The Issue Whether Respondent violated provisions of chapter 480, Florida Statutes, as alleged in the Administrative Complaint, and; if so, what penalty should be imposed?
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following factual findings are made: The Department is the state agency charged with the licensing and regulation of massage therapists pursuant to section 20.42 and chapters 456 and 480, Florida Statutes. At all times material to the allegations in this proceeding, Respondent was a licensed massage therapist in the State of Florida, having been issued license number MA 80938. During May 2016 Respondent worked at Massage Envy (“M.E.”) as a massage therapist. M.E. is a spa facility offering massage services. D.W. is a 46-year-old female with significant back issues. D.W. was in a boating accident as a child, and has had at least eight back surgeries in attempts to alleviate her back pain. Since 2012, D.W. has had numerous massages to help ease her back pain. She initially received massages through her chiropractor’s massage therapist. The chiropractor’s massage therapist was unable to continue, and D.W. started obtaining massages at M.E. D.W. obtained free massages from M.E. when she participated as a “mystery shopper”4/ for M.E. Following that experience, D.W. became a client of M.E. D.W. usually received full-body massages on a monthly basis,5/ except when she had the back surgeries. On May 27, 2016, D.W. contacted M.E. requesting a massage appointment. She was assigned Respondent as her regular masseuse was unavailable. D.W. arrived for the massage and met Respondent. The massage was scheduled for two hours. D.W. and Respondent discussed D.W.’s back pain. Respondent left the treatment room to allow D.W. time to completely disrobe and cover herself with the drape cloth or sheet. During the first half of the massage, D.W. was face down while Respondent stretched her out. She was comfortable with this part of the massage as she remained fully covered by the sheet. Approximately half way through the massage, Respondent briefly left the room, and D.W. turned over to be face up for the remainder of the massage. In the face-up position, Respondent began the next phase of the massage. While he was working on D.W.’s left leg, Respondent bumped her vagina. D.W. initially thought the touching was an accident; however, Respondent kept touching her clitoris. Respondent then put two to three fingers inside D.W.’s vagina. D.W. was “very scared,” and initially felt frozen in fear. After a few minutes Respondent asked if he needed to stop the massage. After a few seconds, D.W. was able to say, “It’s making me feel like I have to pee, please stop.” Respondent stopped. Respondent then asked if D.W. wanted to have her hands or feet massaged as there were a couple of minutes remaining in her appointment. D.W. did not want Respondent’s hands touching her hands; she indicated he could message her feet. Respondent finished the massage by working on D.W.’s feet. After the massage ended, D.W. dressed. D.W. went to the restroom, received a cup of water from Respondent and checked out at M.E.’s front desk. D.W. went to the parking lot, called the M.E. manager, and told the manager what happened. D.W. then went home. D.W. told her husband what had happened and the two of them returned to M.E. The Largo Police Department was called and a report was filed. While testifying about this very intimate type of contact, D.W.’s demeanor was distressed. She cried as if it were painful to recount. D.W. now is unable to use massage therapy to treat her back pain. Additionally, D.W. has trouble sleeping, and is unable to have sex because she considers what Respondent did to her was “foreplay.” Respondent denied that he engaged in any form of sexual activity with D.W. Respondent attempted to blame D.W.’s allegation as either a “counter-transference” or “transference” event. Respondent postulated that the counter-transference or transference is “where the client imposes a negative feeling or a negative association upon their therapist after something is awoken during massage.” Respondent agreed that D.W. had been getting massages for years, and that she would be accustomed to the massage experience. Respondent also agreed that there was nothing special about the massage he gave to D.W. Respondent’s testimony is not credited. Massage therapy training teaches that massage in the vicinity of the genital area is to be conducted very carefully. If a massage therapist properly draped a patient consistent with the requirements of rule 64B7-30.001, it would not be possible to inadvertently touch a client's genital area. The placement of a massage therapist's finger (or fingers) into the vagina of a massage client is outside the scope of the professional practice of massage therapy and is below the standard of care. There is no therapeutic value to massaging or penetrating the vagina, and there is no circumstance by which a massage therapist should touch a client’s vagina.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding Respondent guilty of violating section 480.0485 and rule 64B7-26.010; and imposing a fine of $2,500 and revoking his license to practice massage therapy. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2017.
The Issue Did Respondent, Cameron Kellogg, L.M.T., attempt to induce patient, L.R.A., to engage in sexual activity as prohibited by section 480.0485, Florida Statutes (2018)?1/
Findings Of Fact Section 20.43 and chapters 456 and 480, Florida Statutes (2019), charge the Florida Department of Health and the Board with licensing and regulating massage therapy. At all times material to the allegations of the Administrative Complaint, Mr. Kellogg was a licensed massage therapist. In August of 2018, Mr. Kellogg was providing massage therapy services for guests of the Opal Sands Resort and Spa (Opal Sands). L.R.A. and her husband G.A. were guests at Opal Sands. August 30, 2018, was their last full day there. L.R.A. scheduled a massage for that day. Before the scheduled time, L.R.A. and G.A. were relaxing at the pool. They had a drink at the pool. There is no credible evidence indicating that either became intoxicated. L.R.A. left the pool to attend her scheduled massage. G.A. stayed at the pool to wait for her. When L.R.A. arrived at the spa, she was directed to a changing area. She removed her clothes and bra, leaving on her underwear, and put on a robe supplied by the spa. Afterwards she met Mr. Kellogg in the waiting room, and he escorted her to the massage room. He left the room. She removed the robe and laid face down on the table covered with a drape. The massage began uneventfully. Midway through the massage L.R.A. turned over at Mr. Kellogg's request. This is typical in massages. During the massage, as is normal, L.R.A. became more and more relaxed, to the point of drowsiness. At the end of the massage period, Mr. Kellogg was standing at L.R.A.'s head massaging her shoulders and clavicle. He slowly moved his hands beneath the drape and began groping and fondling L.R.A.'s breasts. Then he pinched her nipples. L.R.A. was shocked and astonished. Naked and vulnerable, she was speechless and embarrassed. Then Mr. Kellogg asked her if she wanted him to perform oral sex saying, "Do you want me to eat your p---y?" Still speechless and shocked, L.R.A. shook her head no several times vigorously. Mr. Kellogg said "OK" and left the room. The actions described in findings six and seven are not part of an appropriate massage and were not invited or consented to by L.R.A. in any way. Mr. Kellogg violated the massage therapist-patient relationship and used it to attempt to induce L.R.A. in sexual activity. His actions were also sexual activity engaged