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.
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The Respondent, Dana Carlos, is a licensed massage therapist in the State of Florida, having been issued license number MA 0002811. The Respondent has been so licensed at all times material to this proceeding. On December 10, 1986, the Respondent was the co-owner of a massage establishment known as Massage by Dana and Jan, which at that time was located at 721 U.S. Highway 1, Suite 222, North Palm Beach, Florida 33408. That establishment was licensed by the State of Florida, having been issued license number MM 0000202. When Inspector Jean Robinson inspected that establishment on December 10, 1990, Gemma V. Koder was massaging a client without being supervised by either the Respondent or Jan Carlos. The client had come in early and Ms. Koder had called the Respondent by telephone to ask what she should do. The Respondent had told Gemma V. Koder to go ahead and start massaging the client and that she (the Respondent) would be there as soon as possible. The Respondent was approved as a sponsor for Gemma V. Koder, which sponsorship terminated on May 14, 1987. Gemma V. Koder was an apprentice for Dana Carlos. Gemma V. Koder had an apprentice license that allowed her to perform massages only when either the Respondent or Jan Carlos were physically present to supervise her. Either the Respondent or Jan Carlos could supervise Ms. Koder, because they were "co-sponsors." The Respondent later moved her massage establishment to 3700 Georgia Avenue, West Palm Beach, Florida. At that location she practiced massage under the name Massage by Dana and Jan. Dana Carlos leased the premises at that location. On April 13, 1988, the premises at 3700 Georgia Avenue were inspected by Inspector Jean Robinson. On that day Tammy Coxey was working as an unlicensed apprentice for the Respondent. The Respondent had applied for an apprentice license for Tammy Coxey, but the apprentice license was never approved by the Board of Massage. Therefore, the Respondent was never approved as a sponsor for Tammy Coxey and the Respondent knew that Tammy Coxey did not have an apprentice license or any other type of license. Nevertheless, admittedly motivated by profit potential, the Respondent disregarded the licensing requirements and put Tammy Coxey to work. On April 13, 1988, the room in which Tammy Coxey was performing massages as an employee of the Respondent was across the hall from the licensed massage establishment the Respondent was authorized to operate. The room in which Tammy Coxey was performing massages as an employee of the Respondent was never a licensed massage establishment. On the 6th and 7th of October, 1988, Sergeant Harvey Starr, of the West Palm Beach Police Department, called the establishment known as Massage by Dana and Jan and spoke to the Respondent on the telephone. He inquired about a "full body treatment" and was told that "all her girls gave full body treatments that included a release." In street jargon, a massage that includes "full body treatment including release," means a massage that includes masturbation to climax. On October 11, 1988, Sergeant Starr made an appointment for a massage and went to the premises of Massage by Dana and Jan, where he was met by the Respondent. Sergeant Starr told the Respondent that his name was "Richard," that he was the one who had called her on the telephone, and then asked what the charge was for a "full body treatment." The Respondent said it would be $25. Sergeant Starr than asked if that included a "release" and the Respondent told him that would cost $28. Sergeant Starr then specifically asked the Respondent if a "release" meant that he would be masturbated, and the Respondent answered that it did. Sergeant Starr then asked if the Respondent wanted to be paid. She, answered in the affirmative, Sergeant Starr handed her $30, and at that time he identified himself as a police officer and told her that she was under arrest. The Respondent was arrested on the charge of soliciting for the purpose of prostitution. Beginning in 1974 and for several years thereafter, in an effort to compete effectively, attract repeat business, and maintain market share in the Palm Beach County massage market, the Respondent engaged in the practiced of regularly masturbating massage clients.
