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 issue in this case is whether the Department of Health, Board of Massage Therapy, should discipline the Respondent, Meihua Qiu, based on the manner in which she applied for and obtained her license.
Findings Of Fact The Respondent, who was born in China, came to the United States in 2001. She enrolled in Royal Irvin College in California to study massage therapy. She completed a 500-hour course of study and graduated in September 2007. The course of study included classes on HIV/AIDS and prevention of medical errors. In November 2007, she sat for and passed the examination administered by the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB). The Respondent moved to Florida because she had family and friends there. One of her friends knew someone who had gone to the Florida College of Natural Health (FCNH), which is approved by the Board of Massage Therapy (Board). In December 2007, the Respondent went to FCNH’s Pompano campus to determine what was necessary for the Respondent to be licensed in Florida as a massage therapist. When the Respondent arrived at FCNH's Pompano campus on December 21, 2007, the receptionist directed her to see Glenda Johnson, who was the school's student coordinator and functioned as the registrar. The Respondent showed Johnson a copy of her Royal Irvin College diploma and transcript and her NCBTMB certificate, which Johnson reviewed. The diploma and transcript were not official, but the Department does not dispute that they are true and correct. It was not FCNH's normal practice at the time for Johnson to review transcripts to determine how much credit to accept from another school. This was normally done by the school's education department. However, Johnson was acting as the school’s registrar and appeared to have the authority to make the determination; and it was reasonable for the Respondent to believe that Johnson was authorized to do so. Johnson then had the Respondent fill out and sign an application for licensure in Florida by examination based on her 500-hour course of study at, and diploma from, Royal Irvin College and her NCBTMB certificate. Everything in the application filled out and signed by the Respondent was true and correct at that time. Johnson also had the Respondent fill out and sign an FCNH enrollment agreement. Johnson signed the agreement, acting as school registrar, to enroll the Respondent at FCNH. The enrollment agreement included a statement that FCNH would evaluate collegiate and post-secondary training, military experience, or civilian occupations, and that the Respondent would be given appropriate credit, if criteria to measure the value of such training and experience were met, as determined by FCNH. Johnson then gave the Respondent a copy of the April 2003 edition of the statutes and rules governing the practice of massage therapy in Florida and materials for FCNH’s course in Prevention of Medical Errors and brought her to a classroom. There was an instructor in the classroom who explained the materials to the Respondent and answered her questions as she read and studied the materials for about three to four hours. There were other students and staff in the classroom with the Respondent but they were not studying the same materials as the Respondent and the instructor was directing his explanations and answers to questions to the Respondent, not the other students. The Respondent was not tested or graded on what she studied. When the Respondent finished studying the materials, Johnson told her that she had completed the course requirements. The Respondent did not have any reason to doubt Johnson, who was acting as the school’s registrar. Cf. § 1005.04(1)(a) & (d), Fla. Stat. (2012)(a nonpublic, secondary institution accredited by the Commission for Independent Education must disclose to prospective students the transferability of credit to and from other institutions and accurate information regarding the relationship of its programs to state licensure requirements). Actually, even if credit for all other educational requirements for Florida licensure by examination were transferred from the Royal Irvin College, the Respondent was required to complete a ten-hour class in Florida statutes and rules. Fla. Admin. Code R. 64B7-32.003 (Apr. 25, 2007). (Notwithstanding some testimony to the contrary, other mandatory courses of study are not required by rule to be Florida- specific.) Id. Like all other educational requirements for licensure by examination, this class had to be taken in-person, with a faculty member present. Fla. Admin. Code R. 64B7-32.001 (Mar. 25, 1986). Johnson had the Respondent pay $520 for FCNH's tuition and the Board's $205 license application fee. Johnson said she would file the application for the Respondent. The Respondent did not speak to Johnson again or return to FCNH’s Pompano campus after December 21, 2007. At some point in time on or after December 21, 2007, Johnson completed section III of the Florida license application, which is a transfer of credit form, and the Respondent's FCNH transcript. The transfer of credit form indicated that FCNH was accepting: 150 credit hours from Royal Irvin College in the category Anatomy and Physiology (for a course titled Musculoskeletal); 225 credit hours in the category Basic Massage Therapy and Clinical Practicum (for a course titled Neuromuscular Massage); 15 credit hours in the category Theory and Practice of Hydrotherapy (without specifying the course taken); 95 credit hours in the category Allied Modalities (for a course titled Sports Massage); and 3 hours in the category HIV/AIDS (for a course titled HIV/AIDS). The form indicated that to qualify for examination the Respondent needed to take ten hours in the category Statutes/Rules and History of Massage and two hours in the category Allied Modalities (for medical errors prevention) at FCNH. Finally, the form showed the total credit hours for all schools: 150 credit hours in the category Anatomy and Physiology; 225 credit hours in the category Basic Massage Therapy and Clinical Practicum; ten credit hours in the category Statutes/Rules and History of Massage; 15 credit hours in the category Theory and Practice of Hydrotherapy; 97 credit hours in the category Allied Modalities; and 3 credit hours in the category HIV/AIDS. At some point in time on or after December 21, 2007, Johnson also completed a FCNH transcript for the Respondent indicating that the Respondent completed all the credit hours on the credit transfer form (a total of 500 credit hours, including 12 hours having been taken at FCNH), and assigning credits for those credit hours (a total of 25.84 credits, including 0.8 credit earned at FCNH). At some point in