The Issue The issue to be determined is whether Respondent violated sections 456.072(1)(h), 456.072(1)(w), and 480.041(1)(b), Florida Statutes (2010), as alleged in the Amended Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43 and chapters 456 and 480, Florida Statutes (2013). At all times relevant to the Amended Administrative Complaint, Respondent has been a licensed massage therapist in the State of Florida, having been issued license number MA 63711. Respondent is a native of China, and immigrated to the United States in approximately 2007. She speaks limited English. Respondent wanted to become a massage therapist. To that end, Respondent attended the massage therapy training program offered at Healing Hands Institute for Massage Therapy (Healing Hands) and completed her training program on or about October 17, 2010. The program at Healing Hands consisted of a 600-hour curriculum. At all times relevant to the allegations in the Amended Administrative Complaint, Healing Hands was a school accredited by the Commission on Massage Therapy Accreditation (COMPTA) and approved by the New Jersey Board of Massage Therapy. It was not, however, a Florida board-approved school for purposes of obtaining licensure in Florida. After Respondent’s attendance at Healing Hands, the school closed in good standing with COMPTA. Healing Hands had campuses in Flushing, New York, as well as in New Jersey. Respondent completed most of her course work at the Flushing campus because there were people there who spoke Chinese, making it easier for her to understand the curriculum. While still a student at Healing Hands, Respondent took and passed the National Certification Examination for Therapeutic Massage and Bodywork. She received notification that she had passed the examination by letter dated June 8, 2010. It is unclear from the letter whether it is actually dated June 8, 2010, or is referring to an examination given that date. In any event, after receiving notice that she had passed the necessary examination, Respondent applied for and received a license to practice massage therapy in the State of New Jersey. Her original license was issued February 24, 2011, and her current license in New Jersey is valid through November 30, 2014. Respondent received assistance in filling out the paperwork related to her New Jersey application from a friend named “Mike” who is a lawyer. Mike did not charge her for his assistance. According to Respondent, Mike completed the application forms for her and she reviewed them and signed them. There are no allegations in the Amended Administrative Complaint to indicate that her educational program at Healing Hands was not legitimate; that she did not take and pass the National examination; or that any actions taken to obtain her New Jersey license were fraudulent. Respondent was not required to provide any additional coursework or certifications beyond her Healing Hands transcript and proof of passing her national certification exam in order to obtain her New Jersey license. Respondent wished to move to Florida because she had heard that there are good jobs in massage therapy here. She knew that she would have to obtain a Florida license in order to work in Florida. To that end, she sought assistance from a person at Healing Hands that she identified as “Sean.” Although she referred to Sean as one of her instructors who taught the majority of her courses, there is no instructor listed on her transcript whose first name is identified as Sean. Although there is no direct evidence other than Respondent’s testimony regarding Sean, it seems more likely that, rather than being an instructor, Sean was an interpreter for the students who spoke Chinese. Respondent asked Sean to assist her with the process for getting a Florida license because other students had told her he had assisted them in obtaining licenses from other states. She paid Sean $1,000.00 to cover the cost of applying for her Florida license. Some of the money was paid in cash, and some was in the form of a money order. Respondent could not remember how much of the total was in money order form. The application fee and initial license fee are significantly less than $1,000. Respondent received her license to practice massage therapy in Florida on June 5, 2011. However, what actually happened between the time she asked Sean for help and when she got her license is unclear at best. On or about March 17, 2011, Respondent’s State of Florida application for licensure as a massage therapist was submitted to the Florida Department of Health, Board of Massage Therapy. The application was submitted electronically, and does not include Respondent’s signature. Respondent testified that she never filled out the application and never saw it before it was submitted to the Department of Health. While it is clear that Respondent did