in through direct contact with L.R.A. Still in shock, L.R.A. dressed, went to the front desk, and signed to charge the massage to her room account, leaving a $5.00 tip. She returned to the pool to meet her husband. She was in emotional distress and trying to decide how to tell her husband of Mr. Kellogg's assault. After meeting and talking a while at the pool, L.R.A. and G.A. went to their room to shower. Afterwards they left the resort and walked to a nearby souvenir and ice cream stand. After leaving the stand, L.R.A. asked her husband to sit down because she had something to tell him. This was only two hours after Mr. Kellogg groped her. During that time L.R.A. was processing her reactions and shock and thinking about how to tell her husband. She recounted the events to G.A., but did not repeat Mr. Kellogg's crass language, at first. She did not tell him about Mr. Kellogg pinching her nipples until a few weeks later. She thought those details would cause too much stress and anger on top of the other events. L.R.A. and G.A. decided that reporting Mr. Kellogg's behavior to the resort management was important and returned to Opal Sands. They told the front desk attendant that they needed to speak to the manager about something that happened in the spa. The attendant asked if they wanted the manager to come to their room. They said yes. The spa manager, Lexandra Gheradini, came to the room of L.R.A. and G.A. They told her about Mr. Kellogg's actions and request to perform oral sex. Ms. Gheradini apologized. But she did not ask them to complete any paperwork to document the assault. The resort only refunded the charge for the massage. L.R.A. reported Mr. Kellogg's actions within a reasonable period of time given her shock and embarrassment. At first she did not contact the police because of her embarrassment. Also, she and G.A. were preparing to leave the next day to return to their home in Pennsylvania. In Pennsylvania, L.R.A. told her friend K.E. about the incident. K.E. encouraged L.R.A. to report the incident to the police. L.R.A. reported it to the Clearwater police. She also reported the incident to the Florida Department of Health. The videotaped depositions provided clear and distinct views of the faces of L.R.A. and G.A. while testifying. Their facial expressions, body language, and reactions to Mr. Kellogg's questions made their testimony compelling and persuasive. Mr. Kellogg denied touching L.R.A.'s breasts. Mr. Kellogg, although he testified in person, was not persuasive. The majority of his testimony was argument about why L.R.A.'s testimony should not be accepted and complaints about how the charges have affected him. His denials were brief and unpersuasive. In addition, Mr. Kellogg testified that "I asked to eat her p---y." He minimizes this as "saying something stupid." Mr. Kellogg argues that L.R.A., G.A., and K.E. should not be believed because, when testifying a year after events, they do not remember some details. The argument is not persuasive. Forgetting some details peripheral to a shocking event a year afterwards is not unusual. The memories of L.R.A., G.A., and K.E. are distinct, clear, and consistent on the important facts. In addition, L.R.A.'s prompt reports of the incident to G.A. and the spa manager enhance her credibility. So too does the consistency of her description of events to K.E. Mr. Kellogg's testimony corroborates half of L.R.A.'s account. The record contains no evidence suggesting any motive for L.R.A. to fabricate her account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Florida Department of Health, Board of Massage Therapy, enter a final order: Finding that Respondent, Cameron Kellogg, LMT, violated section 480.0485, Florida Statutes. Revoking the license of Cameron Kellogg, L.M.T. Imposing a fine of $2,500.00 on Cameron Kellogg, L.M.T. Assessing costs of the investigation and prosecution of this case against Cameron Kellogg, L.M.T.,to be paid to Petitioner, Florida Department of Health. DONE AND ENTERED this 30th day of September, 2019, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2019.
The Issue The issues in this case are whether Respondent engaged in sexual misconduct in the practice of massage therapy in violation of section 480.0485, Florida Statutes, and if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Massage Therapy, is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43, and chapters 456 and 480, Florida Statutes. At all times material to this proceeding, Mr. John D. Nielsen-Collins was licensed as a massage therapist in Florida, having been issued license number MA 63151. At all times material to this proceeding, Mr. Nielsen- Collins worked as an independent contractor at VCHAC in West Palm Beach, Florida. S.T., an adult female, started receiving massages at VCHAC in 2012. Her physical therapist had recommended massage to help manage some scarring associated with endometriosis and pelvic adhesive disease. S.T. would receive a standard “deep tissue” full body massage about every week or ten days, almost always from Mr. Nielsen-Collins. On September 22, 2014, S.T. went to VCHAC for a massage. She greeted Mr. Nielsen-Collins. He then left the room while she got undressed. She laid face-up on the massage table, covered with draping. Mr. Nielsen-Collins began the massage as usual, massaging her neck, arms, and legs. She then flipped over to a prone position and he massaged her back and upper portions of her buttocks with firm kneading, as he always did. Mr. Nielsen-Collins then began to massage the lower portions of her buttocks. Rather than kneading, it was more of a light rub, which S.T. described as much more “sensual” in nature. Mr. Nielsen-Collins used both hands on either side of S.T.'s buttocks to spread the cheeks and expose her anus. In progressive steps, he moved his hands closer and closer toward S.T.’s anus, finally rubbing it through her thong. This contact was not accidental. S.T. flinched, and Mr. Nielsen-Collins removed his hands from her buttocks. S.T. felt uncomfortable, but she was trying to convince herself that it was just a mishap. She “let it go because when I flinched, he did move away.” The draping was moved to expose S.T.’s right leg, and Mr. Nielsen-Collins began massaging it, beginning at the calf and moving up toward her thigh. She noticed he was gradually pulling her right leg apart from her other leg, further exposing her. He started to rub her inner thigh, and then began to massage S.T.'s vagina through her underwear. S.T. testified that it did not feel like a massage, but like an “attempted arousal.” This contact was not accidental. Mr. Nielsen-Collins then asked her, “How is the pressure?” S.T. reached behind her in an attempt to remove Mr. Nielsen-Collins’s hand. Mr. Nielsen-Collins took S.T.’s hand and held onto it, preventing her from removing his other hand from her vagina. S.T. then tried to move her right shoulder to twist around, and then the hand that was holding her hand pressed down on her back, steadying her in position. S.T. closed her legs tighter, and Mr. Nielsen Collins removed his hand. Mr. Nielsen-Collins let go of S.T.’s shoulder and covered her to the waist. He rubbed her back for a moment. He fanned out the cover and put in on her back. He said that the massage was complete and left the room. S.T. was confused and extremely hurt. She testified that she had trusted Mr. Nielsen-Collins for a year-and-a-half. She was in a vulnerable position and he was supposed to be professional, but he had absolutely violated her trust. She got up, got dressed, left a tip on the counter as she always did, and walked out. She left the building, got in her car, and drove off. When she got to the corner, she determined she had to report