time on or after December 21, 2007, Johnson also completed FCNH certificates of completion for the Respondent indicating that the Respondent took and successfully completed FCNH's two-hour class titled Prevention of Medical Errors and 12 hours of FCNH's Therapeutic Massage Training Program (Transfer of License). Johnson sent the Respondent's license application (with $205 fee), Royal Irvin College diploma and transcript, and NCBTMB certificate, together with the documents Johnson completed on or after December 21, 2007. She did not provide copies to the Respondent. The Board received the submission on December 27, 2007. On December 28, 2007, the Board sent the Respondent a copy of her application, without the supporting documentation, and a letter saying the application was incomplete because her driver license number was omitted. The Respondent added the driver license number and re-submitted the application on January 7, 2008. On January 9, 2008, the Board issued the Respondent massage therapy license MA 52312. The Respondent paid Johnson by check. There was no evidence as to what happened to the balance of the money paid to Johnson. No canceled check was produced, and the evidence is not clear if the check was made payable to FCNH or to Johnson. Either way, subsequent events suggest Johnson probably pocketed the difference between the $520 paid and the $205 license application fee. The Respondent's license application included both the representation that the answers and statements in or in support of her application were true and correct and the acknowledgement that any false information on or in support of the application was cause for denial, suspension, or revocation of her license. Although true and correct when the Respondent filled it out and signed it, the Respondent's application was not true and correct as submitted to the Board on her behalf, with the false supporting documentation prepared by Johnson. In December 2011, it came to the attention of Melissa Wade, FCNH's vice-president for Compliance and Institutional Effectiveness, that a number of people were claiming to have graduated from FCNH's Pompano campus based on documentation indicating that they did not complete FCNH's 768-hour course of study that was approved by the Board. Wade investigated and was unable to find any record of the individuals having been students at FCNH. Wade investigated further and discovered discrepancies in the documentation being submitted by those individuals. Wade investigated further and discovered that Johnson never registered these individuals as enrolled students. Johnson was terminated from her employment as registrar for the school. Beginning in January or February 2012, Wade began notifying the Board about the individuals purporting to be FCNH graduates, but who never actually were registered as enrolled students and did not complete the school's Board-approved course of study. As more such individuals were identified, the Board was notified. The Respondent was one of the individuals reported to the Board. At some point in time, the Respondent became aware of the Department’s concerns about the manner in which she obtained her Florida massage therapist license. In October 2012, in an attempt to resolve the Department's issues regarding her license, the Respondent took and successfully completed a Board-approved continuing education (CE) course consisting of six hours of Ethics and Standards, two hours of Preventing Medical Errors, two hours of Laws and Rules Massage Practice, two hours of Pathology of Chronic Conditions for Massage Therapists, and Living with HIV/AIDS. In October 2012, the Department filed emergency suspension orders and administrative complaints against a number of licensees who submitted suspect FCNH documentation with their applications, including the Respondent. Between her licensure and the emergency suspension order, the Respondent practiced massage therapy in Florida. During that time, there were no complaints of any kind against the Respondent either by the Department or any consumer. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, even assuming that Johnson had at least apparent authority to transfer credit hours from Royal Irvin College and assign FCNH credit, it is clear that the application submitted on the Respondent's behalf by Johnson was supported by documentation that falsely represented that the Respondent took 12 hours of classes at FCNH, including a ten-hour class on Florida statutes and rules and a two-hour class in Prevention of Medical Errors. At the same time, those false misrepresentations were made by FCNH, through its registrar, not by the Respondent.
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 against the Respondent. DONE AND ENTERED this 17th day of June, 2013, 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 17th day of June, 2013. COPIES FURNISHED: Candace Rochester, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Maggie M. Schultz, Esquire Rutledge, Ecenia and Purnell, P.A. 119 South Monroe Street, Suite 202 Post Office Box 551 Tallahassee, Florida 32302 Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health Bin C06 4052 Bald Cypress Way Tallahassee, Florida 32399-3256 Jennifer A. Tschetter, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issues for determination in these consolidated cases are whether Petitioner's applications for approval as a continuing education provider should be approved.
Findings Of Fact Petitioner, Carol Rangle Gilmore, is a licensed massage therapist in the State of Florida. Petitioner also holds a certificate to practice massage therapy which was issued by the city of San Diego, California. On February 12, 1991, Petitioner received a certificate from the Mueller College of Holistic Studies in San Diego, California, stating that Petitioner had completed the prescribed course of training in anatomy, physiology, and human relations, and passed a creditable examination in the art of massage. Petitioner completed 9 credit hours in anatomy, 9 credit hours in physiology, 9 credit hours in history, theory and ethics, and 75 credit hours in practice and demonstration, for a total of 100 credit hours of instruction at Mueller College of Holistic Studies. The certificate of completion issued to Petitioner by Mueller College of Holistic Studies was as a Massage Technician. Mueller College of Holistic Studies was not at the time of the issuance of Petitioner's certificate of completion in 1991, nor is Mueller College of Holistic Studies now, a Board- approved massage school for purposes of licensure in Florida under Rule 64B7-32.003, Florida Administrative Code. On September 16, 1992, Petitioner received a certificate of completion of a course of 1000 