Recommendation Upon consideration of all of the foregoing, it is recommended that the Board of Massage enter a Final Order in this case to the following effect: Dismissing all charges of violations set forth in Count II of the Amended Administrative Complaint; Dismissing the charges in Count III of the Amended Administrative Complaint that allege violations based on Section 480.47, Florida Statutes (the violations alleged at subparagraphs (a) and (c) of Paragraph 18 of the Amended Administrative Complaint); Finding the Respondent guilty of the violation charged in Count I of the Amended Administrative Complaint; Finding the Respondent guilty of the violations of Section 480.046(1)(e) and 480.046(1)(k), Florida Statutes, alleged in subparagraphs (b) and (d) of Paragraph 18 of Count III of the Amended Administrative Complaint; and Imposing a penalty , for the foregoing violations consisting of the revocation of the Respondent's license. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 4th day of June, 1990. MICHAEL M. PARRISH, 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 4th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 89-6091 Consistent with the requirements of Section 120.59(2), Florida Statutes, the following are my specific rulings on the proposed findings of fact contained in the Petitioner's Proposed Recommended Order. Paragraphs 1 through 5: Accepted in substance. Paragraph 6: Rejected as constituting a conclusion of law rather than a finding of fact. Paragraph 7: Rejected as irrelevant to charges in this case. Paragraphs 8 through 14: Accepted in substance. Paragraph 15: Rejected because only record basis is uncorroborated hearsay. Paragraphs 16 through 23: Accepted in substance. Paragraph 24: Rejected as subordinate and unnecessary, even though supported by record evidence. Paragraph 25: Accepted in substance. With regard to the post-hearing submissions of the Respondent, it is first noted that, even after a deadline extension of over a month, the Respondent's post-hearing submissions were filed late. Section 120.59(2), Florida Statutes, requires a ruling on each proposed finding only where proposed findings are submitted "in accordance with agency rules." Rule 22I-6.031(1), Florida Administrative Code, provides for the filing of proposed findings of fact and other proposed matters "within a time designated by the Hearing Officer." The Respondent's post-hearing materials were not submitted in accordance with the cited rule because they were filed beyond the extended deadline. Therefore, Section 120.59(2), Florida Statutes, does not require a specific ruling on each and every random sentence that might arguably constitute a proposed finding wherever found within the 47 pages of assorted post-hearing material submitted by the Respondent. Accordingly, while I have carefully read each of the 47 pages of post-hearing material submitted by the Respondent, I have not attempted the herculean task of gleaning through the Respondent's eclectic accumulation of papers and attempting to sort out the few statements that might arguably be construed as proposed findings of fact from the morass of arguments, statements of law, total irrelevancies, inappropriate documents (such as rejected exhibits), and other documents that serve no useful purpose. Suffice it to say that it is clear that the Respondent is of the view that the Petitioner has failed to prove its case, and it is clear from the findings of fact made in the Recommended Order that the Hearing Officer is, for the most part, of the view that the record in this case warrants an opposite finding. COPIES FURNISHED: Cynthia Gelmine, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Ms. Dana Carlos 4425 Rachael Way West Palm Beach, FL 33406 Mildred Gardner Kenneth D. Easley, Esquire Executive Director General Counsel, Department Board of Massage of Professional Regulation Northwood Centre 1940 North Monroe Street 1940 North Monroe Street Tallahassee, FL 32399-0792 Tallahassee, FL 32399-0792
Findings Of Fact Petitioner, Department of Business and Professional Regulation, is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 480, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Joyce Ann Borcina, is now, and was at all times material hereto, a licensed massage therapist in the State of Florida, having been issued license number MA 0011685. Respondent was, at all times material hereto, the owner and operator of Joy Therapeutic Massage, Inc., which was, at those times, a licensed massage establishment, license number MM 0002999, located at 2298 Northwest Second Avenue, office number 21, Boca Raton, Florida. As of the date of hearing, Joy Therapeutic Massage, Inc., was not licensed as a massage establishment. On or about July 15, 1993, an officer of the City of Boca Raton Police Department, operating undercover, received massage services from "Debby" at Joy Therapeutic Massage, Inc. The Officer paid $40 for the massage, tipped Debby $10, and asked her whether there "were any other services available?" Debby replied that she would be able to massage him both topless and bottomless for $100. On July 19, 1993, the Officer, again acting undercover, received massage services from respondent at Joy Therapeutic Massage, Inc. During the course of that massage, the