the incident, pulled to the side of the road, and called VCHAC on her cell phone. She asked the person who answered to let her speak with the manager. She then told Ms. Samantha Trevegno, the office manager, that she had had an “inappropriate experience” during her appointment, and explained how she had been touched inappropriately by Mr. Nielsen-Collins. S.T. never returned to VCHAC for another massage. Mr. Nielsen-Collins had left VCHAC to go to a local supermarket. When he returned, Ms. Trevegno told him she wanted to talk to him in the pilates studio. She told Mr. Nielsen- Collins that she had received a call from S.T. alleging an inappropriate massage. Mr. Nielsen-Collins did not ask Ms. Trevegno what S.T. had claimed happened, but instead immediately became visibly upset, teared up, and stated, “I thought she was sweet on me, too.” He told Ms. Trevegno that he knew that she needed to end his contract with VCHAC. Ms. Trevegno left and talked to Dr. Horowitz, the chiropractic doctor at VCHAC. When she returned she told Mr. Nielsen-Collins that he should leave. Mr. Nielsen-Collins asked if he should talk to the doctor. Ms. Trevegno said, “No, he wants you to go.” S.T. did not request that Mr. Nielsen-Collins massage the area between S.T.’s buttocks, her anus, or her vagina. Mr. Nielsen-Collins did not request permission to touch the area between S.T.’s buttocks, her anus, or her vagina and she did not give him consent to do so. Consistent with the testimony of Ms. Iris Burman, L.M.T., Mr. Nielsen-Collins’s touching of the area between S.T.’s buttocks, her anus, and her vagina, as described here, was outside the scope of generally accepted examination or treatment of massage therapy patients. Mr. Nielsen-Collins’s contrary contention, to the effect that he only performed standard massage techniques on patient S.T., and that her perception that she had been inappropriately touched must have been based upon transfer of sensation was not credible, and is rejected. Mr. Nielsen-Collins used the massage therapist-patient relationship to engage in sexual activity and to attempt to induce patient S.T. to engage in sexual activity. Mr. Nielsen- Collins engaged in sexual misconduct in the practice of massage therapy. Mr. Nielsen-Collins has never had any prior discipline imposed against his license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding John D. Nielsen-Collins violated section 480.0485, constituting grounds for discipline under section 480.046(1)(p), imposing a fine of $2,500.00, revoking his license to practice massage therapy, and imposing costs of investigation and prosecution. DONE AND ENTERED this 22nd day of June, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2015. COPIES FURNISHED: John D. Nielsen-Collins, L.M.T. 321 Fordham Drive Lake Worth, Florida 33460 Lindsay Annette Wells Grogan, Esquire Louise Wilhite-St Laurent, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399 (eServed) Christy Robinson, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399 (eServed)
The Issue The issues presented in this case are whether Respondent has violated the provisions of chapters 456 and 480, Florida Statutes, as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The following findings of fact are based on the testimony, evidence admitted at the formal hearing, and the agreed facts in the pre-hearing stipulation. The Department is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43, Florida Statutes, and chapters 456 and 480. At all times material to the allegations in this case, Respondent was licensed to practice as a massage therapist in the State of Florida, having been issued license number MA 79509. At all times material to the allegations in this matter, Respondent was employed as a massage therapist at Daytona College, in Daytona Beach, Florida. Respondent’s address of record is 10 Spanish Pine Way, Ormond Beach, Florida 32174. S.W. is a licensed mental health counselor who has been licensed for approximately 22 years. She resides in Clermont, Florida, which is where she lived at the time of the massage. In July 2017, S.W. and C.W., her 23-year-old daughter, traveled to the Daytona Beach area to visit S.W.’s elderly mother. On July 19, 2017, S.W. and C.W. went to Daytona College, for the first time, for a massage. Upon arriving at the school, they were greeted by the receptionist. S.W. and C.W. were scheduled for 80-minute massages to take place at 3:30 p.m. However, the ladies arrived ten minutes late, so the massages began late. Upon arrival, the ladies were asked whether they needed to use the restroom, which they did. After using the restroom, the ladies were taken to the massage area for their services. S.W. selected the male massage therapist based on her past positive experiences with male therapists. S.W. had received a number of massages in the past, including massages by men. She allowed her daughter to be scheduled with the female massage therapist because she believed her daughter preferred a woman. S.W. was scheduled for a massage with Respondent, and C.W. was scheduled with Elizabeth Branson. Respondent escorted S.W. to the massage room first. Ms. Branson escorted C.W. to the room a few minutes later. As Respondent escorted S.W. to the massage room, S.W. described the areas in which she wanted special attention, including her neck, shoulders, scalp, and feet. Respondent asked S.W. whether she needed massage in the sciatic area. S.W. had problems in the sciatic area, so she consented to have the area massaged. The common room where massages occurred at Daytona College contained eight massage tables separated by curtains. Respondent took S.W. into the massage room and instructed her to undress to her comfort level. Respondent left the room while S.W. undressed down to her underwear. When Respondent reentered the room, S.W. was draped with a sheet. Respondent tucked the drape into S.W.’s underwear and lowered it onto her buttocks. A short time later, S.W. could hear her daughter in the area near her, but she could not see her. C.W. whispered to S.W. to let her know she was in the room. At some point, S.W. heard her daughter exit the room. C.W. finished her massage before S.W., even though S.W.’s service began before C.W.’s. C.W. recalled that her mother was unusually quiet during the massage instead of being “chatty,” as she normally would be. C.W. waited in the hallway outside the massage room for four or five minutes for S.W.’s massage to finish. After S.W. came out of the massage room, C.W. immediately noticed that something was wrong. When S.W. exited the room, she was “wired” and not relaxed, as she would normally appear after a massage. C.W. described her as appearing nervous and agitated. C.W. could tell that something was wrong, but S.W. did not say anything at that time. The two ladies walked to the front desk. As was her routine, S.W. paid for both massages and left a $10 tip. She did not make a complaint regarding the massage with the receptionist before leaving the school. Concerned regarding her mother’s behavior, C.W. asked S.W. what happened. S.W. stated that something weird happened. The ladies left the school and began driving to their destination. S.W. continued to be upset and ultimately, began crying. She was so upset that initially, she could not articulate what occurred. S.W. ultimately told C.W. that Respondent had placed his hand under her underwear and touched her clitoris. S.W. contacted her friend Mike, a law enforcement officer. S.W. explained to Mike what happened, and he suggested that she contact the police to report what happened to her. S.W. and C.W. called the police and requested that an officer meet the ladies at Daytona College. They also contacted the school and