not personally submit the application, it is not clear who did. There is no competent evidence to demonstrate who completed the application and submitted it to the Board office. Respondent’s application indicated that she did not attend an apprenticeship program. It also indicates that, at the time of the application, she has never held a license or certificate, regardless of status, to practice any licensed profession; that she has not completed a 10-hour Florida laws and rules course; that she has not completed a two-hour course in the prevention of medical errors; and that she has not completed a three-hour HIV/AIDS course. On or about May 9, 2011, a transcript from the Florida College of Natural Health (FCNH) was submitted to the Department of Health in support of Respondent’s application. Also submitted were a Transfer of Credit Form and FCNH Certificates of Completion for 12 hours of Therapeutic Massage Training Program and two hours of Prevention of Medical Errors. Also submitted that day were a transcript from Healing Hands and a copy of the Official Candidate Score Report for the National Certification Examination for Therapeutic Massage and Bodywork, indicating that Respondent had achieved a passing grade. FCNH is an incorporated, nonpublic, post-secondary educational entity which holds a license issued by the Florida Commission for Independent Education, which regulates nonpublic post-secondary institutions pursuant to section 1005.32, Florida Statutes. FCNH is also accredited by the Accrediting Commission of approved schools and Colleges and by the Commission on Massage Therapy. FCNH is a board-approved massage school as that term is defined in section 480.033. In order to be a board-approved massage school, a school is required to offer a course of study that includes, at a minimum, 500 class hours, and is also required to supply to the Board as part of its application a sample transcript and diploma; a copy of curriculum, catalog or other course descriptions; faculty credentials; and proof of licensure by the Department of Education. Fla. Admin. Code Rule 64B7-32.003. As a licensed, accredited, and board-approved massage school, FCNH was and continues to be authorized to evaluate the transferability of credits from another institution to FCNH, including schools that are not board-approved. Any transferred credits could then be applied by FCNH toward the award of a diploma from FCNH, provided that FCNH adhered to the standards in rule 64B7-32.004, and completed, signed, and attached to the school’s transcript, the Board’s Transfer of Credit form, certifying the extent to which a student’s previously-earned credits were acceptable for transfer to FCNH. While the minimum number of class hours for licensure is 500 hours, the program at FCNH consists of 768 hours. At all times relevant to the allegations in the Amended Administrative Complaint, Glenda Johnson was FCNH’s registrar. Ms. Johnson had been employed by FCNH since 1996, and had the apparent authority to evaluate the transferability of credits from other educational institutions to FCNH, and to execute a Transfer of Credit Form certifying to the Board that a student’s credits earned at another institution would be acceptable to FCNH. The Transfer of Credit form stated that FCNH had evaluated Respondent’s transcript from Healing Hands and that the evaluation was conducted on April 18, 2011. The form indicated that Respondent needed ten hours of Florida laws and rules and two hours of medical errors instruction in order to qualify for licensure. The form, which was signed by Glenda Johnson as Registrar of FCNH, accepted a total of 488 hours from Healing Hands, including three hours for HIV/AIDS education. The FCNH transcript, signed by Glenda Johnson as registrar of FCNH, indicated completion of 500 program hours, including three hours for HIV/AID education as of April 22, 2011. It indicates completion of coursework regarding prevention of medical errors or Florida laws and rules. Like the transcript and the Transfer of Credit form, the certificates of completion for Therapeutic Massage Training Program (Transfer of Licensure) and for Prevention of Medical Errors were signed by Glenda Johnson. Respondent’s transcript from Healing Hands was also submitted with the documents received by the Board office on May 9, 2011. The transcript indicates that Respondent completed a 600-hour program at Healing Hands, including three hours for HIV/AIDS awareness. It appears that the documents submitted on May 9, 2011, were most likely submitted to the Board office by Glenda Johnson, as many of them are signed by her and appear to be documents from FCNH, where she worked. As registrar of the school, Ms. Johnson had the apparent authority to evaluate Respondent’s hours at Healing Hands for transfer, and that evaluation can be performed