Officer told respondent that the prior massage therapist had "said that I could get a massage and that she would be topless and bottomless." Respondent replied that "she couldn't do that unless she got to know me a little better." Notwithstanding, when the Officer turned over on his back to continue the massage, respondent began disrobing until she was naked and, as she began to massage him again grabbed his penis. The Officer declined, what he perceived and apparently was, an attempt to masturbate him, but inquired, as he was preparing to leave, whether "there [was] anything else we can do?" Respondent replied, "that maybe next time, as long as I could get to know her a little better." The Officer then paid respondent $50 for the massage and left. On July 27, 1993, the Officer, still operating undercover, kept an appointment for a massage with respondent at Joy Therapeutic Massage, Inc. At the commencement of that session, while she was disrobing, respondent agreed to engage in "regular sex" with the Officer for $100. Shortly thereafter, when she had finished disrobing, the Officer identified himself as a police officer and placed respondent under arrest. According to the court records filed in this case [Petitioner's exhibit 4], respondent pled nolo contendere to a one-count violation of Section 480.047(1)(c), Florida Statutes, which renders it unlawful for any person to "[p]ermit an employed person to practice massage unless duly licensed," a first degree misdemeanor. In response to such plea, the court withheld adjudication of guilt, placed respondent on probation for a term of six months, with the special condition that she perform thirty-five hours of community service, and imposed court costs of $105. Respondent offered no proof at hearing to explain the circumstances surrounding her plea of nolo contendere.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the charges set forth in Counts Two through Four of the administrative complaint, dismissing Count One of the administrative complaint, and revoking respondent's license as a massage therapist. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March 1995. WILLIAM J. KENDRICK 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 23rd day of March 1995.
The Issue The issues for determination in this case are whether Respondent committed the acts alleged in the Administrative Complaint, and if so, whether Respondent's license to practice massage therapy in Florida should be revoked or otherwise disciplined.
Findings Of Fact Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION (DBPR), is the agency of the State of Florida vested with the statutory duty and authority to administer the provisions of Chapter 480, Florida Statutes, governing massage practice. Respondent, ROBERT WILLIAM IVANY, was initially licensed as a massage therapist in the State of Florida on July 8, 1986, and presently holds license number MA 0006899 (Massage). Respondent's license is currently in "delinquent/renewal notice prepared" status. Respondent's current license biennium expires on January 31, 1997. At all material times hereto, Respondent was employed as a licensed massage therapist at the Pasadena Wellness Center in St. Petersburg, Florida. On or about January 28, 1994, complainant, Linda Schaufele, arrived at the Pasadena Wellness Center to receive a massage. Ms. Schaufele had been experiencing soreness in her shoulder and neck and wanted a massage to alleviate this condition. Ms. Schaufele had previously received massages many times; however, this was her first visit to the Pasadena Wellness Center. Ms. Schaufele was sent by the staff receptionist at the Pasadena Wellness Center to a massage room, where she removed her clothing except for her underwear. Respondent subsequently entered the massage room. Prior to this time, Ms. Schaufele did not know Respondent, and had no previous contact with Respondent. Respondent entered into a therapist-client relationship with Ms. Schaufele. Ms. Schaufele informed Respondent of the soreness in her shoulder and neck. Ms. Schaufele agreed to a full body massage, but requested Respondent concentrate on her shoulder and neck. Respondent began the massage with Ms. Schaufele lying on her stomach. Respondent used oil or lotion during the massage. After massaging her shoulders, neck and working down her back, Respondent turned Ms. Schaufele over to lie on her back and began to massage her from the waist down. At this time Respondent distinctly placed his hand between Ms. Schaufele's legs into her pubic area. Ms. Schaufele immediately stiffened her legs to prevent Respondent from continuing to keep his hand between her legs. Respondent removed his hand from between Ms. Schaufele's legs, and finished the massage. Respondent used the therapist-client relationship to engage in sexual activity with Ms. Schaufele. Ms. Schaufele was very uncomfortable during the remainder of the massage, and was upset about the Respondent's actions. Subsequent to this incident on January 28, 1994, Ms. Schaufele became acquainted with the owner of the Pasadena Wellness Center. Ms. Schaufele then informed the owner of the Respondent's actions which occurred during her massage on January 28, 1994. Ms. Schaufele was told by the owner that there had been other complaints regarding