advised them that S.W. had been inappropriately touched during her massage. They arrived back at the school approximately 20 minutes later. The officer arrived shortly after S.W. and C.W. The officer interviewed S.W. and she reported to him that while massaging her thighs, Respondent “grazed” her vaginal area with his finger. S.W. also reported that Respondent touched her clitoris with his finger. S.W. declined to pursue criminal charges and stated she would file a complaint with the Department. However, she expressed that she wanted to ensure there was a record of the incident so another woman would not have the same experience. On or about July 26, 2017, one week later, S.W. filed a complaint with the Department of Health. S.W. submitted a typewritten statement regarding the events involving Respondent. S.W. related that at the beginning of the massage, she gave Respondent permission to pull down her underwear and tuck in the drape. She stated that toward the end of the massage, Respondent “grazed” her vagina outside her underwear. He then placed his finger under her underwear and began massaging her clitoris for a couple of seconds. She stated that she grabbed Respondent’s hand and pushed it away. In response, Respondent abruptly told S.W. that the massage was done. In addition to the report to the police and the Department, S.W. also reported the incident to the school administrators, Dr. Ali and Mr. Brooks. Dr. Ali met with S.W. and C.W. when they returned to the school. Dr. Ali described S.W. as appearing embarrassed, subdued, and uncomfortable. Mr. Brooks was also present during the meeting. He was called to campus after he received a report that something inappropriate happened. He observed that S.W. appeared upset. Although there was no expert offered to testify in this matter, Chris Brooks, LMT, provided insight regarding the type of massage provided to S.W. He explained the difference between sensualized touch and sexualized touch. A sensualized touch is not uncommon in massage. On the other hand, sexualized touch is used to evoke sexual pleasure. At hearing, S.W. was clear and unwavering in her recollection of the events involving Respondent touching her vaginal area. S.W. appeared anxious, uncomfortable, and her voice cracked when she testified that Respondent moved her underwear and touched her vaginal area. Specifically, she testified that Respondent grazed her vagina on top of the front of her underwear. She was in such shock that it happened she could not say anything. Respondent then put a bare finger underneath her underwear and began massaging her clitoris. She still could not speak, so she quickly grabbed his hand and pushed it away. Consistent with her statement to the police officer and her written statement, she credibly testified that Respondent touched her vaginal area with his finger. At hearing, Respondent denied touching S.W.’s vagina during the massage. He also denied rubbing her clitoris. Mr. Brooks, who is personally and professionally acquainted with Respondent, testified that Respondent seemed shocked to learn of S.W.’s complaint. Respondent testified that he draped S.W.’s legs in such a way that it caused the draping to “bunch” between the area massaged and the genitalia. Respondent argues that S.W. could not determine whether the draping touched her genitals when Respondent massaged her legs. However, when pressed on this point, S.W. unequivocally testified that she was certain it was Respondent’s finger that touched her clitoris. Respondent had no prior complaints of inappropriate touching before S.W.’s complaint. Although Mr. Brooks asked him about the complaint on the date of the incident, there was no evidence offered at hearing that Respondent was formally interviewed by the school administration. However, Respondent was terminated from his job at Daytona College based on S.W.’s complaint. Respondent was also not interviewed by the police officer investigating the complaint. Respondent was not charged with a crime. Respondent has no prior disciplinary action involving his license to practice massage therapy. The evidence demonstrates that Respondent crossed the boundaries of appropriate massage into sexual misconduct when he massaged S.W.’s clitoris with his finger. While Respondent’s testimony seemed sincere, S.W. was more persuasive. Based on the totality of the evidence presented at hearing, there is clear and convincing evidence that Respondent touched S.W.’s vaginal area or clitoris with his finger. The placement of a massage therapist’s finger on the vaginal area or clitoris of a patient is outside the scope of the professional practice of massage therapy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding: Respondent guilty of violating sections 480.046(1)(p) and 480.0485 as further defined in rule 64B7-26.010; Imposing a fine of $2,500; and Revoking Respondent’s license to practice massage therapy. DONE AND ENTERED this 5th day of April, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2019.
The Issue The issues in this case are whether Respondent committed sexual misconduct in the practice of massage therapy and failed to appropriately drape a client as alleged in the First Amended Administrative Complaint1 (AAC), and if so, what disciplinary action should be taken against Respondent’s license.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. At all times material to this proceeding, Respondent was licensed as a massage therapist in Florida, having been issued license number MA 80545. In the time since Respondent was licensed, no prior disciplinary action has been taken against her license. Respondent was born in the Liaoning Province, North China, and came to the United States in 2005. Respondent is a U.S. citizen. Respondent attended a Beauty School for her massage education and her educational instruction at school was in English. Further, when she took the examination to become a Florida licensed massage therapist, the examination was in English, and no one helped her to translate the material. Respondent’s address of record is 9986 Red Eagle Drive, Orlando, Florida, 32826.4 At all times relevant to the AAC, Respondent practiced massage therapy, as defined in section 480.033(3), at Golden Asian Massage, LLC, doing business as The Wood Massage (Golden Asian). Golden Asian was located at 1218 Winter Garden Vineland Road, Suite 124, Winter Garden, Orange County, Florida. 4 On November 26, 2019, the parties filed a Joint Pre-hearing Stipulation, stipulating that Respondent’s address of record was in New York. At some point after the March 2016 investigation, Respondent moved out of Florida. Then, either before or after November 26, 2019, Respondent moved back to Florida, but failed to advise her counsel or DOH of her address change. Respondent’s counsel stated that he would ensure Respondent filed the appropriate change of address information with DOH. At the time of the investigation, the LEO had been trained at the police academy, had multiple courses in vice-related investigations, human trafficking investigations, and drug trafficking investigations, including prostitution activities. The LEO has participated in “well over a hundred” undercover prostitution operations. The LEO’s investigation assignments “as a whole” include “anything that would be vice-related, drug trafficking or human trafficking.” The MBI is a joint police task force for the Ninth Judicial Circuit, which includes Orange County and Osceola County. MBI routinely investigates vice, human trafficking crimes, and mid-level to upper-level narcotic organizations. Once the MBI receives a complaint about a massage parlor, an undercover investigation is initiated. An undercover investigation team usually consists of