The Issue The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of chapter 480, Florida Statutes, as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The following Findings of Fact are based on the testimony presented at the final hearing, exhibits accepted into evidence, and admitted facts set forth in the pre-hearing stipulation. Petitioner is the State agency charged with regulating the practice of massage therapy pursuant to section 20.43, Florida Statutes; chapter 456, Florida Statutes; and chapter 480, Florida Statutes. At all times material to the Complaint, Respondent was licensed to practice massage therapy in Florida since April 27, 2016, having been issued license number MA81902. Respondent’s address of record is 3830 Williamsburg Park Road, Jacksonville, Florida 32257. She also maintains an address of 121 East Norwood Avenue, Apartment C, San Gabriel, California 91776. Respondent moved from her native country, China, to the United States in 2012. Respondent’s native language is Mandarin Chinese and her ability to communicate in English is very limited. The JSO Vice Unit is the law enforcement office which investigates prostitution at massage therapy establishments in Jacksonville. Detective N.E. has been a civilian law enforcement officer for approximately 13 years. He was working in the JSO Vice Unit on June 29, 2017. As a member of the vice unit, Detective N.E. has conducted approximately 10 to 20 undercover prostitution investigations of massage therapy establishments. On or about June 29, 2017, JSO conducted an undercover prostitution investigation at Luxury Massage located at 3830 Williamsburg Park Road, Suite 4, Jacksonville, Florida. Detective N.E. entered Luxury Massage undercover, posing as a client. Detective N.E. requested a 30-minute massage from Respondent, for which he paid Respondent $50. Respondent escorted Detective N.E. to a massage room where Detective N.E. completely disrobed and laid face down on the massage table. As Detective N.E. lay on his stomach, Respondent began performing a massage on him. A towel was covering him as he lay on his stomach. Respondent massaged Detective N.E.’s back, and she later asked him to flip over onto his back, which he did. While Detective N.E. was on his back, Respondent began massaging his chest. At some point, Respondent pointed to Detective N.E.’s penis. Then Detective N.E. asked Respondent “is $60 good?” Respondent nodded her head indicating, “yes.” Detective N.E. continued to ask Respondent questions, for example, whether Respondent would use oil and Respondent verbally responded, “yes.” When asked whether she had towels to avoid making a mess, Respondent again verbally responded, “yes.” Although Respondent did not testify at hearing, Respondent’s verbal responses were recorded on a concealed recording device as part of the investigation. At hearing, Detective N.E. testified that Respondent grabbed his penis after she pointed to it. However, there was no allegation that Respondent touched Detective N.E.’s penis in the police report, which was prepared following Respondent’s arrest. On cross-examination, Detective N.E. explained that Respondent’s touching of his penis is not routinely included in the police report. The undersigned finds it unusual that touching of genitalia would be excluded from a police report when conducting a prostitution investigation. Detective N.E.’s testimony on this point is not accepted. Respondent denied that she engaged in any sexual activity in her response to the Complaint. Based on the totality of the circumstances, the undersigned finds that Respondent offered to massage Detective N.E.’s penis for $60.00. After the encounter, Detective N.E. gave a signal and Respondent was arrested by other law enforcement officers who came on the scene. Respondent was positively identified by Detective N.E. on the scene and at the final hearing. Katelin Reagh is a licensed massage therapist and based on her education, training, and experience, she is accepted as an expert in massage therapy. Ms. Reagh opined that offering to massage a patient’s genitalia is not within the scope of practice for massage therapy. As noted in the deposition testimony of Ms. Reagh, there is no accepted practice within the scope of licensed massage therapy that allows a therapist to ever touch, or offer to touch, the genitalia of a patient. Respondent’s actions on June 29, 2017, were outside the scope of generally accepted treatment of massage therapy patients. Respondent used the massage therapist-patient relationship to attempt to engage Detective N.E. in sexual activity when she offered to massage Detective N.E.’s penis, by pointing at the detective’s penis and agreeing to accept $60 payment for the service. There is no evidence that Respondent has had any prior discipline imposed against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Massage Therapy, enter a final order finding the following: Ms. Fengyan Liu, L.M.T. in violation of section 480.0485 and rule 64B7-26.010; Revoking her license to practice massage therapy; Imposing a fine of $2,500; and Assessing costs in an amount to be determined by the Board. DONE AND ENTERED this 16th day of November, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2018.
