Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The Respondent, Dana Carlos, is a licensed massage therapist in the State of Florida, having been issued license number MA 0002811. The Respondent has been so licensed at all times material to this proceeding. On December 10, 1986, the Respondent was the co-owner of a massage establishment known as Massage by Dana and Jan, which at that time was located at 721 U.S. Highway 1, Suite 222, North Palm Beach, Florida 33408. That establishment was licensed by the State of Florida, having been issued license number MM 0000202. When Inspector Jean Robinson inspected that establishment on December 10, 1990, Gemma V. Koder was massaging a client without being supervised by either the Respondent or Jan Carlos. The client had come in early and Ms. Koder had called the Respondent by telephone to ask what she should do. The Respondent had told Gemma V. Koder to go ahead and start massaging the client and that she (the Respondent) would be there as soon as possible. The Respondent was approved as a sponsor for Gemma V. Koder, which sponsorship terminated on May 14, 1987. Gemma V. Koder was an apprentice for Dana Carlos. Gemma V. Koder had an apprentice license that allowed her to perform massages only when either the Respondent or Jan Carlos were physically present to supervise her. Either the Respondent or Jan Carlos could supervise Ms. Koder, because they were "co-sponsors." The Respondent later moved her massage establishment to 3700 Georgia Avenue, West Palm Beach, Florida. At that location she practiced massage under the name Massage by Dana and Jan. Dana Carlos leased the premises at that location. On April 13, 1988, the premises at 3700 Georgia Avenue were inspected by Inspector Jean Robinson. On that day Tammy Coxey was working as an unlicensed apprentice for the Respondent. The Respondent had applied for an apprentice license for Tammy Coxey, but the apprentice license was never approved by the Board of Massage. Therefore, the Respondent was never approved as a sponsor for Tammy Coxey and the Respondent knew that Tammy Coxey did not have an apprentice license or any other type of license. Nevertheless, admittedly motivated by profit potential, the Respondent disregarded the licensing requirements and put Tammy Coxey to work. On April 13, 1988, the room in which Tammy Coxey was performing massages as an employee of the Respondent was across the hall from the licensed massage establishment the Respondent was authorized to operate. The room in which Tammy Coxey was performing massages as an employee of the Respondent was never a licensed massage establishment. On the 6th and 7th of October, 1988, Sergeant Harvey Starr, of the West Palm Beach Police Department, called the establishment known as Massage by Dana and Jan and spoke to the Respondent on the telephone. He inquired about a "full body treatment" and was told that "all her girls gave full body treatments that included a release." In street jargon, a massage that includes "full body treatment including release," means a massage that includes masturbation to climax. On October 11, 1988, Sergeant Starr made an appointment for a massage and went to the premises of Massage by Dana and Jan, where he was met by the Respondent. Sergeant Starr told the Respondent that his name was "Richard," that he was the one who had called her on the telephone, and then asked what the charge was for a "full body treatment." The Respondent said it would be $25. Sergeant Starr than asked if that included a "release" and the Respondent told him that would cost $28. Sergeant Starr then specifically asked the Respondent if a "release" meant that he would be masturbated, and the Respondent answered that it did. Sergeant Starr then asked if the Respondent wanted to be paid. She, answered in the affirmative, Sergeant Starr handed her $30, and at that time he identified himself as a police officer and told her that she was under arrest. The Respondent was arrested on the charge of soliciting for the purpose of prostitution. Beginning in 1974 and for several years thereafter, in an effort to compete effectively, attract repeat business, and maintain market share in the Palm Beach County massage market, the Respondent engaged in the practiced of regularly masturbating massage clients.
Recommendation Upon consideration of all of the foregoing, it is recommended that the Board of Massage enter a Final Order in this case to the following effect: Dismissing all charges of violations set forth in Count II of the Amended Administrative Complaint; Dismissing the charges in Count III of the Amended Administrative Complaint that allege violations based on Section 480.47, Florida Statutes (the violations alleged at subparagraphs (a) and (c) of Paragraph 18 of the Amended Administrative Complaint); Finding the Respondent guilty of the violation charged in Count I of the Amended Administrative Complaint; Finding the Respondent guilty of the violations of Section 480.046(1)(e) and 480.046(1)(k), Florida Statutes, alleged in subparagraphs (b) and (d) of Paragraph 18 of Count III of the Amended Administrative Complaint; and Imposing a penalty , for the foregoing violations consisting of the revocation of the Respondent's license. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 4th day of June, 1990. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 89-6091 Consistent with the requirements of Section 120.59(2), Florida Statutes, the following are my specific rulings on the proposed findings of fact contained in the Petitioner's Proposed Recommended Order. Paragraphs 1 through 5: Accepted in substance. Paragraph 6: Rejected as constituting a conclusion of law rather than a finding of fact. Paragraph 7: Rejected as irrelevant to charges in this case. Paragraphs 8 through 14: Accepted in substance. Paragraph 15: Rejected because only record basis is uncorroborated hearsay. Paragraphs 16 through 23: Accepted in substance. Paragraph 24: Rejected as subordinate and unnecessary, even though supported by record evidence. Paragraph 25: Accepted in substance. With regard to the post-hearing submissions of the Respondent, it is first noted that, even after a deadline extension of over a month, the Respondent's post-hearing submissions were filed late. Section 120.59(2), Florida Statutes, requires a ruling on each proposed finding only where proposed findings are