five law enforcement personnel: a supervisor-in-charge; the undercover agent (agent); and two to three additional support personnel. An agent goes into the establishment, posing as a customer. Once the agent is on the massage table, the agent waits for the massage therapist to initiate, either via conversation or through an overt act, a predisposition for sexual activity. In some instances, the massage therapist might glide their fingers in the inner thigh, or speak of some sexual activity. Once the massage therapist initiates an actual sex act, the agent then tries to stop the sex act, while engaging in conversation. On March 9, 2016, after receiving a tip or complaint about the establishment, the MBI conducted an undercover investigation of the Golden Asian. The LEO arrived at the Golden Asian, met Respondent at the counter, and in English, asked for a 30-minute massage. Respondent responded in English and told the LEO it would cost $50 for a 30-minute massage. The LEO agreed to the cost, and Respondent led the LEO to a massage room within the Golden Asian. The LEO got completely undressed and positioned himself on his stomach, face-down on the massage table. Upon entering the room, Respondent grabbed a towel and placed it on the LEO’s back midsection. The LEO described the area covered as “pretty much my buttocks to, like, my lower back,” but the towel was not tucked in. Using oil, Respondent massaged the LEO’s back, thighs, and neck. While the LEO was still on his stomach and roughly ten to 15 minutes through the massage, the towel fell off. The LEO did nothing to dislodge the towel while he was on his stomach. Roughly halfway through the 30-minute massage, Respondent “stopped massaging and it was more of a gliding motion from [the LEO’s] back to [the LEO’s] inner thighs.” With this action, the LEO determined that Respondent was predisposed to engage in sexual activity. Respondent directed the LEO to turn over, which he did. The LEO testified that after he turned over his genitals were exposed. Respondent put more oil on her hands and massaged the LEO’s chest to his thigh area. Respondent further testified that Respondent “would glide and touch [the LEO’s] penis and scrotum.” Respondent asked the LEO if he liked it when Respondent “tapped” the LEO’s penis. The LEO answered “yes” to Respondent’s question. The touching of the LEO’s penis and scrotum again provided the predisposition that sexual activity could be engaged. The LEO then asked Respondent for oral sex, i.e. a blow job. Respondent declined to perform oral sex. The two engaged in talking and hand gesturing regarding manual masturbation and its cost. The LEO testified Respondent raised her hand to indicate manual masturbation would be $40.00. Respondent testified that she said “no” and did not state a price. As provided below, Respondent’s testimony was not credible. The LEO told Respondent that $40.00 was too expensive for masturbation. He then grabbed the original towel that had draped him from between his legs, cleaned the oil, dressed, and left the massage establishment. Shortly thereafter, Respondent was arrested.5 5 The dismissal of Respondent’s criminal charges is not probative of whether she committed the regulatory violations. Respondent’s hearing testimony of how the towel fell off during the LEO’s massage differs from her deposition testimony. At hearing, Respondent testified that when the LEO flipped over, the towel fell off and she did not grab it fast enough. Respondent then added it took her “one minute, two minutes” to adjust the towel. Respondent admitted that she exposed the LEO’s genitals without his permission. However, during her deposition, Respondent blamed the type of oil massage that she was administering to the LEO for the towel falling off. Respondent claimed that her hand movement was “pretty hard. So with the movement, the towel shifting a little bit by little bit, and then [the towel] fell off completely.” Respondent also testified that she “saw it [the towel] dropped off, then [she] put it back right away.” In either instance, the LEO’s genitals were exposed without his consent. At the hearing, Respondent’s description of the towel used on the LEO changed from her deposition. During the hearing, Respondent testified the towel was “one to two feet wide . . . the length is about 1.5 meters [over four feet]. I’m not exactly sure.” However, in her deposition, Respondent provided that the towel was “more like a facial towel. It’s not a very big shower towel, but it’s more a facial towel size . . . one [foot] by two [foot].” Respondent’s testimony describing the LEO’s massage is not clear or credible and is rejected. The LEO’s testimony was credible, clear, convincing, and credited. Ms. Buhler is a licensed massage therapist and based on her education, training, and experience, she is accepted as an expert in massage therapy. “Draping” is covering the body while a massage therapist is working on it for the client’s comfort and privacy. Usually, a sheet is used for draping a client (if the room is too cold, a blanket could be added). As a massage therapist works on specific body areas, that body part is uncovered and the towel repositioned when the therapy to that area is completed. Ms. Buhler opined that the size of the towel (“1 [foot] x 2 [foot]” as described by Respondent in her deposition) is “very small,” and is an unusual drape size. Further, she opined that a “1 x 2 towel barely covers anything. It would be almost impossible not to either view something or potentially accidentally bump something with a drape of that size.” If any drape were displaced during a massage, the standard of care requires that the drape be put back in place immediately, not in one or two minutes. Ms. Buhler opined that “anytime a therapist attempts to, either for their own pleasure or for the pleasure of the client, to get any sort of sexual gratification, that is considered sexual misconduct.” A therapist has a choice when any type of sexual activity is suggested or offered. A therapist can redirect someone, state that the activity is not appropriate for the setting, threaten to terminate the massage, or in fact, terminate the massage by leaving the treatment room. Respondent provided that she continued to massage the LEO for one or two minutes after the request for oral sex. Although Respondent claimed she said “No,” she did not take any affirmative action to terminate the session or remove herself from the situation. Respondent’s actions on March 9, 2016, were outside the scope of generally accepted treatment of massage therapy patients. There is no evidence that Respondent has ever 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 Respondent, Mingli Li, in violation of sections 480.046(1)(i) and 480.0485, Florida Statutes, constituting grounds for discipline under section 480.046(1)(p), imposing a fine of $3,500.00; revoking her license to practice massage therapy; and assessing the cost of investigating and prosecuting the Department’s case against Respondent. DONE AND ENTERED this 13th day of February, 2020, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2020. COPIES FURNISHED: Zachary Bell, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Michael S. Brown, Esquire Law Office of Michael S. Brown, PLLC 150 North Orange Avenue, Suite 407 Orlando, Florida 32801 (eServed) Christina Arzillo Shideler, Esquire Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Kama Monroe, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
The Issue Whether the Respondent, a licensed massage therapist, should be disciplined under section 480.046(1)(p), Florida Statutes (2016),1/ for sexual misconduct in the practice of massage therapy; and, if so, the appropriate discipline.