hours of holistic studies from the Desert Resorts School of Soma Therapy (Desert Resorts) in Desert Hot Springs, California. Petitioner's certificate of completion from Desert Resorts states that the course of study consisted of a 100-hour massage technician certificate course (which was credited from Mueller College), and 900 hours of "postgraduate work" in anatomy, physiology, acupressure, nutrition, business ethics, history, theory, and practice of both Eastern and Western forms of massage, specializing in specific forms used in various types of bodywork. Petitioner's transcript from Desert Resorts reflects the 100 hours of credit for her massage technician course from Mueller College, and 48 credit hours in each of the following subjects: Acupressure I; Acupressure II; Advanced Massage I (Aromomatherapy, Manual Lymph Drainage); Advanced Massage Therapy II (Sports Massage); Anatomy & Physiology; Kinesiology; Communication Skills & Ethics; Body/Mind Integration; and Health and Nutrition. Additionally, Petitioner's transcript from Desert Resorts reflects 468 credit hours in Assessment & Remediation. Petitioner's certificate from Desert Resorts designated her a holistic health practitioner. Desert Resorts School of Soma Therapy was not at the time of the issuance of Petitioner's certificate of completion in 1992, nor is Desert Resorts now, a Board-approved massage school for purposes of licensure in Florida under Rule 64B7-32.003, Florida Administrative Code. Subsequent to completion of her studies at Mueller College of Holistic Studies and Desert Resorts School of Soma Therapy, Petitioner applied for licensure as a massage therapist in the State of Florida. Rule 64B7-32-002, Florida Administrative Code, requires graduation from a Board-approved massage school for licensure eligibility in Florida. Pursuant to Rule 64B7-32.003, Florida Administrative Code, the minimum requirements for Board approval of a massage school includes 500 classroom hours of coursework as follows: 150 hours in Anatomy and Physiology; 225 hours in Basic Massage Theory and Clinical Practicum; 10 hours in Florida Statutes/Rules and History of Massage; 15 hours in Theory and Practice of Hydrotherapy; 97 hours in Allied Modalities; and 3 hours in HIV/AIDS. Because neither Mueller nor Desert Resorts were Board-approved massage schools, Petitioner, in order to meet Florida licensure eligibility requirements, was required to transfer credit through a massage school approved by the Board. To meet Florida requirements, Petitioner was further required to complete coursework in HIV/AIDS, Florida statutes and rules, and the history of massage therapy. Petitioner successfully completed the Florida licensure eligibility requirements by receiving further instruction at the Core Institute in Tallahassee, Florida, a Board-approved massage school, and by completing her HIV/AIDS course at another Board-approved massage school in Atlanta, Georgia. Petitioner's coursework from Mueller and Desert Resorts was transferred through, and included in, her credited hours for licensure eligibility in Florida by completion of her instruction at the Board-approved massage schools she attended in Florida and Georgia. As indicated above, subsequent to her licensure as a massage therapist in Florida, Petitioner applied to the Board for approval as a continuing education provider for six courses in the following subjects: professional ethics, manual lymph draining, reflexology, aromatherapy, sports massage, and HIV/AIDS. For several years Petitioner has been preparing and offering correspondence or home study courses related to massage therapy under the corporate name Tranquility, Inc. Petitioner's correspondence courses are used as part of the curriculum of Applied Kinesiolgy Studies, a school of massage/bodywork in Reston, Virginia. Applied Kinesiolgy Studies is not a Board- approved massage school. Petitioner's home study courses are also used as part of the continuing education program at the Alternative Conjunction, which is a Board-approved school of massage in Lemoyne, Pennsylvania. The requirements for approval as a continuing education provider are set forth in Rule 64B7-28.010, Florida Administrative Code, as more fully set out below. There is no dispute that Petitioner is ineligible for approval as a continuing education provider under Rule 64B7-28.010(2)(c )1., 2.a., or 2.b., Florida Administrative Code, in that Petitioner does not hold a bachelor's degree from a college or university accredited by the Department of Education, has not had a minimum of two years teaching experience in the subject matter to be offered, and has not taught the courses three times in the past two years before a professional convention, professional group, or at a massage therapy school. Although Petitioner's correspondence courses are offered through at least two massage therapy schools, Petitioner does not serve on the faculty of any massage therapy school, and does not present classes of instruction at any massage therapy school. The dispute in this matter arises in regard to the application of Rule 64B7-28.010(2)(c ) 2.c., Florida Administrative Code, which allows for approval as a continuing education provider if a person has graduated from a school of massage which has equivalency to a Board-approved school, has completed three years of professional experience in the practice of massage, and "has completed specialized training in the subject matter and has a minimum of two years of practical experience in the subject." Petitioner takes the position that her coursework at Desert Resorts, which includes 900 hours of "postgraduate work," constitutes "specialized training" for the purposes of approval as a continuing education provider under Rule 64B7-28.010, Florida Administrative Code. Respondent takes the position that Petitioner's "postgraduate" coursework at Desert Resorts in California was not specialized training, but primarily basic massage training. Moreover, Respondent contends that Petitioner's training was not conducted at a Board-approved massage school, and the credit for this training was already considered as part of the fulfillment of Petitioner's basic licensure eligibility requirements which was afforded Petitioner by the Board approved schools she attended in order to obtain licensure in Florida. A comparison of the educational requirements for licensure in Florida found in Rule 64B7-32.003, Florida Administrative Code with the coursework completed by Petitioner at Mueller College and Desert Resorts Schools shows that: Petitioner completed 75 hours of practice and demonstration at Mueller College and 468 hours of assessment and remediation at Desert Resorts, a combined 543 hours which correspond to the