came to the attention of Melissa Wade, FCNH's vice-president for Compliance and Institutional Effectiveness, that a number of people were claiming to have graduated from FCNH's Pompano campus based on documentation indicating that they did not complete FCNH's 768-hour course of study that was approved by the Board. Wade investigated and was unable to find any record of the individuals having been students at FCNH. Wade investigated further and discovered discrepancies in the documentation being submitted by those individuals. Wade investigated further and discovered that Johnson never actually registered these individuals as students. Johnson was terminated from her employment as registrar for the school. Beginning in January or February 2012, Wade began notifying the Board about the individuals purporting to be FCNH graduates, but who never actually were registered as students and did not complete the school's Board-approved course of study. As more such individuals were identified, the Board was notified. The Respondent was one of the individuals reported to the Board. In September 2012, it came to the Respondent's attention that the Department had concerns regarding the veracity of the Respondent's application for licensure. In October 2012, in an attempt to resolve the Department's concerns, the Respondent took and successfully completed Board-approved continuing education (CE) classes titled Living with HIV/AIDS (three CE hours), Massage Therapy Laws and Rules--Legal Update 2011 (ten CE hours), and Preventing Medical Errors (two CE hours). Later in October 2012, the Department filed emergency suspension orders and administrative complaints against a number of licensees who submitted suspect FCNH documentation with their applications, including the Respondent. During the time the Respondent practiced as a licensed massage therapist in Florida, there have been no complaints of any kind against her either by the Department or any consumer. During that time, the Respondent also became licensed as a massage therapist in Connecticut and Virginia. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, even assuming that Johnson had at least apparent authority to transfer credit hours from Healing Hands and assign FCNH credit, it is clear that the application submitted on the Respondent's behalf by Johnson was supported by documentation that falsely represented that the Respondent took a ten-hour class on Florida statutes and rules and a two-hour class in Prevention of Medical Errors at FCNH. At the same time, those false misrepresentations were made by FCNH, through its registrar, not by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order dismissing the Administrative Complaint against the Respondent. DONE AND ENTERED this 11th day of June, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2013. COPIES FURNISHED: Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health Bin C06 4052 Bald Cypress Way Tallahassee, Florida 32399-3256 Jennifer A. Tschetter, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Martin P. McDonnell, Esquire Rutledge, Ecenia, and Purnell, P.A. 119 South Monroe Street, Suite 202 Post Office Box 551 Tallahassee, Florida 32302-0551 Candace Rochester, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations in a three-count Administrative Complaint. The Administrative Complaint alleges violations of Paragraph (f), (h), and (i) of Section 480.046(1), Florida Statutes.
Findings Of Fact At all times material to this case, the Respondent has been licensed to practice massage therapy, having been issued license number MA0006547. At all times material to this case, the Respondent has also held a massage establishment license, having been issued establishment license number MM000556833. In or around September of 1993, a Mr. J. V. T. 1/ read a newspaper article to the effect that the Respondent had successfully treated children suffering from attention deficit disorder by using vitamins and health supplements in lieu of drugs such as Ritalin. At that time Mr. J. V. T. had a minor son, D. T., who was suffering from attention deficit disorder and was taking Ritalin pursuant to a prescription written by the son's pediatrician. Shortly after reading the newspaper article, Mr. J. V. T. took his son to see the Respondent for the purpose of determining whether his son's condition could be treated without Ritalin. Mr. J. V. T. and his son saw the Respondent at a facility named Advanced Health Center. At that location Mr. J. V. T. saw a massage therapy license for the Respondent. Mr. J. V. T. is not certain that was the only license. The purpose of Mr. J. V. T.'s visit was to obtain nutritional counseling with regard to his son's attention deficit disorder. He did not ask the Respondent to perform a massage on his son. In or around January of 1994, the Respondent recommended that J. V. T.'s son undergo a blood test. The blood test was performed by someone else at another facility. Eventually, someone gave Mr. J. V. T. a videotape that was described to him as being a video tape of his son's blood test. Shortly thereafter, Mr. J. V. T. met with the Respondent to discuss the results of the blood test. The Respondent told Mr. J. V. T. that the blood test showed that Mr. J. V. T.'s son had tape worms and that the tape worms were consuming large quantities of the nutrition and health supplements the son had been taking. The Respondent recommended some treatments to counteract the tapeworms. Mr. J. V. T. lacked confidence in what he was being told by the Respondent and discussed the matter with his son's pediatrician. Based on his discussion with the pediatrician, Mr. J. V. T. did not seek any further services from the Respondent. Mr. J. V. T. paid the Respondent for the services provided by the Respondent. Mr. J. V. T. does not believe that his son received any benefit from the services provided by the Respondent. When questioned by Mr. J. V. T., the Respondent stated that he was self taught and that he was not a doctor.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 22nd day of August, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1997.