Findings Of Fact The Petitioner licenses and regulates the practice of massage therapy in Florida, including discipline of licensees who are in violation of the governing statutes and rules. The Respondent holds massage therapy license MA 80154. In March 2017, the Respondent was employed as a massage therapist at Hand and Stone Massage and Facial Spa in Brandon, Florida. On March 29, 2017, Y.B., went to Hand and Stone to use a gift card for a free massage that had been given to him by his fiancée. The Respondent approached and introduced himself to Y.B., and asked if he could help him. Y.B. told him why he was there, and the Respondent led him back to a therapy room. In the therapy room, Y.B. asked the Respondent to focus on his upper body, arms, and fingers. The Respondent had him undress and lay down on the massage table face down, covered only by a sheet. The massage proceeded without incident at first. Then, the Respondent asked for permission to massage Y.B.’s legs. Y.B. granted permission. As the massage proceeded, Y.B. closed his eyes and relaxed. When the Respondent finished massaging the back of Y.B.’s legs, he asked Y.B. to roll over onto his back. As the massage proceeded, Y.B. again closed his eyes and relaxed. After massaging Y.B.’s upper body, arms, and fingers, the Respondent asked, “May I?” Thinking the Respondent was asking if he had permission to massage the front of his legs, Y.B. said, “yes, do what you have to do.” Before Y.B. knew what was happening, the Respondent grasped Y.B.’s penis in his hand and put it in his mouth. Startled and shocked, Y.B. opened his eyes, sat up, and made the Respondent stop, saying “Whoa, whoa, whoa, what do you think you’re doing? I’m not gay.” At that point, the Respondent stopped and brought Y.B. water and a towel. What the Respondent did was very upsetting to Y.B. He was so upset and angry that he was distracted while being checked out by another employee of Hand and Stone. He unwittingly presented his gift card and answered questions. He discovered later that he not only had paid for the massage but also had given the Respondent a tip. Y.B. continued to be bothered by what happened and returned to Hand and Stone the next day to confront the Respondent and have him explain the reason for what he had done the day before. During this confrontation, the Respondent admitted to his misconduct and tried to apologize, saying “I thought we had a connection.” Y.B. continues to be affected by what the Respondent did to him. He received counseling through his employer. He still is less affectionate than he used to be, even towards his family. To this day, he still becomes anxious when reminded of the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding the Respondent guilty as charged; revoking his license; and fining him $2,500. DONE AND ENTERED this 23rd day of January, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2018.
The Issue 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 ultimate issue for determination at formal hearing was whether Respondent committed the offenses set forth in Petitioner's Administrative Complaint, and if so, what disciplinary action should be taken against Respondent's massage license.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Chapters 455 and 480, Florida Statutes, and rules promulgated pursuant thereto. Respondent is a Florida licensed massage therapist and has been at all times material hereto, having been issued license number MA 0012000. Respondent had been licensed for one (1) year prior to the alleged incidents and has performed approximately 700 massages, with approximately 300 of them being performed on women. In August 1992, P. G. was suffering from tension in her neck, so she contacted Respondent for a massage. P. G. was acquainted with Respondent as a result of them attending the same church and participating for six weeks in "prosperity classes" which met once a week. Respondent agreed to give her a massage at her home. At no time prior to this had P. G. had a massage. In the afternoon, on a day in August 1992, Respondent came to P. G.'s home to give her the massage. He brought with him a table and a sheet. P. G.'s husband was at home when Respondent arrived and was in another room in the home during the first half of the massage. The massage lasted approximately one hour and 15 minutes. Before beginning the massage, Respondent did not obtain any medical or health history from P. G. Also, Respondent gave P. G. the option of being draped with her underwear on or nude. P. G. chose to keep her underwear on. Respondent massaged P. G.'s neck, arms, shoulders, back, legs, feet and breasts. Throughout the massage, P. G. and Respondent conversed continuously. At one point, Respondent told her that she had a great body and that if she ever wanted to get rid of her husband he was available. P. G. did not take Respondent's comments seriously and dismissed them. When Respondent was massaging P. G.'s arms and shoulders, she was lying in a prone position with her arms and hands outstretched forward and with him standing in front of her. Several times, during this part of the massage, when Respondent leaned forward, he brushed his penis against her hands. Prior to massaging P. G.'s breasts, Respondent did not discuss massaging her breasts with her. Also, throughout the massage of P. G.'s breasts, Respondent used his hands to manipulate her breasts and manipulated her nipples. At one point during the massage, Respondent touched P. G.'s vaginal area and began stroking her clitoris. P. G. described Respondent's action as a "stimulation" of her clitoris in a sexual manner "like your husband would do." When Respondent did this, P. G. immediately asked Respondent if this was part of the massage. He asked her if she wanted him to do this and she said no. Respondent ceased and did not do it again. After the massage was over, P. G. paid Respondent $20 or $30, she did not recall which. Additionally, she walked Respondent to his vehicle and requested that he leave some of his advertising material with her, which he did. P. G. reported the incident to Petitioner after her twin sister informed her that Respondent should not have touched her vaginal area and nipples. Approximately two months later, on or about October 1, 1992, S. K. came to Fort Lauderdale, Florida, from California for her father's funeral. After his funeral, she was very stressed and wanted to get a massage. For S. K., massages were therapy, relieving her of stress, and she had been receiving massages for approximately 10 years. Also, S. K. is a licensed massage therapist in the State of California. On or about October 3, 1992, a Sunday, S. K. called Respondent after selecting him from his advertisement in the yellow pages. Respondent agreed to perform a massage on her that same day in the afternoon at his home. After arriving at Respondent's home, he directed S. K. to a small room which contained a massage table. She undressed completely and was provided with a small rectangular sheet about the width of her body for draping. Prior to the massage, S. K. and Respondent discussed areas in particular that S. K. wanted massaged, i.e., shoulders, neck, and lower back. Further, she requested that Respondent use a special oil that she brought with her, and he agreed to do so; she felt "safe" with the smell of the oil. At no time did Respondent take any medical or health history from S. K. S. K.'s massage lasted for approximately one hour. Respondent talked continuously during the entire massage, relating his real estate dealings. Respondent began the massage by having S. K. lie on the massage table in a prone position. He placed the small sheet on her, leaving her buttocks uncovered. In the course of massaging the top of S. K.'s legs, Respondent brushed S. K.'s genital area, specifically her labia, very briskly at least six or eight times (three or four times on each leg). S. K. began to become suspicious of Respondent but did not object to Respondent's action. While S. K. was still in the face down position, Respondent massaged S. K.'s buttocks. During the massage of her buttocks, Respondent brushed his fingers over S. K.'s anus several times, causing her to believe that Respondent was doing this intentionally. However, S. K. did not object to Respondent's action, wanting to believe, instead, that what was happening really wasn't. Additionally, while in the prone position, Respondent massaged S. K.'s shoulders. She was lying with her arms and hands outstretched in the front of her and with Respondent standing in front of her. Several times, while manipulating S. K.'s shoulders, Respondent would brush his stomach and penis against her hands. Each time the brushing occurred, either with his stomach or his penis, S. K. would move her hands back, but the massage procedure would cause her hands to move forward again. S. K. objected to Respondent's action, and he stopped. When Respondent had S. K. to lie on her back, he did not cover her genital area with any kind of draping. She