Respondent. On or about May 12, 1993, complainant, Nancy Scotti, arrived at the Pasadena Wellness Center to receive a massage. Ms. Scotti had never received a massage before, and had no prior experience with a licensed massage therapist. Ms. Scotti was instructed by the staff receptionist to fill out certain forms. Respondent then came to the reception area and led Ms. Scotti to a massage room. Ms. Scotti did not know Respondent, and had no previous contact with Respondent. Respondent entered into a therapist-client relationship with Ms. Scotti. Respondent instructed Ms. Scotti to "get ready", which in response to, Ms. Scotti undressed, except for her underwear, and lay down on her stomach on the massage table. Ms. Scotti covered herself with a sheet that was provided in the massage room. Ms. Scotti informed Respondent that she had experienced pain in her upper back, shoulders and neck. Ms. Scotti did not request any particular kind of massage. Respondent began the massage with Ms. Scotti lying on her stomach. Respondent massaged her neck, shoulders, and worked down her back. Respondent used and applied a lotion to Ms. Scotti's body during the massage. Respondent then proceeded to massage Ms. Scotti's arms and legs, working his way back to her inner thighs and crotch area. While massaging her inner thighs Respondent asked Ms. Scotti why she was not indicating her enjoyment of the massage. At this point Ms. Scotti was becoming increasingly uncomfortable and concerned; however, due to her apprehension and her inexperience with a licensed massage therapist Ms. Scotti did not express her concern, or otherwise stop the massage. Respondent then placed his hands inside Ms. Scotti's underwear and massaged her buttocks. Respondent turned respondent over on her back, and massaged her neck and shoulders. Respondent then uncovered and with one hand massaged Ms. Scotti's breasts, and with the other hand digitally penetrated Ms. Scotti's vagina repeatedly. Respondent used the therapist-client relationship to engage in sexual activity with Ms. Scotti. Ms. Scotti was frightened and alarmed. Respondent attempted to remove her underwear, and she pushed him away. Respondent then inquired if Ms. Scotti had reached orgasm. She did not respond, and Respondent concluded the massage session and left the massage room. Ms. Scotti remained frightened and alarmed. She dressed, left the Pasadena Wellness Center, and walked outside where her friends Audra Radvil, Bernadette Robinson, and Peg Etchison were waiting for her. At this time Ms. Scotti appeared distraught. She began crying and informed her friends what had occurred. Her friends observed a law enforcement officer in the parking lot, and approached the officer and related the incident. A second officer, Deputy Sheriff Craig Bornstein, was summoned to the scene. Ms. Scotti related the incident to Deputy Bornstein. Ms. Scotti was then transported to the Pinellas County Sheriff's Office where her sworn statement was taken by Detective Kenneth Kanoski. Ms. Scotti was then taken to the Pinellas County Health Unit where she underwent a sexual assault victim examination. The examination was conducted by Sylvia Franklin, an advanced registered nurse practitioner with extensive experience in conducting such examinations. The examination included drawing blood, taking vaginal and breast swabs, and obtaining saliva and urine samples. The chain of custody of the samples obtained during the examination was preserved. Detective Kanoski investigated this incident, and obtained a sample from Respondent of the lotion used by Respondent on Ms. Scotti. The lotion was Revlon Aquamarine Body Lotion. The specimens obtained during the examination of Ms. Scotti and the sample lotion obtained during the investigation by Detective Kanoski were sent for analysis to the Federal Bureau of Investigation (FBI) laboratory. The results of the FBI analysis showed the presence of isopropyl palmitate in the lotion obtained from Respondent, as well as in the vaginal and breast swab specimens taken during the examination of Ms. Scotti. Isopropyl palmitate is not a naturally occurring substance, and is not found in any product normally intended for use in the vaginal area. Isopropyl palmitate was contained in the lotion that was used by Respondent, and was introduced into Ms. Scotti's vagina as a result of Respondent's actions. Following this incident, Ms. Scotti has missed work and become withdrawn, depressed, and apprehensive toward others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Massage, enter a final order revoking Respondent's license to practice massage therapy. DONE and ORDERED this 15th day of October, 1996, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Robert W. Ivany 762 15th Avenue South St. Petersburg, Florida 33701 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anna Polk, Executive Director Board of Massage Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 engaged in sexual misconduct in the practice of massage therapy, in violation of section 480.0485, Florida Statutes; engaged in improper sexual activity, in violation of Florida Administrative Code Rule 64B7-26.010; or failed to appropriately drape a client, in violation of section 480.046(1)(i); and, if so, what is the appropriate sanction.