electronically. In other words, a student did not have to visit a FCNH campus in order for his or her prior credits to be evaluated for transfer. Neither Ms. Johnson nor Sean testified at hearing. Respondent testified that she never met Ms. Johnson and never set foot on any of FCNH’s campuses. While it was assumed at hearing that Sean conspired with Ms. Johnson to create false documents in order for Respondent to obtain a Florida license, there was no competent evidence from which such a finding can be made. There is no evidence from which it can be determined whether Sean was complicit in fraud or being duped by Ms. Johnson. The only finding that can be made based on the evidence presented is that someone submitted, on Respondent’s behalf, documents that indicate that sufficient credits were transferred from Healing Hands to FCNH, a board-approved school; completion of all required courses; successful completion of the national examination; and that those documents on their face were sufficient to demonstrate Respondent met the requirements for licensure. Melissa Wade is a managerial employee of FCNH. At some point after Respondent received her license, Ms. Wade received a telephone call from someone from the National Certification Board for Therapeutic Massage and Bodywork (NCB) to report that NCB had received several applications to sit for the national certification examination from purported FCNH graduates whose transcripts seemed irregular. Respondent was not among those individuals identified as having suspicious credentials, as she had taken the examination prior to any purported contact with FCNH. Ms. Wade reviewed the credentials for those applicants identified by NCB, and found several things in the documents that she considered to be suspicious. While these irregularities may have been red flags for Ms. Wade and those who routinely review transcripts, it is not clear that these irregularities would be apparent to a casual observer. However, the students for whom the transcripts and Transfer Forms were prepared were not found in FCNH’s records as actually being students of the school. Ms. Wade confronted Ms. Johnson regarding the irregular transcripts and certificates. Ms. Johnson was terminated by FCNH in December 2011. Ms. Wade notified the Board of Massage that some people who had applied for licensure as graduates of FCNH might not have met the requirements for graduation. The Department initiated an investigation, with which FCNH cooperated. This investigation uncovered approximately 200 graduates, including Respondent, whose credentials FCNH could not confirm. Although Ms. Wade reviewed Respondent’s documents that comprise Respondent’s application for licensure and testified that Ms. Johnson did not have the authority to evaluate the hours from Healing Hands for transfer to FCNH, she did not testify that the courses which were purportedly accepted for transfer would in fact be unacceptable. Anthony Jusevitch, Executive Director for the Board of Massage Therapy, testified that typically it is the school, as opposed to the applicant, that submits transcripts and certificates regarding completion of curriculum requirements. There was no credible, competent evidence to indicate exactly who decided to create the documents submitted to the Board of Massage on Respondent’s behalf, or that Respondent knew of or authorized their creation. What is clear, however, is that Respondent did not know of their creation or their submission to the Board office. Once Respondent was notified of the alleged deficiency in her credentials for her Florida license, she took two home- study courses through Life Education of Florida on the subjects of Medical Errors and HIV/AIDS, for two and three hours, respectively. She also took a Florida Laws and Rules course for 10 hours through Advanced Massage Techniques’ online program. The use of continuing education courses is valid for obtaining initial licensure. Respondent currently meets all of the requirements for licensure in the State of Florida. She continues to live in New Jersey. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, at the time her licensure application was processed by the Board staff, Respondent did not meet the requirements for licensure because she had not taken the required prevention of medical errors and Florida Laws and Rules courses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 9th day of September, 2013, 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 9th day of September, 2013.
The Issue Should discipline be imposed by the Department of Health, Board of Massage Therapy (the Petitioner), against Stanley Carroll's (the Respondent) license as a massage therapist for alleged violations of Sections 480.046(1)(o) and 480.0485, Florida Statutes?