The Issue The issue in this case is whether Respondent, Hae Suk Bornholdt, committed the offense alleged in an Amended Administrative Complaint issued June 12, 2000, and, if so, what penalty should be imposed upon Respondent.
Findings Of Fact Petitioner, the Department of Health, Board of Massage Therapy (hereinafter referred to as the "Board"), is the state agency charged with the authority and duty to regulate the practice of massage therapy in the State of Florida. Chapters 20, 456, and 480, Florida Statutes. Respondent, Hae Suk Bornholdt, applied for licensure as a massage therapist in the State of Florida on December 1, 1999. Ms. Bornholdt's application for licensure was approved and she was licensed as a massage therapist in the State of Florida effective December 28, 1999. Respondent's license number is MA 30419. At all times relevant to this proceeding, Ms. Bornholdt was employed by Fame Limited, Inc. (hereinafter referred to as "Fame"). Fame is located at 4799 North Federal Highway, Boca Raton, Florida. Fame is a massage establishment. On December 2, 1999, an undercover policy investigation was begun of Fame in response to anonymous complaints of sexual activities between massage therapists and male clients of Fame. Robert F. Flechus, a detective with the Boca Raton Police Department, entered Fame posing as a client. Detective Flechus paid $80 for a massage. He was greeted by Ms. Bornholdt, who identified herself as "Tina." Ms. Bornholdt led Detective Flechus to a locker room where he undressed, left his clothes in a locker, and wrapped a towel around himself. Detective Flechus took a sauna and was then led by Ms. Bornholdt to a shower room where he showered. Ms. Bornholdt washed Detective Flechus, including his buttocks, with a sponge. After showering, Ms. Bornholdt led Detective Flechus into a room where she gave him a massage. During the massage, Ms. Bornholdt suggested that Detective Flechus masturbate while she massaged his stomach. When he refused, Ms. Bornholdt took Detective Flechus' hand and attempted to place it on his penis. Detective Flechus immediately pulled his hand away. Ms. Bornholdt then removed the towel that was partially covering Detective Flechus' genitalia and began to stroke his penis. Detective Flechus stopped Ms. Bornholdt and got up off the massage table. Ms. Bornholdt failed to properly drape Detective Flechus when she allowed his penis to be exposed to her during the shower and while he was on the massage table. Ms. Bornholdt was not licensed as a massage therapist on December 2, 1999. Ms. Bornholdt acted as a massage therapist with Detective Flechus and other clients prior to receiving her license on December 28, 1999. Detective Flechus' testimony in this matter was clear, consistent, and credible. Ms. Bornholdt's testimony on the other hand was inconsistent, unconvincing, and not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Massage Therapy finding that Hae Suk Bornholdt committed the offense alleged in the Amended Administrative Complaint issued on June 12, 2000; it is further RECOMMENDED that the Board of Massage revoke Ms. Bornholdt's license to practice massage therapy and assess the costs of investigating and prosecuting this case. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2000. COPIES FURNISHED: Dennis G. King, Esquire Rudolph C. Campbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Mail Stop 39 Tallahassee, Florida 32308 Lawrence K. Fagan, Esquire LaValle, Brown, Ronan & Soff 750 South Dixie Highway Boca Raton, Florida 33432 William H. Buckhalt, Executive Director Board of Massage Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue 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
The Issue The issues to be determined in this case are whether Respondent, Si Fang Tao, engaged in sexual misconduct in the practice of massage therapy, in violation of sections 480.046(1)(p) and 480.0485, Florida Statutes (2014-2015); and if so, what is the appropriate sanction.