became angry, accused Respondent of not properly draping her, and proceeded to drape her genital area herself. While S. K. was still lying on her back, Respondent massaged her breasts with his hands. Respondent had not discussed massaging S. K.'s breasts before doing so. During the massage of S. K.'s breasts, Respondent manipulated her nipples with his hands. At the conclusion of the massage, S. K. paid Respondent $20 for the massage and gave him a $10 tip. Neither S. K. nor P. G. were acquainted with one another. Expert testimony was that draping is not universally taught in Florida's massage schools and that there is no universally accepted method of draping by massage therapists in Florida. When a massage therapist performs a massage on a client for the first time, the minimum standard of practice, according to expert testimony, requires the massage therapist to take the client's medical history. Obtaining the medical history guides the massage therapist in the client's massage, such as informing the therapist which areas of the body are appropriate for massage and which are not. A massaging of the breasts is not prohibited; however, according to expert testimony, the minimum standard of practice requires the massage therapist to (a) inform the client, prior to the massage, that the breasts will be massaged, (b) obtain the client's consent, and (c) use the client's hand to massage the breasts (massage through the client's hand). Additionally, the minimum standard of practice prohibits the manipulation of the nipples. Massaging of the genital area, according to expert testimony, is prohibited by the minimum standard of practice, unless the client's physician has ordered such a massage. No physician ordered a massage of the genital area for either P. G. or S. K. According to expert testimony, the anus is involved in a massage procedure referred to as colonic irrigation which is a gloved procedure and requires special equipment. The minimum standard of practice requires a massage therapist to obtain the client's consent for the procedure and requires the client to go through an advance procedure prior to the colonic irrigation massage. No colonic irrigation was performed on either P. G. or S. K.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Board of Massage enter a final order: Determining James J. Maes guilty of violating Subsection 480.046(1)(k), Florida Statutes, by violating Board of Massage Rule 21L-30.001(1)(d), Florida Administrative Code, as set forth in the Administrative Complaint; and Imposing an administrative penalty of five years suspension. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of April 1993 ERROL H. POWELL 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 16th day of April 1993. APPENDIX Rulings on findings proposed by the Petitioner. 1-6. Rejected as subordinate to Findings of Fact 23-27. Adopted in Finding of Fact 25, except for the reference to appropriate draping which is rejected. Expert testimony revealed that there was no universally accepted method of draping. See Finding of Fact 23. Adopted in Finding of Fact 27. Adopted in Finding of Fact 26. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 11. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Rejected as unnecessary. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12. Rejected as unnecessary. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Rejected, see Finding of Fact 23. Adopted in Finding of Fact 17, except the reference to the clitoris which is rejected. Taking the deposition testimony about S. K.'s clitoris and labia indicates that S. K. meant her labia, not her clitoris. Adopted in Finding of Fact 18. Adopted in Finding of Fact 20, except the reference of failing to properly drape which is rejected. See Finding of Fact 23. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Rulings on findings proposed by the Respondent. Client I Adopted in Findings of Fact 3 and 4, except the reference to the date which is rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented, except as to P. G. wearing panties throughout the massage which is adopted in Finding of Fact 5. Rejected as contrary to the evidence presented, except as to the last sentence which is adopted in Finding of Fact 10. Client II Adopted in Finding of Fact 13. Rejected as contrary to the evidence presented, except for the expert testimony on draping which is adopted and modified in Finding of Fact 23. Rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented, see Finding of Fact 17. Rejected as contrary to the evidence presented, see Finding of Fact 20. Rejected as contrary to the evidence presented, see Finding of Fact 18. Rejected as unnecessary and contrary to the evidence presented, except the reference to the tip which is adopted in Finding of Fact 21. COPIES FURNISHED: Susan E. Lindgard, Esquire Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 James J. Maes 1498 Northeast 34th Court Oakland Park, Florida 33334 Anna Polk, Executive Director Board of Massage Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether the Respondent, a licensed massage therapist, violated applicable sections of the Massage Practice Act, by attempting to engage in prohibited sexual activity with a client or patient; and, if so, what discipline should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of massage therapy in Florida under section 20.43 and chapters 456 and 480, Florida Statutes (2015).1/ In 2015, the Respondent was licensed to practice massage therapy in Florida, having been issued license number MA 67956 by the Board of Massage Therapy. In November 2015, the Vice Unit of the Hillsborough County Sheriff’s Office conducted an operation to investigate a complaint that prostitution was taking place at VIP Massage (VIP), located at 5915 Memorial Highway in Tampa, which advertised “hot, beautiful, friendly Asian ladies” under the “body rub” section of advertisements on an internet website. On November 12, 2015, Detective M.D., who was working undercover, entered VIP. He was met by the Respondent, and she confirmed the appointment for a one-hour massage that he had made the day before, led him to a massage room, and collected the $60 charge. She then left the room with the money and returned after M.D. disrobed, except for his boxer shorts, and got on the massage table. The Respondent performed the hour massage in an appropriate manner and left to get M.D. some water. When she returned she asked him why he did not remove his boxer shorts. He said he was shy. She then asked if he was the police. He said, no, he was just shy. At this point, the Respondent made a hand motion indicating masturbation and asked, “do you want?” M.D. asked, “how much?” She said, “40,” meaning $40. M.D. asked if she would “suck” him, referring to oral sex. The Respondent said, “no, only,” and repeated the hand gesture for masturbation. He declined, saying that he was too shy, and that he was married. This was a pre-arranged signal for his investigative team of law enforcement officers to enter the VIP and make an arrest for prostitution. M.D. identified the Respondent to the arresting officers and explained to the Respondent that she was being arrested for prostitution. The Respondent understood the charge and loudly denied it. The Respondent again denied the charges in her testimony at the hearing. She said there was a misunderstanding between M.D. and her due to her poor command of English (and his inability to speak or understand Chinese). She said that she actually asked M.D. if he wanted an additional hour of massage and that she was referring to the charge for that when she said, “40.” Although there were some minor details of M.D.’s testimony that were inconsistent or misremembered and later corrected, his testimony as to essentially what occurred at VIP on November 12, 2015, was clear and convincing, especially since it was consistent with what was in the arrest affidavit he signed under oath that same day. The Respondent’s argument that it was all a misunderstanding due to a language barrier is rejected. She appeared to have little difficulty understanding some of the conversation between him and her regarding his massage, or understanding the criminal charge when she was arrested, and there was no mistaking the meaning of her hand gesture for masturbation. The Respondent also raised the question why she would have waited until returning with water to ask if he wanted her to masturbate him. While there is some appeal to the logic of her argument at first blush, there are a number of plausible explanations for her timing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: finding the Respondent guilty of violating sections 480.046(1)(p), 480.0485, and 456.072(1)(v); fining her $2,500; revoking her license to practice massage therapy; and awarding costs of investigation and prosecution of this matter to the Petitioner. DONE AND ENTERED this 1st day of November, 2017, 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 1st day of November, 2017.