requirements in basic massage theory and clinical practicum. The transcript shows that 318 of the 500 hours Petitioner completed in excess of the Florida minimum requirements were in clinical practicum, and not in the subjects in which Petitioner seeks specialized training designation and continuing education provider approval. Petitioner's training in lymphatic systems is part of the Florida requirement for 150 hours of study in anatomy and physiology, and is not specialized training. The coursework credited by Desert Resorts School to meet the requirement of 150 hours in anatomy and physiology does not total 150 hours, but 109 hours as follows: Massage Technician 13 hours; Anatomy and Physiology 48 hours; Advanced Massage/Active 48 hours. Accordingly, when Petitioner's credits were transferred to a Florida approved massage school, additional credits were needed to meet the Florida anatomy and physiology requirements, which Petitioner would have had to take at the Core Institute although her transcript from Core was not submitted. 144 hours coursework taken at the Desert Resorts School are not equivalent to any of the Florida requirements, and include 48 hours of study in each of the following: communication skills and ethics, body/mind integration, and health and nutrition. None of these courses relate to the six topics of continuing education courses for which Petitioner seeks approval, and are therefore irrelevant. Of the 500 excess hours of study taken by Petitioner at Desert Resort, 462 of those hours do not constitute advanced or specialized training in manual lymph drainage, aromatherapy, sports massage or HIV/AIDS. There is nothing on the transcripts that indicated any study in reflexology, for which Petitioner seeks approval as a continuing education provider and there is no indication from the transcript that reflects study in HIV/AIDS. The only training Petitioner has demonstrated in HIV/AIDS is the continuing education courses necessary to renew her license. The documentation Petitioner provided does not demonstrate any specialized training in addition to the transcripts from which she was granted initial licensure in Florida, and there is no evidence other than what was reflected on Petitioner's transcripts in the areas of manual lymph drainage, relexology, aromatherapy, or sports massage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for approval as a continuing education provider. DONE AND ENTERED this 6th day of July, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1998. COPIES FURNISHED: Carol Rangle Gilmore, pro se 520 107th Avenue North Naples, Florida 34108 Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker, Executive Director Board of Massage Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues presented in this case are whether Respondent has violated the provisions of chapters 456 and 480, Florida Statutes, as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The following findings of fact are based on the testimony, evidence admitted at the formal hearing, and the agreed facts in the pre-hearing stipulation. The Department is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43, Florida Statutes, and chapters 456 and 480. At all times material to the allegations in this case, Respondent was licensed to practice as a massage therapist in the State of Florida, having been issued license number MA 79509. At all times material to the allegations in this matter, Respondent was employed as a massage therapist at Daytona College, in Daytona Beach, Florida. Respondent’s address of record is 10 Spanish Pine Way, Ormond Beach, Florida 32174. S.W. is a licensed mental health counselor who has been licensed for approximately 22 years. She resides in Clermont, Florida, which is where she lived at the time of the massage. In July 2017, S.W. and C.W., her 23-year-old daughter, traveled to the Daytona Beach area to visit S.W.’s elderly mother. On July 19, 2017, S.W. and C.W. went to Daytona College, for the first time, for a massage. Upon arriving at the school, they were greeted by the receptionist. S.W. and C.W. were scheduled for 80-minute massages to take place at 3:30 p.m. However, the ladies arrived ten minutes late, so the massages began late. Upon arrival, the ladies were asked whether they needed to use the restroom, which they did. After using the restroom, the ladies were taken to the massage area for their services. S.W. selected the male massage therapist based on her past positive experiences with male therapists. S.W. had received a number of massages in the past, including massages by men. She allowed her daughter to be scheduled with the female massage therapist because she believed her daughter preferred a woman. S.W. was scheduled for a massage with Respondent, and C.W. was scheduled with Elizabeth Branson. Respondent escorted S.W. to the massage room first. Ms. Branson escorted C.W. to the room a few minutes later. As Respondent escorted S.W. to the massage room, S.W. described the areas in which she wanted special attention, including her neck, shoulders, scalp, and feet. Respondent asked S.W. whether she needed massage in the sciatic area. S.W. had problems in the sciatic area, so she consented to have the area massaged. The common room where massages occurred at Daytona College contained eight massage tables separated by curtains. Respondent took S.W. into the massage room and instructed her to undress to her comfort level. Respondent left the room while S.W. undressed down to her underwear. When Respondent reentered the room, S.W. was draped with a sheet. Respondent tucked the drape into S.W.’s underwear and lowered it onto her buttocks. A short time later, S.W. could hear her daughter in the area near her, but she could not see her. C.W. whispered to S.W. to let her know she was in the room. At some point, S.W. heard her daughter exit the room. C.W. finished her massage before S.W., even though S.W.’s service began before C.W.’s. C.W. recalled that her mother was unusually quiet during the massage instead of being “chatty,” as she normally would be. C.W. waited in the hallway outside the massage room for four or five minutes for S.W.’s massage to finish. After S.W. came out of the massage room, C.W. immediately noticed that something was wrong. When S.W. exited the room, she was “wired” and not relaxed, as she would normally appear after a massage. C.W. described her as appearing nervous and agitated. C.W. could tell that something was wrong, but S.W. did not say anything at that time. The two ladies walked to the front desk. As was her routine, S.W. paid for both massages and left a $10 tip. She did not make a complaint regarding the massage with the receptionist before leaving the school. Concerned