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 (2016). At all times material to the complaint, Respondent was licensed to practice massage therapy in the state of Florida, having been issued license number MA 76085 on or about April 21, 2014. At all times material to the complaint, Respondent owned and operated Massage Connection 1 (Massage Connection), located at 11301 South Orange Blossom Trail, Suite A-209, Orlando, Florida 32837. At all times material to the complaint, Respondent was the sole massage therapist working at Massage Connection. The Metropolitan Bureau of Investigation (MBI) is a joint police task force for Orange County and Osceola County. MBI routinely investigates narcotics, vice, human trafficking, and organized crime. In June and July 2015, MBI conducted an undercover operation for suspected acts of prostitution occurring at Massage Connection. Officer Q.A. has been a deputy sheriff with the Orange County Sheriff’s Office since 2007 and was working in the Vice and Organized Crime Unit of MBI on June 12, 2015. On June 12, 2015, Officer Q.A. entered Massage Connection posing as a patient and requested a 60-minute massage from Respondent, who introduced herself as “Michelle.” Officer Q.A. paid Respondent $80.00 for the massage, and Respondent led Officer Q.A. to a massage room where Officer Q.A. disrobed completely and lay face down on the massage table. Respondent did not drape Officer Q.A.’s buttocks or genitals during the course of this massage. Respondent repeatedly touched Officer Q.A.’s inner thighs, lightly touching them with the back of her hands, palm of her hands, and fingernails. Respondent pointed to Officer Q.A.’s penis and made a hand gesture with a clenched fist moving up and down, colloquially understood to indicate manual masturbation of the penis. Respondent then told Officer Q.A., “I can massage your full body” and asked how much he would pay for this. Respondent agreed to perform the manual masturbation of Officer Q.A.’s penis for an additional $80.00 and told Officer Q.A. not to tell anyone that she was doing this. Respondent asked Officer Q.A. for the money, accepted partial payment of $50.00 from Officer Q.A., and left the room. When Respondent returned to the room, she exposed her breasts to Officer Q.A. Respondent then began massaging Officer Q.A. again and touched his penis, at which point Officer Q.A. stated he did not want to proceed with manual penile masturbation. Officer F.M. has been a law enforcement officer with the Orange County Sheriff’s Office for the past nine years and was working in the Vice and Organized Crime Unit of MBI on July 8, 2015. On July 8, 2015, Officer F.M. entered Massage Connection posing as a patient and requested a 30-minute massage from Respondent, who introduced herself as “Crystal.” Officer F.M. paid Respondent $55.00 for the massage, and Respondent led Officer F.M. to a massage room where Officer F.M. disrobed completely and lay face down on the massage table. Respondent did not drape Officer F.M.’s buttocks during the course of this massage. When Officer F.M. turned over during the massage, Respondent covered Officer F.M.’s genitals with a small towel but then placed her hand on top of Officer F.M.’s penis and asked if he wanted Respondent to massage him there. Respondent told Officer F.M. that she had a very good technique and made a hand gesture with a clenched fist moving up and down, colloquially understood to indicate manual masturbation of the penis. Respondent told Officer F.M. that she would rub him “very good.” When Officer F.M. asked Respondent for oral sex, Respondent offered to expose her breasts instead. When Officer F.M. asked if he could receive a nude massage from Respondent if he returned to Massage Connection, Respondent again offered to expose her breasts instead. Officer F.M. then asked Respondent how much the “full body massage” would cost while pointing at his penis, indicating manual masturbation of his penis. Respondent indicated that a “fully body massage” would cost an additional $40.00. When Officer F.M. told Respondent that $40.00 was too much just to “jerk [him] off,” or masturbate him, Respondent stated that she does a “good job” and people tip her $20.00 even if she does not “massage [them] there.” Officer F.M. declined, stating that “$40 for a hand job is a lot.” Respondent replied “no, it’s very good technique,” and told Officer F.M. “how about for you, $35?” Officer F.M. again declined, and the massage concluded. On July 9, 2015, both MBI Officers Q.A. and F.M. positively identified Respondent as the massage therapist that had offered to perform sexual acts on them. It is common for patients to be completely disrobed during a massage. However, massage therapists must drape the patient to maintain professional boundaries. Generally, a patient is completely draped and only the areas being massaged at that time are exposed. At the very least, appropriate draping of a patient requires draping of the buttocks and genitalia and the breasts of female patients, unless the patient gives specific informed consent to be undraped. Massaging the upper inner thigh of a patient without first obtaining informed consent is outside the scope of practice of massage therapy. Informed consent from the patient is necessary before massaging the upper inner thigh due to the sensitive nature of the area, to avoid confusion about the intent of the touch, and to maintain boundaries. If a massage therapist does not clarify this treatment, it can indicate that the massage therapist is willing to engage in sexual activity. There is no generally accepted massage therapy technique that requires massage therapists to use the back of their hands to massage the inner thigh of a patient. There is no generally accepted massage therapy technique that requires massage therapists to use their fingernails to lightly touch a patient’s inner thigh. Using fingernails to lightly touch the inner thigh of a male patient during a massage can cause sexual