The Issue Whether the Respondent, a licensed massage therapist, should be disciplined under section 480.046(1)(p), Florida Statutes (2016),1/ for sexual misconduct in the practice of massage therapy; and, if so, the appropriate discipline.
Findings Of Fact The Petitioner licenses and regulates the practice of massage therapy in Florida, including discipline of licensees who are in violation of the governing statutes and rules. The Respondent holds massage therapy license MA 80154. In March 2017, the Respondent was employed as a massage therapist at Hand and Stone Massage and Facial Spa in Brandon, Florida. On March 29, 2017, Y.B., went to Hand and Stone to use a gift card for a free massage that had been given to him by his fiancée. The Respondent approached and introduced himself to Y.B., and asked if he could help him. Y.B. told him why he was there, and the Respondent led him back to a therapy room. In the therapy room, Y.B. asked the Respondent to focus on his upper body, arms, and fingers. The Respondent had him undress and lay down on the massage table face down, covered only by a sheet. The massage proceeded without incident at first. Then, the Respondent asked for permission to massage Y.B.’s legs. Y.B. granted permission. As the massage proceeded, Y.B. closed his eyes and relaxed. When the Respondent finished massaging the back of Y.B.’s legs, he asked Y.B. to roll over onto his back. As the massage proceeded, Y.B. again closed his eyes and relaxed. After massaging Y.B.’s upper body, arms, and fingers, the Respondent asked, “May I?” Thinking the Respondent was asking if he had permission to massage the front of his legs, Y.B. said, “yes, do what you have to do.” Before Y.B. knew what was happening, the Respondent grasped Y.B.’s penis in his hand and put it in his mouth. Startled and shocked, Y.B. opened his eyes, sat up, and made the Respondent stop, saying “Whoa, whoa, whoa, what do you think you’re doing? I’m not gay.” At that point, the Respondent stopped and brought Y.B. water and a towel. What the Respondent did was very upsetting to Y.B. He was so upset and angry that he was distracted while being checked out by another employee of Hand and Stone. He unwittingly presented his gift card and answered questions. He discovered later that he not only had paid for the massage but also had given the Respondent a tip. Y.B. continued to be bothered by what happened and returned to Hand and Stone the next day to confront the Respondent and have him explain the reason for what he had done the day before. During this confrontation, the Respondent admitted to his misconduct and tried to apologize, saying “I thought we had a connection.” Y.B. continues to be affected by what the Respondent did to him. He received counseling through his employer. He still is less affectionate than he used to be, even towards his family. To this day, he still becomes anxious when reminded of the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding the Respondent guilty as charged; revoking his license; and fining him $2,500. DONE AND ENTERED this 23rd day of January, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2018.
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of massage (Chapters 20.30, 455, and 480, Florida Statutes). The Respondent is a licensed massage therapist, holding license number MA 0004771 (P's Exh. 2). The Respondent holds a massage establishment license for Massage by Olga, license number MM001233 (P's Exh. 1). Massage by Olga is located at 643 Tanglewood, Daytona Beach, Florida 32114. No other businesses are located at that address (T-31). The Petitioner is charged with inspecting the establishment premises. Section 480.043(9), Florida Statutes, and Rule 21L-26.005, Florida Administrative Code. It is the usual and common practice of inspectors to make unannounced inspections (T-10-11). To make announced inspections would contravene the reason for the inspection, giving licensees time to clean up their licensed premises (T-11, 28). The Petitioner's inspector, Linda Mantovani, who works out of Jacksonville, Florida, attempted to make an inspection of the establishment, Massage by Olga, on January 30, 1991 (T-13). She knocked on the front door and waited seven (7) minutes. No one came to the door. Ms. Mantovani observed two cars in the driveway of the establishment (T-14). Ms. Mantovani heard noise coming from inside the establishment (T-14- 15). Ms. Mantovani went around to the side entrances and windows, and again knocked on the front door (T-15-16). Ms. Mantovani's knocks were unanswered (T-15). Ms. Mantovani waited outside the establishment for another 15 to 20 minutes to see if anyone left. She observed no one leaving or entering the establishment (T-16). Ms. Mantovani observed a sign on the front door of the establishment which said: Appointments & Information by telephone-only No appointments, No knock!!!! Do not ring bell unless on time (+ or - 5 min.) Phone number....lost it, find it! Inspectors see rule #2. No exceptions (T-14, 23-24; P's Exh. 4). Ms. Mantovani formed the impression that people were inside the establishment (T-15, 18) The Respondent told Ms. Mantovani that although she parked her car at the licensed premises, she frequently walked to lunch in the neighborhood. Ms. Mantovani contacted the Respondent by telephone without difficulty. The Respondent told Ms. Mantovani that she did not live at the licensed premises; that she was there only for appointments; and she would make herself available for Ms. Mantovani for inspection purposes. Ms. Mantovani advised the Respondent that the Petitioner made unscheduled inspections. The Respondent told Ms. Mantovani that she could not promise that she would be at the licensed premises when Ms. Mantovani was in Daytona. The Respondent also stated that it was her practice not to answer the door, except to receive scheduled patrons. Ms. Mantovani refused to schedule an inspection, or to call and ascertain that the Respondent was available and inspect at that moment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the charges be dismissed. DONE AND ENTERED this 21st day of February, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-6559 Petitioner's Proposed Findings of Fact 1-15. Adopted. 