regarding her mother’s behavior, C.W. asked S.W. what happened. S.W. stated that something weird happened. The ladies left the school and began driving to their destination. S.W. continued to be upset and ultimately, began crying. She was so upset that initially, she could not articulate what occurred. S.W. ultimately told C.W. that Respondent had placed his hand under her underwear and touched her clitoris. S.W. contacted her friend Mike, a law enforcement officer. S.W. explained to Mike what happened, and he suggested that she contact the police to report what happened to her. S.W. and C.W. called the police and requested that an officer meet the ladies at Daytona College. They also contacted the school and advised them that S.W. had been inappropriately touched during her massage. They arrived back at the school approximately 20 minutes later. The officer arrived shortly after S.W. and C.W. The officer interviewed S.W. and she reported to him that while massaging her thighs, Respondent “grazed” her vaginal area with his finger. S.W. also reported that Respondent touched her clitoris with his finger. S.W. declined to pursue criminal charges and stated she would file a complaint with the Department. However, she expressed that she wanted to ensure there was a record of the incident so another woman would not have the same experience. On or about July 26, 2017, one week later, S.W. filed a complaint with the Department of Health. S.W. submitted a typewritten statement regarding the events involving Respondent. S.W. related that at the beginning of the massage, she gave Respondent permission to pull down her underwear and tuck in the drape. She stated that toward the end of the massage, Respondent “grazed” her vagina outside her underwear. He then placed his finger under her underwear and began massaging her clitoris for a couple of seconds. She stated that she grabbed Respondent’s hand and pushed it away. In response, Respondent abruptly told S.W. that the massage was done. In addition to the report to the police and the Department, S.W. also reported the incident to the school administrators, Dr. Ali and Mr. Brooks. Dr. Ali met with S.W. and C.W. when they returned to the school. Dr. Ali described S.W. as appearing embarrassed, subdued, and uncomfortable. Mr. Brooks was also present during the meeting. He was called to campus after he received a report that something inappropriate happened. He observed that S.W. appeared upset. Although there was no expert offered to testify in this matter, Chris Brooks, LMT, provided insight regarding the type of massage provided to S.W. He explained the difference between sensualized touch and sexualized touch. A sensualized touch is not uncommon in massage. On the other hand, sexualized touch is used to evoke sexual pleasure. At hearing, S.W. was clear and unwavering in her recollection of the events involving Respondent touching her vaginal area. S.W. appeared anxious, uncomfortable, and her voice cracked when she testified that Respondent moved her underwear and touched her vaginal area. Specifically, she testified that Respondent grazed her vagina on top of the front of her underwear. She was in such shock that it happened she could not say anything. Respondent then put a bare finger underneath her underwear and began massaging her clitoris. She still could not speak, so she quickly grabbed his hand and pushed it away. Consistent with her statement to the police officer and her written statement, she credibly testified that Respondent touched her vaginal area with his finger. At hearing, Respondent denied touching S.W.’s vagina during the massage. He also denied rubbing her clitoris. Mr. Brooks, who is personally and professionally acquainted with Respondent, testified that Respondent seemed shocked to learn of S.W.’s complaint. Respondent testified that he draped S.W.’s legs in such a way that it caused the draping to “bunch” between the area massaged and the genitalia. Respondent argues that S.W. could not determine whether the draping touched her genitals when Respondent massaged her legs. However, when pressed on this point, S.W. unequivocally testified that she was certain it was Respondent’s finger that touched her clitoris. Respondent had no prior complaints of inappropriate touching before S.W.’s complaint. Although Mr. Brooks asked him about the complaint on the date of the incident, there was no evidence offered at hearing that Respondent was formally interviewed by the school administration. However, Respondent was terminated from his job at Daytona College based on S.W.’s complaint. Respondent was also not interviewed by the police officer investigating the complaint. Respondent was not charged with a crime. Respondent has no prior disciplinary action involving his license to practice massage therapy. The evidence demonstrates that Respondent crossed the boundaries of appropriate massage into sexual misconduct when he massaged S.W.’s clitoris with his finger. While Respondent’s testimony seemed sincere, S.W. was more persuasive. Based on the totality of the evidence presented at hearing, there is clear and convincing evidence that Respondent touched S.W.’s vaginal area or clitoris with his finger. The placement of a massage therapist’s finger on the vaginal area or clitoris of a patient is outside the scope of the professional practice of massage therapy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding: Respondent guilty of violating sections 480.046(1)(p) and 480.0485 as further defined in rule 64B7-26.010; Imposing a fine of $2,500; and Revoking Respondent’s license to practice massage therapy. DONE AND ENTERED this 5th day of April, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2019.
The Issue The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of section 480.0485, Florida Statutes, and, if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Massage Therapy, is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43, and chapters 456 and 480, Florida Statutes. At all times material to this proceeding, Na Li was a licensed massage therapist in the state of Florida, holding license number MA71793. Between November 2013 and December 2013, Na Li was employed by A Golden Massage and Spa, located in Hallandale Beach, Florida, where she performed Swedish massages and deep tissue massages. During November and December 2013, M.B. assisted the Hallandale Police Department in a criminal investigation. On November 13, 2013, M.B., working in an undercover capacity with Detective R.S., went to A Golden Massage and Spa as a client seeking a massage. When M.B. and R.S. entered A Golden Massage and Spa, they were greeted by a woman who introduced herself as Cici. They told Cici that R.S. was M.B.’s boss, that