Findings Of Fact The Department, Board of Massage Therapy, is the state agency charged with regulating the practice of massage therapy within the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. Mr. Pruneda is a licensed massage therapist within the state of Florida, having been issued license number MA 63779. Mr. Pruneda's current address and address of record is 18 Walcott Drive, Boynton Beach, Florida 33426. On or about November 13, 2016, Mr. Pruneda was employed at Shanti Ohm Spa at 321 Northeast Second Avenue, Delray Beach, Florida 33444. On or about November 13, 2016, Patient L.G., a 29-year- old female, received a massage from Mr. Pruneda. Patient L.G. had received massages about 20 times before, and had received a massage from Mr. Pruneda on one prior occasion. The spa was normally closed on Sundays, but Patient L.G. called and requested massage appointments for massages for herself and her fiancé for Sunday, November 13, 2016. Mr. Pruneda testified that when an appointment for a massage is made, the receptionist gives the names of the massage therapists and the patient chooses among them. However, Patient L.G. testified that she did not request Mr. Pruneda. In any event, the spa made special arrangements for Mr. Pruneda and another massage therapist to come in to the spa on that Sunday. On November 13, 2016, Patient L.G. said that after filling out some paperwork, Mr. Pruneda came into the reception area and that was when she first learned he would be her massage therapist. Before the massage began, Patient L.G. disrobed and lay face-down on the massage table and covered herself with a large draping. Patient L.G. was wearing her underwear but no bra. Patient L.G. testified that at the beginning of the massage, Mr. Pruneda spent an excessive amount of time massaging the backs of her legs and that the strokes were coming very close to her buttocks, making her feel uncomfortable. After he moved on to her lower back, the massage went quickly, and she said that she remembered wishing he would spend more time on her back. After her back, he massaged her arms. Then Mr. Pruneda asked Patient L.G. to turn over onto her back, and Patient L.G. complied. Patient L.G. credibly testified that when she turned over, Mr. Pruneda did not avert his eyes and that he then failed to properly drape her, so she had to cover her breasts with the blanket herself. She did not give consent for him to leave her undraped. Patient L.G. testified that Mr. Pruneda again spent an excessive amount of time massaging the tops of her legs and that she felt his hand going under the strap of her underwear. She testified that he then moved her underwear aside and touched her genital area. She testified that she told him "no, no, no, no." She said that her eyes were closed and that she was in shock and fear. Patient L.G. testified that he had his hand on her shoulder and said to her, "If you say no it is no, if you say yes it is yes." She said that he did not try to improperly touch her again. She said that she felt uncomfortable and she adjusted the blanket. She testified that Mr. Pruneda continued the massage on her arms, up to the top, and then massaged her shoulders. Patient L.G. did not give informed consent for Mr. Pruneda to remove the draping from her breasts. Patient L.G. did not give informed consent for Mr. Pruneda to adjust or remove her underwear. Mr. Pruneda agreed that he had performed a massage on Patient L.G. on one prior occasion, but his testimony was otherwise contrary to that of Patient L.G.'s in every relevant aspect. He denied that he exposed Patient L.G's breasts, failed to appropriately drape her breasts, pulled aside her underwear, or touched her genital area. He testified that he simply performed a deep tissue massage with the appropriate level of care and professionalism. Mr. J.N., Patient L.G.'s fiancé, testified that although he and Patient L.G. each had an appointment for a 60-minute massage, his massage was completed first, and he had to wait for 10 to 15 minutes for his fiancé to complete hers. He said that when she came out, he noticed discomfort on her face and asked her if everything was okay. She replied that it was. On the way home, he asked her two more times if everything was okay, receiving the same response. He testified that when they had almost arrived at the house, she finally told him that she had been the victim of sexual misconduct. Patient L.G. confirmed this account, explaining that she said nothing to her fiancé in response to his questioning until they were close to the house to avoid an incident at the spa. Patient L.G. testified that after she returned to the house, she called the spa to report what had happened and, a couple of days later, also contacted the