arousal and is not likely to be therapeutic. There is no accepted practice within the scope of massage therapy that allows massage therapists to touch or massage the penis of a patient. There is no accepted practice within the scope of massage therapy that allows massage therapists to expose their breasts to a patient. The following constituted sexual activity outside the scope of massage therapy and sexual misconduct in the practice of massage therapy: Respondent’s failure to drape Officer Q.A.’s buttocks and genitals; her exposure of her own breasts to Officer Q.A.; the light touching of Officer Q.A.’s inner thighs with the back of her hands and fingernails; the touching of Officer Q.A.’s penis; and her offering or agreeing to masturbate Officer Q.A.’s penis. The following constituted sexual activity outside the scope of massage therapy and sexual misconduct in the practice of massage therapy: Respondent’s failure to drape Officer F.M.’s buttocks; her touching of Officer F.M.’s penis; offering or agreeing to masturbate Officer F.M.’s penis; and her offering to expose her breasts to Officer F.M.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health, Board of Massage Therapy, finding that Ms. Tao violated section 480.046(1)(p), by violating section 480.0485. For these violations, it is recommended that the Board impose a $2,500 administrative fine on Respondent, revoke Respondent’s license to practice massage therapy, and require Respondent to pay the Department’s costs of investigation and prosecution of this matter. DONE AND ENTERED this 25th day of April, 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 25th day of April, 2017. COPIES FURNISHED: Carrie Beth McNamara, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Oaj S. Gilani, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Si Fang Tao 335 Rome Street San Francisco, California 94112 Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed) Claudia Kemp, JD, Executive Director Board of Massage Theraphy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-3257 (eServed)
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, or in the practice of a health profession, in violation of section 456.072(1)(v), Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Department, Board of Massage Therapy (Board), is the state agency charged with regulating the practice of massage therapy in the State of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. At all times material to the complaint, Ms. Wang was a licensed massage therapist within the State of Florida, having been issued license number MA 80935 on or about December 31, 2015. Ms. Wang's address of record is 9844 Sandalfoot Boulevard, Boca Raton, Florida 33428. Ms. Wang began working as a massage therapist at Wellness Spring Center (Wellness) 7865 West Sample Road in Coral Springs, Florida, on May 2, 2016. On or about May 26, 2016, the Coral Springs Police Department (CSPD) conducted a prostitution investigation at Wellness. Detective Gariepy, a detective in the vice, intelligence, and narcotics unit of the CSPD, working undercover, requested a one-hour full body massage and was advised it would cost $60.00. Detective Gariepy paid the $60.00 in official investigative funds, and he was escorted to a private room. Detective Gariepy got undressed and lay face down on a massage table. Ms. Wang provided Detective Gariepy with a massage. Ms. Wang began working on Detective Gariepy's back side, and later asked him to flip over onto his back, which he did. She then massaged the front side of his body. She put her hand on his testicles and then on his penis, and began stroking it in a sexual manner. After only a few seconds, Detective Gariepy stopped her, saying he was a married man. Detective Gariepy testified on cross-examination that Ms. Wang never asked him for any money when she was touching him. Detective Gariepy got dressed and left the massage establishment. CSPD officers entered the massage establishment and made contact with Ms. Wang, who was then positively identified by Detective Gariepy as the therapist who massaged him. It was stipulated by the parties prior to hearing that Ms. Wang provided Detective Gariepy with a massage. Ms. Wang's contrary testimony at hearing, to the effect that the person to whom she gave a massage that day was not Detective Gariepy was not credible and is rejected. Her testimony that she did not inappropriately touch Detective Gariepy's testicles and penis, was not credible and is rejected. While Detective Gariepy admitted he was unable to pick out a photograph of Ms. Wang a little over two years later in a deposition, he explained that as he was receiving the massage, he focused on exactly what Ms. Wang was wearing and concentrated on her physical features so that he could positively identify her to the arresting officers. The parties stipulated prior to hearing that Ms. Wang was positively identified by Detective Gariepy as the therapist who had massaged him. His testimony was credible. On May 26, 2016, Ms. Wang used the massage therapist- patient relationship to attempt to engage Detective Gariepy in sexual activity. Ms. Wang engaged in sexual misconduct in the practice of massage therapy. Ms. Wang 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 Florida Department of Health, Board of Massage Therapy, enter a final order finding Ms. Yangling Wang in violation of sections 480.0485 and 456.072(1)(v), 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 24th day of October, 2018, 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 24th day of October, 2018. COPIES FURNISHED: Gerald C. Henley, Esquire Kimberly L. Marshall, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Hongwei Shang, Esquire The Law Office of Hongwei Shang, LLC 7350 Southwest 89th Street, Suite 100 Miami, Florida 33156 (eServed) Louise Wilhite-St Laurent, Interim General Counsel Department of Health 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)
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.