The Issue Did Respondent, Jianping Liu, L.M.T. (Ms. Liu), induce patients N.D. and J.H. to engage in sexual activity or engage in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment? Did Ms. Liu massage patient N.D. at a location not licensed as a massage establishment and without exemption? Did sexual misconduct occur in Respondent, Queen Spa, Inc.’s (Queen Spa), massage establishment? Did Queen Spa’s backpage.com and anyitem.org advertisements induce or attempt to induce, or engage or attempt to engage, clients in unlawful sexual misconduct? Did Queen Spa fail to include its license number in its backpage.com and anyitem.com advertisements?
Findings Of Fact Section 20.43 and chapters 456 and 464, Florida Statutes, charge the Department with licensing and regulation of massage therapy. At all times material to the allegations in the Administrative Complaint, Ms. Liu was a licensed massage therapist in the State of Florida. She holds license MA 68834. At all times material to the allegations in the Administrative Complaint, Queen Spa was a licensed massage therapy establishment in the State of Florida. It holds license MM 32567 registered at 10915 Bonita Beach Road, Unit 1121, Bonita Springs, Florida 34135, and license MM 32546 registered at 51 9th Street South, Naples, Florida 34102. Patient N.D. was a criminal investigation detective for the narcotics and vice division of Lee County Sheriff’s Office. On March 27, 2014, N.D., as part of an undercover investigation, scheduled an appointment for a massage at Ms. Liu’s home, 9951 Utah Street, Bonita Springs, Florida 34135. During the massage, Ms. Liu touched N.D.’s penis and asked if he wanted it massaged. N.D. offered an additional $50.00 tip and Ms. Liu began masturbating his penis. Ms. Liu was charged with prostitution. On April 30, 2014, Ms. Liu entered into a deferred prosecution agreement with the Lee County State Attorney’s Office. Ms. Liu’s home on Utah Street has a home occupational license issued by the city for a massage therapy administration office. It is not a licensed massage establishment. J.H. is a police officer in the crime suppression unit for the City of Naples, Florida. On May 9, 2014, the Naples Police Department began investigating Ms. Liu’s massage parlor. On July 24, 2014, J.H., as part of an undercover investigation, scheduled a massage appointment with Ms. Liu at the Queen Spa in Naples. After the massage, J.H. gave Ms. Liu a $20.00 tip and she gave him a separate business card. She explained this card was for “special customers” and had a different phone number than her regular card. J.H. scheduled a second massage for July 29, 2014. At some point near the end of that massage, J.H. asked if Ms. Liu offered special or extra services. Ms. Liu replied by asking if he was trouble or a cop. J.H. asked how much it would cost, but Ms. Liu did not take additional payment. Ms. Liu then began masturbating J.H.’s penis until he ejaculated. Ms. Liu contends that penis manipulation is part of a “full body” massage. But she testified during the hearing that this was an additional service to the full body massage. Further, she testified that she only conducted each “extra service,” because J.H. and N.D. requested it. This establishes that masturbation was not part of the massage. It was a sexual service. Testimony of the expert witness Jennifer Mason also proves this fact. Backpage.com is a classified advertising website that contains listings explicitly for prostitution. The adult entertainment section of backpage.com is linked to the majority of the Naples police investigations into prostitution. Ms. Liu posted ads for Queen Spa on backpage.com and anyitem.org. The backpage.com ad titled “erotic pleasure” was listed in the adult services section. The anyitem.org ad titled “erotic pleasure” was listed in the escort section. Ms. Liu contends the postings did not advertise sexual services and that the application on her phone mistranslated the word erotic from Mandarin to English. However, the character of backpage.com and posting the advertisements as adult services, rather than as massage services, supports the conclusion the postings advertised sexual activities. The backpage.com and anyitem.com advertisements did not include the license number of Queen Spa. Touching of the genitalia is not within the scope of a full body massage. Stimulation of the genital area is considered sexual misconduct. It is not part of an ethical massage. There is no therapeutic value to massaging a client’s penis. Sexual innuendo or stimulation is a problem in massage therapy. The industry has worked to remove it from the practice to create a safe and therapeutic environment. Training of massage therapists requires them to “decline, leave the room, terminate the massage” when sexual stimulation is requested by a patient. When discussing “extra services,” Ms. Liu told J.H. about her friend who got into trouble after performing certain acts and that the friend had lost her license; “no license, no job”. Ms. Liu engaged in sexual misconduct with J.H. just three months after she signed a deferred prosecution agreement disposing of the Lee County charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Health, Board of Massage Therapy, enter a final order: finding that Respondent, Jianping Liu, L.M.T., violated sections 480.0485 and 480.046(1)(o), Florida Statutes; revoking her license; requiring the payment of an administrative fines in the amount of $2,750.00; and awarding costs for the investigation and prosecution of this case to the Department. Based on the foregoing Findings of Fact and Conclusions of Law, it is also RECOMMENDED that Petitioner, Department of Health, Board of Massage Therapy, enter a final order: finding that Respondent, Queen Spa, Inc., violated sections 480.046(1)(e) and 480.0465, Florida Statutes, and Florida Administrative Code Rule 64B7-26.010; revoking its license; requiring the payment of an administrative fine in the amount of $4,000.00; and awarding costs for the investigation and prosecution of this case to the Department. DONE AND ENTERED this 2nd day of October, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2015.