police. Mr. Pruneda introduced Exhibit R-3, a "Square Sales List" from Shanti Ohm Spa, which contained entries dated November 13, 2016, showing a tip of $20 from Patient L.G. to "Jorge," and a tip of $20 from J.N. to his therapist. The list also shows a single line drawn through the tip of $20 from Patient L.G. There was speculation at hearing that this was because the tip was later returned to Patient L.G., but no evidence from spa personnel was offered to explain the entries on the list. Mr. Pruneda argues that Patient L.G. would not have left a tip had she actually been sexually assaulted. Patient L.G. admitted at hearing that she did leave a $20 tip for Mr. Pruneda. She stated that she believed if she failed to do so, her fiancé would realize something was wrong and that she wished to avoid an incident while at the spa. Mr. Pruneda introduced into evidence a copy of a November 14, 2016, posting from a social media internet site belonging to a business specializing in cosmetic makeovers. The document showed Patient L.G. after a cosmetic makeover and contained her comment stating, "Thank you so much . . . I had so much fun today and feel amazing!! Off to rock this photo shoot thanks to you ladies!!" While Mr. Pruneda argues that this social media posting showed that Patient L.G.'s attitude on November 14, 2016, was completely inconsistent with that of a person who had actually suffered a sexual assault on the previous day, this argument is not accepted. Patient L.G. admitted the posting, but explained that the appointment had been made some time before, could not be rescheduled, and that she was obliged to go on with the session in order to meet deadlines for her upcoming wedding. Both the original and the Amended Administrative Complaint also charged that Mr. Pruneda touched Patient L.G.'s breasts without her consent. Further, Ms. Mason, expert witness of Petitioner, testified by deposition, based in part upon her review of the administrative report that had been prepared, that she was of the opinion that Mr. Pruneda's improper touching of Patient L.G.'s breasts constituted sexual misconduct. Yet at hearing, no evidence of Mr. Pruneda improperly touching or trying to massage Patient L.G.'s breasts was presented.1/ At that time, Patient L.G., the only person who could have made such an accusation, testified: Q: Did Mr. Pruneda ever try to massage anywhere on your chest? A: He was massaging my shoulder area. But no. Patient L.G. testified that after the incident, she was very upset for a very long time. Mr. J.N. testified that Patient L.G. felt nervous and had breakdowns. He testified that their relationship had changed a little bit, but that they were working to make it better and improve it going forward. Patient L.G.'s testimony as to the events that took place at the Shanti Ohm Spa on November 13, 2016, was precise, clear, and convincing. Ms. Mason credibly testified that she was familiar with the standards of practice of massage therapists in Florida and that the failure to properly drape a patient without express permission falls below those standards. Mr. Pruneda was fired from Shanti Ohm Spa.2/ He was restricted from the practice of massage therapy on female patients and, at the time of hearing, was no longer working as a massage therapist. Ms. Escalas testified that she has been married to Mr. Pruneda for 20 years and had been with him several years before they were married. She testified that the charges against him have damaged their lives and that it has been shameful to have to admit that he was being investigated. She testified that he was now working in a cleaning company, and eventually, would be working at a shower door company, but was making less money than he made as a massage therapist. Ms. Lima testified that although Mr. Pruneda is not her biological father, he has been just like her father for 20 years. She said that he has always demonstrated high values as a person and that he has never acted badly in all of that time. She testified that the accusations have greatly damaged the family. Mr. Pruneda has been licensed as a massage therapist for 30 years. Mr. Pruneda has never had any prior discipline imposed in connection with his massage therapy license. The case management system of the Clerk and Comptroller of Palm Beach County, Florida, contains no record of felony, criminal traffic, or misdemeanor charges involving Mr. Pruneda.
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 Jorge L. Pruneda in violation of sections 480.0485 and 480.046(1)(i) and rule 64B7-26.010; imposing a fine of $3,500; revoking his license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 1st day of November, 2017, 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 1st day of November, 2017.