The Issue The issues to be determined in this case are whether the Respondent, Lauren Dillman-Bell, obtained her Florida license to practice massage therapy through fraud or error, in violation of section 456.072(1)(h), Florida Statutes (2009), or made misleading, untrue, deceptive, or fraudulent representations on her application for licensure, in violation of section 456.072(1)(w), both of which constitute violations of section 480.046(1)(o); and if so, the appropriate sanction. (Unless otherwise indicated, citations to the Florida Statutes and rules of the Florida Administrative Code refer to the versions in effect when the Respondent’s license was issued on July 1, 2009.)
Findings Of Fact The 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 (2016). At all times material to the Administrative Complaint, the Respondent was licensed to practice massage therapy in the State of Florida, having been issued license number MA 56509 on or about July 1, 2009. When the Respondent applied for licensure in June 2009, she answered “no” to a question whether she had “ever been convicted of, or entered a plea of guilty, nolo contendere, or no contest to a crime in any jurisdiction other than a minor traffic offense.” When the Respondent’s license was issued, the Petitioner was unaware that the answer to the question on the application should have been “yes.” This was not brought to the Petitioner’s attention until June 2013. The Petitioner investigated, and the Administrative Complaint was filed. It is clear from the evidence presented at the hearing that the Respondent entered the following pleas in the District Court of Oklahoma County, Oklahoma, in December 2005: guilty to one count of possession of a controlled, dangerous substance with intent to distribute; guilty to one count of possession of a controlled, dangerous substance (methamphetamine) with intent to distribute; guilty to one count of possession of a stolen vehicle/receiving stolen property; and guilty to two counts of possession of a weapon. Although the Respondent did not appear or testify at the hearing, it can be inferred that she knew or should have known that her answer to the question on her license application about criminal convictions and guilty pleas was false. Even if the answer were unintentionally false, the Petitioner relied on it when it issued the Respondent’s license without conducting any investigation into the Respondent’s fitness for licensure notwithstanding the guilty pleas. (It also could be inferred from the Respondent’s failure to pursue her request for a hearing, and her failure to provide effective contact information so as to receive notices regarding the case, that she has withdrawn and waived her disputes as to the facts alleged in the Administrative Complaint.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued: (1) finding that the Respondent violated section 480.046(1)(o) by violating sections 456.072(h) and (w); and (2) revoking her massage therapy license. DONE AND ENTERED this 30th day of May, 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 30th day of May, 2017. COPIES FURNISHED: Lauren Dillman-Bell, L.M.T. 5033 Lords Avenue Sarasota, Florida 34231 Lealand L. McCharen, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Jaquetta Johnson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Claudia Kemp, JD, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed)
The Issue The issue to be decided is whether Respondent 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 Department of Health 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 times material to the allegations in the Administrative Complaint, Respondent, Giuseppe Chiarizia, was licensed as a massage therapist in the State of Florida, having been licensed on August 26, 2008, and issued license number MA54313. At the time of the alleged incident in this case, his license was clear and active. Teri Ingram and M.C. are close friends who reside, with their respective spouses, in Illinois. In late September, early October of 2008, the two couples were vacationing in Panama City. On or about October 1, 2008, Ms. Ingram and T.C. went to the Salon Baliage and Spa for a massage. Upon arriving at the spa, the women were led to a room to fill out paper work, and offered some refreshments, which they declined. Each woman was then taken back for the services they were receiving. Ms. Ingram was called back first, and had a facial and a massage. M.C. was having similar services. After