he had just won some money in a casino, and that he was treating M.B. to a massage. R.S. paid for two massages and Cici led M.B. to a massage room and told him to disrobe. M.B disrobed and lay face down, covered by a towel. Na Li then came into the room and introduced herself as “Yumi.” She asked M.B. if he needed a massage in any particular place, to which he said “no.” Na Li put oil on her hands and began to massage M.B. from the neck down. Na Li was concentrating on M.B.’s lower back, and then removed the towel and began massaging M.B.'s buttocks and inner legs and thighs, occasionally touching M.B.'s testicles with the back of her hand. Each time Na Li touched M.B’s testicles, she would giggle. Na Li then asked M.B. to lie on his back. M.B. turned over, Na Li put a pillow behind M.B.’s head, and she covered his genitals with a towel. Na Li resumed massaging M.B., working his upper body, shoulders, and chest. Na Li then removed the towel and placed it to the side. Na Li began massaging M.B.’s upper thigh and again occasionally touched M.B.’s genitals with the back of her hand. She then indicated through gestures that M.B. should make a fist with his right hand and put it over his penis. When M.B. complied, she placed her own hand on top of M.B’s hand and began to move it in a circle and up and down. She was moving his hand, as M.B. testified, in a “masturbation way.” M.B. stopped Na Li and asked her “how much for her to do it.” Na Li giggled, and resumed massaging M.B. Then, a second time, she put his hand on his penis and her hand on top of his. Again, M.B. asked her how much. She replied “tip,” indicating that she would expect a better tip. M.B. did not agree to give a better tip, saying that his “boss” had his money. Na Li next began to massage M.B.’s arm, and worked down to his fingers. She then placed her face in M.B.’s left hand and tried to lick his middle finger. On December 4, 2013, M.B. again went to the A Golden Massage and Spa with R.S. as part of the continuing investigation. On this occasion, he paid for himself, and was again shown to a massage room. Na Li came into the room. M.B. and Na Li recognized each other, and Na Li giggled. She again asked M.B. if he needed a massage in any particular place; he again said no. She used oil and began to massage M.B., eventually removing the towel, massaging his thighs, and touching his testicles with the back of her hand. She began tickling M.B. and licking her lips while looking at M.B.’s penis. He asked her how much for her to “do it with her lips.” She giggled and continued tickling him, but gave no answer. When he again asked her how much, she said “no, no,” which M.B. interpreted as declining to engage in oral sex. M.B. did not ask that the draping covering his genitals be removed. He did not ask Na Li to touch his genitals or give her permission to do so on either November 13th or December 4th. Consistent with the testimony of Ms. Jennifer Mason, a licensed massage therapist and expert in massage therapy, there is no reason for draping to be removed during the course of a massage. If draping comes off by accident, it is usually put back on right away. There is no massage technique that requires the use of a massage therapist’s tongue or mouth. While massage of the buttocks and inner thigh of a male patient is sometimes appropriate, it should be done with careful draping and tucking of the drape to avoid inadvertent touching of the genitalia. There is never a reason for a massage therapist to touch a patient’s genitalia. Na Li’s actions on November 13 and December 4, 2013, were outside the scope of generally accepted treatment of massage therapy patients. Na Li’s contrary testimony, to the effect that she performed only standard massage techniques on M.B., was not credible and is rejected. Na Li used the massage therapist-patient relationship to attempt to induce M.B. to engage in sexual activity and to attempt to engage him in sexual activity. Na Li engaged in sexual misconduct in the practice of massage therapy. Na Li has never had any prior discipline imposed against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding Na Li in violation of section 480.0485, Florida Statutes, constituting grounds for discipline under section 480.046(1)(p), Florida Statutes; imposing a fine of $2,500.00; revoking her license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 23rd day of September, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2015. COPIES FURNISHED: Kristen M. Summers, Esquire Oaj S. Gilani, Esquire Brynna J. Ross, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Simon Patrick Dray, Esquire S. Patrick Dray, P.A. Penthouse I 40 Northwest Third Street Miami, Florida 33128 (eServed) Christy Robinson, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-3257 (eServed) Daniel Hernandez, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Parties The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses. On July 31, 2008, the Department issued Respondent license number MA 54053, which authorized her to practice massage therapy in the state of Florida. Respondent's address of record is 2615 South University Drive, Davie, Florida 33328. The Events Respondent was born in China and, at all times relevant to this proceeding, was a citizen of China. In 2001, Respondent immigrated to the United States and became a citizen of the state of California. In or around December 2006, Respondent enrolled at Royal Irvin College ("Royal Irvin"), an institution located in Monterey Park, California, that offered massage therapy instruction. Some three months later, upon Respondent's successful completion of a course of study comprising 500 hours, Royal Irvin awarded her a degree. Thereafter, Respondent obtained permits to practice massage therapy in three California municipalities and, on July 26, 2007, passed the National Certification Examination for Therapeutic Massage and Bodywork. In early 2008, Respondent relocated to south Florida in pursuit of better-paying employment opportunities. Respondent's search ultimately brought her to "Oriental Massage," whose owner, Ah Ming, informed her that she needed to obtain a Florida license to be eligible for hire. As Royal Irvin was not a Board-approved massage school, Respondent needed to complete a course of study at an approved institution or, alternatively, an apprenticeship program. At the suggestion of Mr. Ming, Respondent telephoned Glenda Johnson, the registrar of the Florida College of Natural Health ("FCNH")——a Board-approved massage school. During their initial conversation, Respondent explained her situation to Ms. Johnson, who, in turn, recommended that Respondent come to her office at FCNH's Pompano Beach campus. Respondent's subsequent