The Issue The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of section 480.0485, Florida Statutes, and, if so, 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, Na Li was a licensed massage therapist in the state of Florida, holding license number MA71793. Between November 2013 and December 2013, Na Li was employed by A Golden Massage and Spa, located in Hallandale Beach, Florida, where she performed Swedish massages and deep tissue massages. During November and December 2013, M.B. assisted the Hallandale Police Department in a criminal investigation. On November 13, 2013, M.B., working in an undercover capacity with Detective R.S., went to A Golden Massage and Spa as a client seeking a massage. When M.B. and R.S. entered A Golden Massage and Spa, they were greeted by a woman who introduced herself as Cici. They told Cici that R.S. was M.B.’s boss, that he had just won some money in a casino, and that he was treating M.B. to a massage. R.S. paid for two massages and Cici led M.B. to a massage room and told him to disrobe. M.B disrobed and lay face down, covered by a towel. Na Li then came into the room and introduced herself as “Yumi.” She asked M.B. if he needed a massage in any particular place, to which he said “no.” Na Li put oil on her hands and began to massage M.B. from the neck down. Na Li was concentrating on M.B.’s lower back, and then removed the towel and began massaging M.B.'s buttocks and inner legs and thighs, occasionally touching M.B.'s testicles with the back of her hand. Each time Na Li touched M.B’s testicles, she would giggle. Na Li then asked M.B. to lie on his back. M.B. turned over, Na Li put a pillow behind M.B.’s head, and she covered his genitals with a towel. Na Li resumed massaging M.B., working his upper body, shoulders, and chest. Na Li then removed the towel and placed it to the side. Na Li began massaging M.B.’s upper thigh and again occasionally touched M.B.’s genitals with the back of her hand. She then indicated through gestures that M.B. should make a fist with his right hand and put it over his penis. When M.B. complied, she placed her own hand on top of M.B’s hand and began to move it in a circle and up and down. She was moving his hand, as M.B. testified, in a “masturbation way.” M.B. stopped Na Li and asked her “how much for her to do it.” Na Li giggled, and resumed massaging M.B. Then, a second time, she put his hand on his penis and her hand on top of his. Again, M.B. asked her how much. She replied “tip,” indicating that she would expect a better tip. M.B. did not agree to give a better tip, saying that his “boss” had his money. Na Li next began to massage M.B.’s arm, and worked down to his fingers. She then placed her face in M.B.’s left hand and tried to lick his middle finger. On December 4, 2013, M.B. again went to the A Golden Massage and Spa with R.S. as part of the continuing investigation. On this occasion, he paid for himself, and was again shown to a massage room. Na Li came into the room. M.B. and Na Li recognized each other, and Na Li giggled. She again asked M.B. if he needed a massage in any particular place; he again said no. She used oil and began to massage M.B., eventually removing the towel, massaging his thighs, and touching his testicles with the back of her hand. She began tickling M.B. and licking her lips while looking at M.B.’s penis. He asked her how much for her to “do it with her lips.” She giggled and continued tickling him, but gave no answer. When he again asked her how much, she said “no, no,” which M.B. interpreted as declining to engage in oral sex. M.B. did not ask that the draping covering his genitals be removed. He did not ask Na Li to touch his genitals or give her permission to do so on either November 13th or December 4th. Consistent with the testimony of Ms. Jennifer Mason, a licensed massage therapist and expert in massage therapy, there is no reason for draping to be removed during the course of a massage. If draping comes off by accident, it is usually put back on right away. There is no massage technique that requires the use of a massage therapist’s tongue or mouth. While massage of the buttocks and inner thigh of a male patient is sometimes appropriate, it should be done with careful draping and tucking of the drape to avoid inadvertent touching of the genitalia. There is never a reason for a massage therapist to touch a patient’s genitalia. Na Li’s actions on November 13 and December 4, 2013, were outside the scope of generally accepted treatment of massage therapy patients. Na Li’s contrary testimony, to the effect that she performed only standard massage techniques on M.B., was not credible and is rejected. Na Li used the massage therapist-patient relationship to attempt to induce M.B. to engage in sexual activity and to attempt to engage him in sexual activity. Na Li engaged in sexual misconduct in the practice of massage therapy. Na Li has never had any prior discipline imposed against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding Na Li in violation of section 480.0485, Florida Statutes, constituting grounds for discipline under section 480.046(1)(p), Florida Statutes; imposing a fine of $2,500.00; revoking her license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 23rd day of September, 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 23rd day of September, 2015. COPIES FURNISHED: Kristen M. Summers, Esquire Oaj S. Gilani, Esquire Brynna J. Ross, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Simon