Ms. Ingram's massage was finished, she returned to the waiting room to wait for M.C. At some point, an employee at the spa came to her and told her that M.C. was in another room and wanted to see her immediately. As Ms. Ingram approached the room, M.C. came out. She was dressed, but was shaking and crying hysterically. Ms. Ingram described her as "all hunched over, more like hugging herself." M.C. wanted to call the women's husbands and leave the spa. Ms. Ingram notified the manager that something had happened but she was not sure what, and that they were leaving the spa. Ms. Ingram paid for her services; she did not know if M.C. did so as well. The two women went outside, and while waiting for their husbands, M.C. told Ms. Ingram that the massage therapist, Respondent, had touched her. Ms. Ingram asked her what she meant by that statement, and M.C. told Ms. Ingram that the massage therapist had rubbed his genitals across her hands and her shoulders during her massage, and that once he began the massage he slipped his finger inside her vagina. M.C. stated that she told him to leave the room and to leave her alone, and in response, he held her down and told her he was sorry. She asked him repeatedly to leave the room and he finally did so. Once their husbands arrived, the two couples drove to the Panama City Beach Police Station to report the incident. Deputy Andrew LoTurco was employed by the Bay County Sheriff's Office. He was dispatched to the Panama City Beach Police Department to respond to M.C.'s complaint of sexual battery. When he encountered M.C., she was very distraught and embarrassed. After hearing her complaint and speaking with M.C., her husband and a lady, presumably Ms. Ingram, Deputy LoTurco transported M.C. to the Bay Medical Center for examination, and turned over the investigation to Deputy Jason Larson. Deputy Larson met with M.C. and also observed that she was extremely upset and had been crying. During the interview, she was withdrawn. M.C. related to Deputy Larson an account of what happened that was essentially the same as what she had stated to Ms. Ingram. She identified the massage therapist as Respondent. At some point, Respondent was taken to the Sheriff's Office, and Deputy Larson interviewed him and advised him of his Miranda rights. Respondent declined to give a taped statement, but did speak with Officer Larson. Initially, he denied M.C.'s report, but as the interview continued, he stated that it was possible he may have accidentally penetrated M.C.'s vagina with the tip of his finger. He also stated that if he was in his country, M.C. would have given him a tip and thanked him. At the hospital, a rape kit was administered. M.C. continued to be very upset by the incident, and the two couples shortened their planned vacation to return home as a result. Respondent claims that M.C. was a difficult client to massage because she was heavy-set. By contrast, Ms. Ingram testified that she thought M.C. was approximately five feet, four inches tall, and weighed approximately 140 pounds. Respondent also testified that during the massage, M.C. brought her hands out too far, making it difficult for him to continue massaging her and also avoid intimate contact with her hands. Finally, he claimed, essentially, that M.C. was masturbating during the massage. Respondent's testimony is not credited. Massage therapy training often involves blindfold massage, and 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 Florida Administrative Code 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 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.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Board of Massage Therapy enter a final order finding Respondent guilty of violating sections 456.063(1); 456.072(1)(v); 480.046(1)(h) and(o); and 480.0485, Florida Statutes, and Florida Administrative Code Rule 64B7-26.010; finding Respondent not guilty of violating rule 64B7-30.001(5); and imposing a fine of $1,000 and revoking his license to practice massage therapy. DONE AND ENTERED this 1st day of September, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 September, 2011. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Manshi Shah, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Giuseppe Chiarizia P.S.C. 451, Box 490 FPO, AE 09834 (giuseppechiarizia@hotmail.com) Nicholas W. Romanello, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32299-1701 Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32299-1701