Findings Of Fact Facts Established by the Answer This is an action to impose administrative penalties and assess costs related to the investigation and prosecution of the allegations against Respondent pursuant to Sections 456.072, 480.046(1)(o) and 480.0485, Florida Statutes. This tribunal has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2003). Venue shall be determined pursuant to Florida Administrative Code Rule 28-106.207. Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to Section 20.43, Florida Statutes, and Chapter 480, Florida Statutes. At all times material hereto, Respondent has been licensed as a massage therapist, having been issued license number MA 20209 on September 12, 1995. Respondent's last known address is 5135 San Juan Avenue, Jacksonville, Florida 32210-3137. O.C. was a patient of Respondent during the year 2000. Facts Established by Responses to Request for Admissions Respondent Stanley Carroll possesses Florida massage therapist license number MA 20209. Respondent was issued Florida massage therapist license number MA 20209 on September 12, 1995. Respondent practices massage therapy at the "Hands that Care," 5135 San Juan Avenue, Jacksonville, Florida 32210. Respondent began providing massage therapy to O.C. in late July 2000 or early August 2000. O.C. was referred to Respondent by K.C. O.C. saw Respondent approximately ten times during the year 2000. During massage therapy sessions with Respondent, O.C. would be covered by only a sheet. Respondent would move the sheet that covered O.C. during massage therapy sessions so that Respondent would not be completely covered during massage therapy sessions. When Respondent would massage O.C.'s pectoral muscles, Respondent would fold the sheet covering O.C. down to expose her breasts. During some massage therapy sessions, Respondent would massage O.C.'s left hip and left upper thigh in an attempt to return feeling to those areas that was lost due to the removal of a lymph node when O.C. was a child. When Respondent would massage O.C.'s left hip and left upper thigh, Respondent would move the sheet covering O.C. and expose O.C.'s pubic area. When Respondent would massage O.C.'s left hip and left upper thigh, Respondent would place one of his hands next to her pubic area. Respondent called O.C. and invited her to his massage establishment for a $30.00 massage, which is half of Respondent's normal fee (at that time). After O.C. was dressed, Respondent walked O.C. to her car (in her last visit to Respondent). Respondent told a Department of Health investigator that he did touch "delicate areas" on O.C.'s body. On May 24, 1999, the Florida Department of Health filed an Amended Administrative Complaint against Respondent in discipline case number 98-12083 and his massage therapist license, alleging that Respondent violated Subsection 480.046(1)(c) of the Florida Statutes by being convicted of battery on patient M.J. for inappropriately touching M.J.'s breasts and nipples. Respondent disputed the material facts as alleged in Amended Administrative Complaint 98-12083. In DOAH case number 99-3719, Administrative Law Judge, (ALJ) Suzanne F. Hood found that Respondent violated Subsection 480.046(1)(c) of the Florida Statutes by being convicted of misdemeanor battery for intentionally touching M.J. against her will and that this battery would have not have occurred, but for Respondent and M.J.'s massage therapy session. The Board of Massage Therapy rendered a Final Order in disciplinary case number 98-12083 in which it adopted the findings of fact and conclusions of law of Administrative Law Judge Suzanne F. Hood in DOAH case number 99-3719. The Board of Massage Therapy's Final Order in disciplinary case 98-12083 imposed an administrative fine in the amount of $500.00 and investigative costs in the amount of $1,452.05. Additional Facts O.C. was first seen by Respondent on August 1, 2000. At that time, a questionnaire was completed by O.C., Respondent's Exhibit numbered two. O.C. indicated in her response to the questionnaire that this was the first experience O.C. had with massage therapy. By report, in the questionnaire, the medical history referred to PMS/painful menstruation. Other than the questionnaire which was filled out on the initial visit, no other documentation was established concerning the therapy. That questionnaire, in addition to commenting on the medical history by report, described the fact that O.C. rarely exercised and spent a lot of time in her day standing while at work. Respondent's Exhibit numbered two, the questionnaire, has a statement at its end where it says "I have had the massage treatment and protocol explained to me. I understand that areas will be massaged. With this information I give my permission for a massage, I know I may stop the massage at any time for whatever reason. (pain, discomfort or just being uncomfortable with the massage.)" What O.C. hoped to gain