Patrick Dray, Esquire S. Patrick Dray, P.A. Penthouse I 40 Northwest Third Street Miami, Florida 33128 (eServed) Christy Robinson, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-3257 (eServed) Daniel Hernandez, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue Whether Respondent's license to practice massage in the state of Florida should be disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Petitioner is the state agency charged with regulating the practice of massage in the state of Florida. At all times material to this proceeding, Respondent was a licensed massage therapist in the state of Florida, holding license number MA 0007149. At all times material to this proceeding, Frank Calta's Health Connection (Health Connection) was not licensed as a massage establishment in the state of Florida. At all times material to this proceeding, Respondent did hold a license for a massage establishment in the state of Florida. In October 1989, the Respondent filed a licensure application with Department of Professional Regulation, Board of Medicine, Dietetics and Nutrition Practice Council (Council) for licensure as a Nutritional Counselor. In answering a request for all work experience as a Nutritional Counselor in the application, Respondent listed the Health Connection as an employer from "11/87 to present" (October 1989) and as to the position held, listed "massage therapist". Respondent's answers to questions in the application were under oath wherein he declared under penalty of perjury that his statements were true and correct. As part of this application to the Council, Respondent submitted a notarized statement by Frank Calta of the Health Connection indicating that Respondent had worked as a massage therapist at the Health Connection from "September 5, 1987 to the present" (September 11, 1989). The testimony of both Respondent and Frank Calta at the hearing established that Respondent was not employed by the Health Connection as such in that he was not paid a salary by the Health Connection or that he worked regular hours for the Health Connection. However, this same testimony established that Respondent did perform massages for Frank Calta and members of the Health Connection in between sets of exercises and at the end of the exercises. These massages were conducted at either the Health Connection located at the 4626 Busch Boulevard, Tampa, Florida address or the Florida Avenue Tampa, Florida address during the period from September 5, 1987 through September 11, 1989. The Respondent was compensated for these massages by the individual members or by Frank Calta through the use of the Health Connection. Other than the individual members of the Health Connection, the Respondent did not solicit business from the "general public" as such. It was Respondent's contention that these massages were performed at sports events. However, there was no evidence that the individual members or Frank Calta were involved in any type of sport competition at the time of the massages by the Respondent, but only exercising to keep their bodies in shape. There was sufficient competent substantial evidence to establish facts to show that Respondent was practicing "massage" as that term is defined in Section 480.033(3), Florida Statutes, in an unlicensed "establishment" as that term is defined in Section 480.083(7), Florida Statutes, during the period from September 5, 1987 through September 11, 1989. There was no evidence presented to show that Respondent's license as a massage therapist had ever been disciplined or that any disciplinary action, other than the instant case, had been taken against the Respondent.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, and the penalty guidelines set out in Rule 21L-30.002, Florida Administrative Code, it is, accordingly, RECOMMENDED: That the Board enter a Final Order finding Respondent guilty of violating Section 480.036(1)(n), Florida Statutes, and for that violation issue the Respondent a letter of reprimand and assess an administrative fine of $250.00. DONE and ENTERED this 3rd day of February, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 3rd day of February, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-2613 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner 1. - 4. Adopted in substance as modified in the Recommended Order in Findings of Fact 1, 2, 3, and 4, respectively. 5. - 7. Adopted in substance as modified in the Recommended Order in Finding of Fact 5. 8. - 9. Adopted in substance as modified in the Recommended Order in Finding of Fact 6. Neither relevant nor material to this proceeding other than as to Respondent's credibility as a witness. - 13. Adopted in substance as modified in the Recommended Order in Finding of Fact 7 and 9. 14. Rejected as not supported by competent substantial evidence in the record but in any event, is neither material nor relevant to this proceeding other than as to the extent of the disciplinary action taken. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Respondent has submitted what is titled Proposed Finding of Facts. However, it more of a conclusion of law or legal argument than finding of fact. As to the facts set out in paragraph 5 (unnumbered) see Finding of Fact 7. COPIES FURNISHED: Lois B. Lepp, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Aaron Benjamin 8319 Cross Timbers Drive East Jacksonville, FL 32244 Anna Polk, Executive Director Board of Massage 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