16-17. Rejected as contrary to more credible portion of Ms. Mantovani's testimony. 18. Adopted and moved to Paragraph 3. COPIES FURNISHED: Anna Polk, Executive Director Board of Massage Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Lois B. Lepp, Esq. Department of Professional Regulation Northwood Centre, Suite 60 1940 N. Monroe Street Tallahassee, FL 32399-0792 Rita Brigugulio 643 Tanglewood Daytona Beach, FL 32114
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 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 The issues in this case are whether Respondent violated Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1) and (3), Florida Administrative Code, by engaging in sexual misconduct with a massage client, and thereby violated Section 480.046(1(k), Florida Statutes; and, if yes, what penalty should be imposed on his license to practice massage therapy.
Findings Of Fact Petitioner, the Department of Health, Board of Massage Therapy (Department), is the state agency responsible for regulating the practice of massage therapy in the State of Florida pursuant to Chapter 480, Florida Statutes. Respondent, Miodrag Visacki (Respondent), was at all times material hereto, a licensed massage therapist in the State of Florida, having been issued license number MA23741. A. R. is a female who resides in Rhode Island. At the times material to this proceeding, A. R. was 18 years old and was on vacation with members of her family in Florida. During this vacation, A. R. and her family were staying in a condominium unit at the Long Boat Key Resort in Longboat Key, Florida. While on vacation in Longboat Key, Florida, A. R. and her aunt decided to obtain massages. They looked at advertisements for massage therapy in the newspaper, and then called telephone numbers listed in several different advertisements. After calling several of the telephone numbers, A. R. and her aunt decided to order massage services from one of the advertisements. On April 21, 2000, A. R.'s aunt called the number listed in one of the advertisements to set up appointments for April 22, 2000. On April 22, 2000, Respondent went to the condominium unit in which A. R. and her aunt and parents were staying to perform the massages. When Respondent arrived there, he identified himself as Michael. Prior to beginning the massages, Respondent requested that A. R. and her aunt fill out client intake forms that elicited information about the purpose or the reason for the massage, the "areas requiring specific attention," and the "areas preferred not to be worked on." On the client intake form, A. R. indicated that she wanted a relaxation massage. With regard to areas requiring special attention, A. R. noted, "legs, neck, and back." A. R. indicated that the areas she preferred not to be worked on were her face and head. Respondent set his table up in the living room of the condominium unit and began the massage of A. R. When Respondent began the massage, A. R.'s aunt was in the kitchen, which was adjacent to the living room. Soon after Respondent began with the massage of A. R., her aunt left the kitchen and went to a bedroom in the condominium unit. At the beginning of her massage, A. R. was wearing a bra and her underwear, was lying on her back, and was covered by a sheet. Approximately 15 minutes after the massage began and after A. R.'s aunt left the kitchen and went to one of the bedrooms, Respondent pulled down A. R.'s bra and proceeded to massage her breasts and nipples. Respondent then asked A. R. if she enjoyed his massaging her breast and nipples to which she responded "no." After A. R. told Respondent that she did not want him to massage her breasts and nipples, he began massaging her ankles, working his way up her legs, vagina, and stomach. Respondent removed A. R.'s underwear during the massage although he never asked for her permission to do so and she never consented to his doing so. In an attempt to stop Respondent from massaging her vagina, A. R. turned over on her stomach. While A. R. was laying on her stomach, Respondent penetrated A. R.'s vagina and anus with his finger while alternately massaging her back, shoulders, and buttocks. During A. R.'s massage, two sheets were used to cover her. Throughout the massage, A. R. was covered from the waist up by one of the sheets. However, Respondent continually moved or adjusted the sheet that was to cover A. R. from the waist down so that it was "half on, half off." At no time prior to or during the massage did A. R. give her consent to Respondent to remove the sheet draping her body so as to expose her buttocks and genitalia. When Respondent finished the massage of A. R., she spoke to her aunt briefly and indicated that something was wrong, but she did not reveal the full details of what had occurred during the massage. Respondent then proceeded to massage A. R.'s aunt. While her aunt was receiving her massage, A. R. went to the bathroom, washed up, changed, and waited for Respondent to finish her aunt's massage. A. R. was in "total confusion" and after Respondent completed her aunt's massage, A. R. urged her to pay Respondent so he could leave the condominium. After Respondent left the condominium, A. R. divulged to her aunt some, but not all, of the