appointment with Ms. Johnson and her application for licensure are discussed shortly; first, though, a description of FCNH——and its responsibilities under Florida law——is in order. FCNH, an incorporated nonpublic postsecondary educational entity, holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes (2012).2/ In addition to being duly licensed by the state, FCNH is accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy. Finally, FCNH is a "Board-approved massage school" within the meaning of that term as defined in section 480.033, Florida Statutes. At the times relevant to this proceeding, the minimum requirements for becoming and remaining a Board-approved massage school were set forth in Florida Administrative Code Rule 64B7- 32.003 (Oct. 30, 2007), which provided in relevant part as follows: In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must: Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 1005, F.S., or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . . Apply directly to the Board of Massage Therapy and provide the following information: Sample transcript and diploma; Copy of curriculum, catalog or other course descriptions; Faculty credentials; and Proof of licensure by the Department of Education. (emphasis added). As an institution holding a license by means of accreditation, FCNH must comply with the fair consumer practices prescribed in section 1005.04 and in the rules of the CIE.3/ Regarding these required practices, section 1005.04, Florida Statutes (2008), provided during the relevant time frame as follows: Every institution that is under the jurisdiction of the commission or is exempt from the jurisdiction or purview of the commission pursuant to s. 1005.06(1)(c) or (f) and that either directly or indirectly solicits for enrollment any student shall: Disclose to each prospective student a statement of the purpose of such institution, its educational programs and curricula, a description of its physical facilities, its status regarding licensure, its fee schedule and policies regarding retaining student fees if a student withdraws, and a statement regarding the transferability of credits to and from other institutions. The institution shall make the required disclosures in writing at least 1 week prior to enrollment or collection of any tuition from the prospective student. The required disclosures may be made in the institution's current catalog; Use a reliable method to assess, before accepting a student into a program, the student's ability to complete successfully the course of study for which he or she has applied; Inform each student accurately about financial assistance and obligations for repayment of loans; describe any employment placement services provided and the limitations thereof; and refrain from promising or implying guaranteed placement, market availability, or salary amounts; Provide to prospective and enrolled students accurate information regarding the relationship of its programs to state licensure requirements for practicing related occupations and professions in Florida; * * * In addition, institutions that are required to be licensed by the commission shall disclose to prospective students that additional information regarding the institution may be obtained by contacting the Commission for Independent Education, Department of Education, Tallahassee. (emphasis added). At the time of the events giving rise to this proceeding, the CIE's rule relating to fair consumer practices provided in relevant part as follows: This rule implements the provisions of Sections 1005.04 and 1005.34, F.S., and establishes the regulations and standards of the Commission relative to fair consumer practices and the operation of independent postsecondary education institutions in Florida. This rule applies to those institutions as specified in Section 1005.04(1), F.S. All such institutions and locations shall demonstrate compliance with fair consumer practices. (6) Each prospective student shall be provided a written copy, or shall have access to an electronic copy, of the institution's catalog prior to enrollment or the collection of any tuition, fees or other charges. The catalog shall contain the following required disclosures, and catalogs of licensed institutions must also contain the information required in subsections 6E- 2.004(11) and (12), F.A.C.: * * * (f) Transferability of credits: The institution shall disclose information to the student regarding transferability of credits to other institutions and from other institutions. The institution shall disclose that transferability of credit is at the discretion of the accepting institution, and that it is the student's responsibility to confirm whether or not credits will be accepted by another institution of the student's choice. . . . No representation shall be made by a licensed institution that its credits can be transferred to another specific institution, unless the institution has a current, valid articulation agreement on file. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: Units or credits earned at and transferred from other postsecondary institutions, when congruent and applicable to the receiving institution's program and when validated and confirmed by the receiving institution. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving institution. * * * (11) An institution is responsible for ensuring compliance with this rule by any person or company contracted with or employed by the institution to act on its behalf in matters of advertising, recruiting, or otherwise making representations which may be accessed by prospective students, whether verbally, electronically, or by other means of communication. Fla. Admin. Code R. 6E-1.0032 (July 23, 2007)(emphasis added). As a duly-licensed, accredited, Board-approved massage school, FCNH was, at all relevant times, authorized to evaluate the transferability of credits to FCNH from other massage schools, so that credits earned elsewhere (including from schools that were not Board-approved) could be applied toward the award of a diploma from FCNH. In making such an evaluation, FCNH was obligated to follow the standards for transfer of credit that the Board had established by rule.4/ Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, sign, and attach to the student's transcript the Board's Transfer of Credit Form, by which the school's dean or registrar certified that the student's previously-earned credits, to the extent specified, were acceptable in lieu of the student's taking courses at FCNH. Returning to the events at hand, Respondent met with Ms. Johnson, FCNH's registrar, on March 17, 2008. Notably, Ms. Johnson possessed actual authority, on that date and at all relevant times, to generate