from the massage therapy was relaxation, given the stress levels she experienced at the time. All the massage therapy which Respondent provided was at his location referred to as "Hands That Care," 5135 San Juan Avenue, Jacksonville, Florida. There were 10 sessions involved with the therapy, which commenced around 7:30 p.m. on each occasion. At these visits, Respondent and O.C. would be alone in the room where the therapy was provided. At the therapy sessions, O.C. would be completely undressed with a drape over her when she was on the massage table receiving therapy. That drape was a sheet with which she covered herself. She tried to ensure that the private or sensitive areas of her body were covered with the sheet. The sheet was sufficient to cover her exposed body. Nonetheless, the client felt a draft at times around her genital area, and her breasts were exposed during certain forms of massage. This was referred to as frontal massage. That massage involved the pectoral area of her body. O.C. did not feel that there was a problem with her pectoral area being massaged. When O.C. first went for a massage, she and Respondent discussed clothing options for the course of the massage. Respondent told her that there were different options, among them that she could completely disrobe and there would not be any restriction, taken to mean any restriction in the performance of the massage. He told her that she could wear her panties if that made her feel comfortable. She chose to completely disrobe. On an estimated two or three times, O.C. describes that Respondent's ". . . hand might have swept across my nipple, but (she) tried to disregard it and hoped that it was an accident." When O.C. described the "swipe" across her nipple, she meant the actual touching of the nipple. She was not persuaded that the touching was intentional. She hoped that it was not and, at the time, did not believe that it was. O.C. had not consented to any type of lymphatic drainage breast massage or any type of breast massage from Respondent. Her request was for "relaxation massage." On the last visit with Respondent, which took place sometime in 2001, presumably the earlier part of that year, O.C. experienced a problem with Respondent in which he engaged in inappropriate conduct. On that occasion when O.C. entered the room, the room was dimly lit, as it had been on her other visits, and music was provided. The massage session began with a frontal massage, with O.C. on her back draped. The massage period took approximately two hours. O.C. was relaxed with her eyes closed. In the last massage period, one of the areas being addressed was the scar tissue on the inside of O.C.'s upper left thigh. This area is roughly portrayed on the drawing which was admitted as Respondent's Exhibit numbered three. That scar was the result of surgery, in which nerve damage was suffered by O.C. Respondent was trying to break down the tissue associated with the scar to bring about some correction in the condition. Respondent explained to O.C. that massage therapy can help nerve damage. During the last visit when Respondent was working on the scar that was left when the lymph node was removed, the massage did not feel pleasant, in that some sensation in the area was still being experienced by O.C., notwithstanding related areas of numbness. At some point while Respondent was working on the scar tissue, the draping was not covering the area to include her genitalia. At this juncture, Respondent put his hand on O.C.'s genitalia, the clitoris, and began rubbing the clitoris for a period of a minute or less. The touching involved the clitoris itself and the area around it. After that Respondent pulled O.C. up from the table. The sheet was not covering her at the time and as Respondent was pulling O.C. up his hand was still in the clitoris area. O.C. was shocked by Respondent's conduct and did not know how to handle the situation. She had not given Respondent permission to touch, rub, or massage the genital area, to include her clitoris. O.C. never experienced pain in her genital area and never asked Respondent to touch the clitoris or the area around the clitoris or to massage in those places. O.C. had never requested fertility massage or an approach known as the Wurn technique. After helping O.C. up from the table, Respondent asked O.C. to get dressed and to meet him outside. When Respondent left the room, O.C. left the table and went to the dressing room and dressed herself. She met Respondent outside the office area of the building. At this time Respondent asked O.C. if he had ever touched her inappropriately. O.C. simply shook her head in acknowledgement of his comment. She was embarrassed. Respondent also made a comment to the effect that younger people are more susceptible to certain touches than older persons. Respondent encouraged O.C. to come