The Issue The issue presented for decision herein is whether or not Respondent's license as a Physical Therapist should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 486, Florida Statutes, as is more particularly set forth hereinafter and which is contained in a Second Amended Administrative Complaint filed December 12, 1986.
Findings Of Fact Respondent, Steven R. Bernstein, is and at all times material, was a licensed physical therapist having been issued license number PT 0002304. (Stipulation) Respondent maintained two separate offices in Fort Lauderdale: 4580 North State Road 7, Suite K, and 2951 Northwest 49th Avenue, Suite 308. (Stipulation) From March 1981 to March 1983, Respondent employed Kathy Schillace as an aide at both of his offices. At no time was Schillace licensed as a physical therapist or a physical therapist assistant. (Stipulation) Schillace's duties included giving treatments to patients such as electrical stimulation, range of motion exercises and ultrasound. To perform these duties, Schillace reviewed patient charts and determined what procedures were needed based on notations which had been recorded by Respondent or one of his licensed physical therapists employed in one of the two offices. Schillace received on the job training from Respondent and Susan Trider, a licensed physical therapist, on how to operate the equipment. Susan Trider supervised Schillace during most of her employment with Respondent. Susan Trider worked for Respondent from November 16, 1981 thru June 21, 1982. Trider was licensed in Florida by endorsement on June 3, 1982. Trider was licensed in Massachusetts in April 1980. (Petitioner's Exhibit 4) From April 1982 to May 1983, Respondent employed Patricia Sears as an aide at both of his offices. At no time was Sears licensed as a physical therapist or a physical therapist assistant. (Stipulation) Sears routinely performed treatments on patients with electrical stimulation, range of motion and ultrasound exercises. Although Sears felt that she did not receive adequate training to do the treatments she performed for patients, it is found that Sears received adequate training and there were ample licensed supervisory personnel on hand to answer any inquires or provide the needed assistance. As example, it is alleged that based on the inadequate training and lack of supervision that Sears received, she burned a patient with the electrical stimulation machine. Upon review of the testimony concerning that incident, it is found that Sears was working under the supervision of an employee of Respondent, Paula Allia, a licensed physical therapist. (Petitioner's Exhibit 1, pages 12, lines 21-25; page 13 lines 1-4). Respondent had a policy of requiring licensed physical therapists to be on the premises at all times while aides were administering treatment to patients. The training included reviewing contra-indications, the indications, what procedures the equipment was capable of doing, reviewing the operating manuals and explaining the various equipment including hands-on training by licensed personnel. (TR 76-77) Prior to administering any procedures to patients, the aides were given a training exam and they had to demonstrate their abilities by passing the exam and by providing treatment to the licensed personnel. Respondent endeavors to insure that the aides were adequately trained by duplicating the training program that he received while in school to become licensed. (TR 77, lines 23-25) After they were trained, the typical case would be that the aides would only perform procedures diagnosed by a licensed physical therapist. While performing the procedures, licensed therapists were on the premises throughout the period during which the procedures were being administered. (TR 78-79) The procedures that were performed by the aides were procedures ordered by private physicians and all patients of Respondent's were referred from private physicians. Respondent constantly checked the administration of procedures by licensed personnel. (Testimony of Fran Wade, TR 97-98. Testimony of Susan Trider, TR 104) During times material herein, the procedures that Respondent's aides performed were the typical procedures engaged in by aides at other hospitals and private physical therapists in South Florida. (Testimony of Todd Williams, (TR 116-117) Respondent's offices were small and it was possible to hear communications between the patients, aides and the licensed physical therapist constantly monitored the treatment modalities administered by the aides. (Testimony of Respondent, R 92) In the opinion of Paul Hughes, an expert physical therapist, a physical therapist actively involved in the treatment or who is in the immediate area to provide supervision to an aide, is engaged in an acceptable practice in Florida. (TR 39) The testimony of other licensed physical therapists herein support Respondent's position that the treatment modalities that Respondent allowed his aides to administer were the type modalities which were considered acceptable by the local community. (Testimony of Diane Siweck, Sue Chestnut, Todd Williams and Fran Wade).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 29th day of June 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of June 1987. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Hubert, Esquire Paragon Center Suite 512 2400 East Commercial Boulevard Fort Lauderdale, Florida 33308 Dorothy Faircloth, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings T. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of massage (Chapters 20.30, 455, and 480, Florida Statutes). The Respondent is a licensed massage therapist, holding license number MA 0004771 (P's Exh. 2). The Respondent holds a massage establishment license for Massage by Olga, license number MM001233 (P's Exh. 1). Massage by Olga is located at 643 Tanglewood, Daytona Beach, Florida 32114. No other businesses are located at that address (T-31). The Petitioner is charged with inspecting the establishment premises. Section 480.043(9), Florida Statutes, and Rule 21L-26.005, Florida Administrative Code. It is the usual and common practice of inspectors to make unannounced inspections (T-10-11). To make announced inspections would contravene the reason for the inspection, giving licensees time to clean up their licensed premises (T-11, 28). The Petitioner's inspector, Linda Mantovani, who works out of Jacksonville, Florida, attempted to make an inspection of the establishment, Massage by Olga, on January 30, 1991 (T-13). She knocked on the front door and waited seven (7) minutes. No one came to the door. Ms. Mantovani observed two cars in the driveway of the establishment (T-14). Ms. Mantovani heard noise coming from inside the establishment (T-14- 15). Ms. Mantovani went around to the side entrances and windows, and again knocked on the front door (T-15-16). Ms. Mantovani's knocks were unanswered (T-15). Ms. Mantovani waited outside the establishment for another 15 to 20 minutes to see if anyone left. She observed no one leaving or entering the establishment (T-16). Ms. Mantovani observed a sign on the front door of the establishment which said: Appointments & Information by telephone-only No appointments, No knock!!!! Do not ring bell unless on time (+ or - 5 min.) Phone number....lost it, find it! Inspectors see rule #2. No exceptions (T-14, 23-24; P's Exh. 4). Ms. Mantovani formed the impression that people were inside the establishment (T-15, 18) The Respondent told Ms. Mantovani that although she parked her car at the licensed premises, she frequently walked to lunch in the neighborhood. Ms. Mantovani contacted the Respondent by telephone without difficulty. The Respondent told Ms. Mantovani that she did not live at the licensed premises; that she was there only for appointments; and she would make herself available for Ms. Mantovani for inspection purposes. Ms. Mantovani advised the Respondent that the Petitioner made unscheduled inspections. The Respondent told Ms. Mantovani that she could not promise that she would be at the licensed premises when Ms. Mantovani was in Daytona. The Respondent also stated that it was her practice not to answer the door, except to receive scheduled patrons. Ms. Mantovani refused to schedule an inspection, or to call and ascertain that the Respondent was available and inspect at that moment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the charges be dismissed. DONE AND ENTERED this 21st day of February, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-6559 Petitioner's Proposed Findings of Fact 1-15. Adopted. 16-17. Rejected as contrary to more credible portion of Ms. Mantovani's testimony. 18. Adopted and moved to Paragraph 3. COPIES FURNISHED: Anna Polk, Executive Director Board of Massage Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Lois B. Lepp, Esq. Department of Professional Regulation Northwood Centre, Suite 60 1940 N. Monroe Street Tallahassee, FL 32399-0792 Rita Brigugulio 643 Tanglewood Daytona Beach, FL 32114
Findings Of Fact At all times relevant hereto Respondent was licensed as a physical therapist assistant in Florida. He has held a physical therapist assistant license for approximately 18 years and worked approximately five and one-half years as an orthotec. In June 1985, Respondent was employed by Southeast Rehabilitation Services (Southeast) as a physical therapist assistant. On or about June 3, 1985, a patient had been transferred to Southeast with one knee immobilized. The physician's order transferring the patient to Southeast directed the immobilizer be removed. When Respondent provided treatment to the patient, he removed the immobilizer without first having received written instructions from the physical therapist to do so. On or about June 11, 1985, Respondent provided treatment to a patient at Southeast which consisted of strengthening exercises using small weights, when the physical therapist orders called only for range of motion exercises without weights. Respondent had been working at Southeast only a short while and had been taken on rounds by another physical therapist assistant. When Respondent gave treatment to this patient on his own, he couldn't locate the patient's chart and relied on his memory to provide treatment. He thought he remembered the other physical assistant gave this patient strengthening exercise, but this was incorrect. Respondent readily acknowledged committing the violations alleged, but contended the June 11 incident was a simple mistake and that he had followed physician's orders at other physical therapy centers at which he had worked, without waiting for written orders from the physical therapist.