details of what had occurred during the massage. A. R. and her aunt then left the condominium and went to the nearby beach area where A. R.'s parents were and informed them about what had occurred during the massage. A. R.'s mother immediately called the Longboat Key Police Department and police officers were dispatched to the condominium that day. When Officer Heidi Blake Micale arrived at the condominium, A. R. confided in and reported to her the conduct engaged in by Respondent during the massage. As part of its investigation of the April 22, 2000, incident, the Longboat Key Police Department contacted Respondent and scheduled an interview with him. On April 24, 2000, Lieutenant Detective Christina Roberts interviewed Respondent regarding the incident. During the interview, Respondent admitted to massaging A. R.'s breasts, including the nipple area. As justification, in explaining his actions, Respondent indicated that he massaged A. R.'s breasts because they were not listed on the intake form as one of the "areas preferred not to be worked on." As evidence of this, Respondent provided Lieutenant Detective Roberts with a copy of the intake form that A. R. had completed prior to the massage. Prior to her encounter with Respondent, and while in Rhode Island, A. R. had received numerous massages for sports related injuries and she continues to receive such massages. However, A. R. has never encountered sexual conduct by any massage therapist other than Respondent. Respondent's actions with regard to massaging A. R.'s breasts and/or nipples may or were likely to cause erotic arousal. Furthermore, this conduct by Respondent constitutes sexual activity and is outside the scope of the practice of massage. Respondent's actions of penetrating A. R.'s vagina and anus may or were likely to cause erotic arousal. This conduct by Respondent constitutes sexual activity and is outside the scope of the practice of massage.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy enter a Final Order finding Respondent guilty of violating Subsection 480.046(1)(k), Florida Statutes, Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1) and (3), Florida Administrative Code; imposing a $1000.00 fine against Respondent; and revoking Respondent's license to practice massage therapy. DONE AND ENTERED this 18th day of September, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 18th day of September, 2001. COPIES FURNISHED: Miodrag Visacki 454 North Jefferson Avenue Sarasota, Florida 34237 Gary L. Asbell, Esquire Lori C. Desnick, Esquire Agency for Health Care Administration 2727 Mahan Drive Ft. Knox Building 3, Mail Station 39 Tallahassee, Florida 32308 William H. Buckhalt, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way Bin C06 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times material to the allegations of this case, the Respondent has been licensed as a massage therapist in the State of Florida, license no. MA 0007093. The Department is the state agency charged with the responsibility under Florida law of regulating massage therapists. At all times material to the allegations of this case, the Department required that licensees obtain continuing education credits in order to renew massage therapy licenses. The license renewal card sent by the agency to the licensee requires verification that the licensee has met all continuing education requirements. Respondent executed a renewal notice form that represented she had met all requirements for license renewal, including the continuing education commitment. On November 5, 1993, the Department issued a letter to Respondent advising her that her license had been randomly selected for audit for the continuing education requirements for the period January 1, 1991 through January 31, 1993. By such notice, Respondent was requested to complete an audit form and to attach proof of attendance for the continuing education courses attended for the audit period. In order to qualify for acceptance, continuing education courses must be approved by the Department. Courses which have not received approval may not be counted to fulfill continuing education requirements. The Respondent filed a response to the audit including courses which had not been approved by the agency. In follow-up, the Department, by form notice dated December 7, 1993, advised the Respondent that her audit was incomplete. More specifically, the Department advised Respondent that the provider of the continuing education (CE) identified by Respondent was not an approved provider and that the number of courses of approved CE did not show attendance of at least twelve hours. To date, the Respondent has not provided proof of compliance with the CE requirements of the Department. Courses which Respondent attended in connection with another license held by Respondent (nurse), do not comply with the criteria for her license as a massage therapist. Respondent is aware of the different Boards and regulations pertaining to the licenses she holds.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business and Professional Regulation, Board of Massage, enter a final order revoking Respondent's license as a massage therapist and imposing an administrative fine in the amount of $1,000.00. DONE AND RECOMMENDED this 29th day of August, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 29th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0148 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 14 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Susan Lindgard Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Diana Wentworth 1500 Pelican Lane Vero Beach, Florida 32963-2644 Anna Polk Executive Director Board of Massage Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