back for more massage therapy and assured her that he would work with her schedule and that if money to pay for the therapy was an issue, then he would work with her on that subject as well. She shook her head as if to agree. She left and never came back. The experience which O.C. had with Respondent on her last visit left her very embarrassed beyond the event. She had not had massage therapy before her experience with Respondent and did not know what to expect, but realized that his placing his hands on her clitoris or the area around the clitoris was not appropriate. The Respondent describes the massage performed on O.C. as a full body massage. This involves the neck, back, legs, feet, hands and head. The therapy is a mix between deep tissue and what Respondent considers Swedish Massage. Ordinarily, the patient is uncovered in the specific areas that are being worked on. Respondent asks permission before performing massage in the delicate areas such as around the breast. It is assumed that is what transpired with patient O.C. Respondent's involvement with O.C. in massaging an area related to her breast was addressing her pectoral muscles. Respondent did not deny the possibility that he touched O.C.'s nipple. He explained, "I don't recall swooping across the breast. If I touched any, it would have been when your pushing breast up and the breast tissue slipping and I would move my hand down to adjust for that. . ." Respondent stated that he had no intention to touch the nipple. Upon the facts presented it is not found that Respondent intended to touch her nipple, unlike the experience with the clitoris and clitoral area. Respondent acknowledges that the drape covering O.C. when he helped her to sit up on the massage table fell down to her waist when he last saw her. Respondent acknowledges that the deliberate touching of the nipples or the area of the clitoris or vaginal area is inappropriate conduct for a massage therapist. EXPERT OPINION TESTIMONY Jennifer Mason has been licensed in Florida as a massage therapist for 10 years. No discipline has ever been imposed against her license. She is an anatomy instructor at the CORE Institute of Massage Therapy in Tallahassee, Florida, where she instructs in musculoskelatal anatomy. Ms. Mason has instructed hundreds of students at Core Institute, and she has given hundreds of massages as a licensed therapist. She is expert in the field of massage therapy and was received as an expert for offering opinions concerning the practice of massage therapy. Ms. Mason practices a form of massage therapy that is similar in technique to that employed by Respondent in this case. From what Ms. Mason explained, the size and manner of draping employed by Respondent in the O.C. case and the amount of clothing worn by the patient are not at odds when taking into account what Ms. Mason believes is appropriate. Ms. Mason established that the massage therapist would never engage in the touching, rubbing, or massaging of a female patient's nipples. She does not believe that touching the nipples would be appropriate even if its accidental. Under the facts in this case, her belief that accidental touching would be inappropriate is not accepted. Ms. Mason established that it is inappropriate for a massage therapist to rub or touch a female patient's genital area, including the clitoris. Kenneth C. Oram has been licensed as a massage therapist in Florida and is an expert in the field of neuromuscular massage therapy. He has no disciplinary history in Florida in his field. He believes that a therapist could inadvertently touch the patient's nipple. He does not ascribe fault to that form of touching. His opinion in that sense is accepted given the facts in this case. Mr. Oram agrees with Ms. Mason that intentional touching of the nipples and genital area, to include the clitoris, is sexual misconduct. Those opinions are accepted. His opinion is that touching the genital area when assisting a patient from the massage table, such as was the case with O.C. is inappropriate. That opinion is accepted. Prior Disciplinary Action In Department of Health, Petitioner v. Stanley Michael Carroll, Respondent, before the State of Florida Board of Massage Therapy, Case No. 98-1208A3, Respondent was required to pay an administrative fine of $500.00 for violating Subsection 480.047(1)(c), Florida Statutes, as more particularly described in the Answers to Request for Admissions reported in these facts.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding Respondent in violation of Section 480.0485, Florida Statutes (2000), and revoking his massage therapist license. DONE AND ENTERED this 20th day of May, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 20th day of May, 2004.
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 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.