official transcripts and diplomas on behalf of FCNH. The meeting, which took place on a weekday during normal business hours, was held in Ms. Johnson's office——located on the first floor of a multi-story building on FCNH's Pompano Beach campus. Upon Respondent's arrival (at the main entrance), a receptionist summoned Ms. Johnson, who, a short time later, appeared in the lobby and escorted Respondent to her office. During the meeting that ensued, Respondent reiterated (with her limited English skills) her desire to obtain licensure in Florida as a massage therapist. To that end, Respondent presented Ms. Johnson with various documents, which included her diploma and transcript from Royal Irvin, copies of her existing professional licenses, and proof of her national certification. As the meeting progressed, Ms. Johnson made copies of Respondent's records and asked her to sign an FCNH enrollment agreement, which Respondent did. The agreement, which is part of the instant record, indicates that Respondent was enrolling for the purpose of "(Transfer of Licensure) Therapeutic Massage Training." The agreement further reflects, and Respondent's credible testimony confirms, that, on the date of their meeting, Ms. Johnson collected $520.00 in fees5/ from Respondent. In addition to the enrollment agreement,6/ Ms. Johnson filled out, and Respondent signed, a three-page form titled, "State of Florida Application for Massage Therapist Licensure." In the application, Respondent truthfully disclosed, among other things, that she had completed 500 hours of study at Royal Irvin; that Royal Irvin was not approved by the Board; and that she had not attended an apprenticeship program. Before the meeting ended, Respondent observed Ms. Johnson print and sign two documents: an FCNH Certificate of Completion, which reflected that Respondent had satisfied a two- hour course relating to the prevention of medical errors; and an FCNH Certificate of Completion indicating the completion of a "Therapeutic Massage Training Program (Transfer of Licensure)." When asked about the documents, Ms. Johnson informed Respondent, erroneously, that her prior coursework and existing credentials were sufficient for licensure. (Among other things, Ms. Johnson should have advised Respondent that Board-approved coursework in "HIV/AIDS" and the "prevention of medical errors"——neither of which Respondent completed until after7/ the Complaint was filed in this matter——was required8/ for licensure.) All Respondent needed to do, Ms. Johnson incorrectly explained, was read an FCNH-prepared booklet concerning the prevention of medical errors. Consistent with Ms. Johnson's instructions, Respondent took the booklet home and reviewed its contents. In the weeks that followed, the Department received Respondent's application for licensure and various supporting documents, which included: the FCNH certificates (discussed above); a "Transfer of Credit Form" signed by Ms. Johnson, which indicates that FCNH accepted Respondent's credits from Royal Irvin, and, further, that Respondent's coursework at Royal Irvin included a two-credit class involving the prevention of medical errors; an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing that Respondent had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)"; Respondent's diploma and transcript from Royal Irvin; and a copy of Respondent's national certification as a massage therapist. Collectively, the credit transfer form, the FCNH certificates, and the FCNH transcript "signify satisfactory completion of the requirements of an educational or career program of study or training or course of study" and constitute a "diploma" within the meaning of that term as defined in section 1005.02(8), Florida Statutes. (These documents, which Respondent's FCNH diploma comprises, will be referred to hereafter, collectively, as the "Diploma.") On May 30, 2008, the Department provided written notification to Respondent that, upon initial review, her application was incomplete because it failed to include copies of her California esthetician's license and massage permit from the city of Costa Mesa, California. Significantly, the correspondence noted no other irregularities or omissions concerning Respondent's application or supporting documentation. Consistent with the Department's request, Respondent furnished copies of her esthetician's license and massage permit from Costa Mesa. Thereafter, on July 31, 2008, the Department issued Respondent her license to practice massage therapy. Although the Department seeks to characterize the issuance of Respondent's license as a "mistake" on its part, such a contention is refuted by the final hearing testimony of Anthony Jusevitch, the executive director of the Board. Mr. Jusevitch testified, credibly, that the Respondent's application materials contained no facial irregularities or flaws that would have justified a denial: Q. Mr. Jusevitch, is this, then, the complete application file that was received by the board? A. Yes. Q. When you look at all of the documents in this application file, is there anything in the file that would have caused the Board of Massage Therapy to reject this application? A. I didn't see anything that would have cause[d] us to reject this application when I review it; no. * * * A. No, there was nothing irregular about the application. . . . Final Hearing Transcript, pp. 83; 86. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination (which the NCB administers) from FCNH graduates whose transcripts seemed irregular. What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin, and that the same member of FCNH's administration——i.e., Ms. Johnson——had accepted their transfer credits. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected some anomalies in them. She was unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students. Ms. Wade confronted Ms. Johnson with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them, but she denied——untruthfully, at least with respect to her dealings with Respondent——ever having taken money for doing so. (Ms. Johnson provided the rather dubious explanation that she had been merely trying to "help" people.) Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Thereafter, Ms. Wade notified the Department that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH cooperated. The investigation uncovered approximately 200 to 250 graduates, including Respondent, whose credentials FCNH could not confirm.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding Respondent not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 14th day of June, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 14th day of June, 2013.
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