submitted "in accordance with agency rules." Rule 22I-6.031(1), Florida Administrative Code, provides for the filing of proposed findings of fact and other proposed matters "within a time designated by the Hearing Officer." The Respondent's post-hearing materials were not submitted in accordance with the cited rule because they were filed beyond the extended deadline. Therefore, Section 120.59(2), Florida Statutes, does not require a specific ruling on each and every random sentence that might arguably constitute a proposed finding wherever found within the 47 pages of assorted post-hearing material submitted by the Respondent. Accordingly, while I have carefully read each of the 47 pages of post-hearing material submitted by the Respondent, I have not attempted the herculean task of gleaning through the Respondent's eclectic accumulation of papers and attempting to sort out the few statements that might arguably be construed as proposed findings of fact from the morass of arguments, statements of law, total irrelevancies, inappropriate documents (such as rejected exhibits), and other documents that serve no useful purpose. Suffice it to say that it is clear that the Respondent is of the view that the Petitioner has failed to prove its case, and it is clear from the findings of fact made in the Recommended Order that the Hearing Officer is, for the most part, of the view that the record in this case warrants an opposite finding. COPIES FURNISHED: Cynthia Gelmine, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Ms. Dana Carlos 4425 Rachael Way West Palm Beach, FL 33406 Mildred Gardner Kenneth D. Easley, Esquire Executive Director General Counsel, Department Board of Massage of Professional Regulation Northwood Centre 1940 North Monroe Street 1940 North Monroe Street Tallahassee, FL 32399-0792 Tallahassee, FL 32399-0792
The Issue The issues for determination in this case are whether Respondent committed the acts alleged in the Administrative Complaint, and if so, whether Respondent's license to practice massage therapy in Florida should be revoked or otherwise disciplined.
Findings Of Fact Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION (DBPR), is the agency of the State of Florida vested with the statutory duty and authority to administer the provisions of Chapter 480, Florida Statutes, governing massage practice. Respondent, ROBERT WILLIAM IVANY, was initially licensed as a massage therapist in the State of Florida on July 8, 1986, and presently holds license number MA 0006899 (Massage). Respondent's license is currently in "delinquent/renewal notice prepared" status. Respondent's current license biennium expires on January 31, 1997. At all material times hereto, Respondent was employed as a licensed massage therapist at the Pasadena Wellness Center in St. Petersburg, Florida. On or about January 28, 1994, complainant, Linda Schaufele, arrived at the Pasadena Wellness Center to receive a massage. Ms. Schaufele had been experiencing soreness in her shoulder and neck and wanted a massage to alleviate this condition. Ms. Schaufele had previously received massages many times; however, this was her first visit to the Pasadena Wellness Center. Ms. Schaufele was sent by the staff receptionist at the Pasadena Wellness Center to a massage room, where she removed her clothing except for her underwear. Respondent subsequently entered the massage room. Prior to this time, Ms. Schaufele did not know Respondent, and had no previous contact with Respondent. Respondent entered into a therapist-client relationship with Ms. Schaufele. Ms. Schaufele informed Respondent of the soreness in her shoulder and neck. Ms. Schaufele agreed to a full body massage, but requested Respondent concentrate on her shoulder and neck. Respondent began the massage with Ms. Schaufele lying on her stomach. Respondent used oil or lotion during the massage. After massaging her shoulders, neck and working down her back, Respondent turned Ms. Schaufele over to lie on her back and began to massage her from the waist down. At this time Respondent distinctly placed his hand between Ms. Schaufele's legs into her pubic area. Ms. Schaufele immediately stiffened her legs to prevent Respondent from continuing to keep his hand between her legs. Respondent removed his hand from between Ms. Schaufele's legs, and finished the massage. Respondent used the therapist-client relationship to engage in sexual activity with Ms. Schaufele. Ms. Schaufele was very uncomfortable during the remainder of the massage, and was upset about the Respondent's actions. Subsequent to this incident on January 28, 1994, Ms. Schaufele became acquainted with the owner of the Pasadena Wellness Center. Ms. Schaufele then informed the owner of the Respondent's actions which occurred during her massage on January 28, 1994. Ms. Schaufele was told by the owner that there had been other complaints regarding Respondent. On or about May 12, 1993, complainant, Nancy Scotti, arrived at the Pasadena Wellness Center to receive a massage. Ms. Scotti had never received a massage before, and had no prior experience with a licensed massage therapist. Ms. Scotti was instructed by the staff receptionist to fill out certain forms. Respondent then came to the reception area and led Ms. Scotti to a massage room. Ms. Scotti did not know Respondent, and had no previous contact with Respondent. Respondent entered into a therapist-client relationship with Ms. Scotti. Respondent instructed Ms. Scotti to "get ready", which in response to, Ms. Scotti undressed, except for her underwear, and lay down on her stomach on the massage table. Ms. Scotti covered herself with a sheet that was provided in the massage room. Ms. Scotti informed Respondent that she had experienced pain in her upper back, shoulders and neck. Ms. Scotti did not request any particular kind of massage. Respondent began the massage with Ms. Scotti lying on her stomach. Respondent massaged her neck, shoulders, and worked down her back. Respondent used and applied a lotion to Ms. Scotti's body during the massage. Respondent then proceeded to massage Ms. Scotti's arms and legs, working his way back to her inner thighs and crotch area. While massaging her inner thighs Respondent asked Ms. Scotti why she was not indicating her enjoyment of the massage. At this point Ms. Scotti was becoming increasingly uncomfortable and concerned; however, due to her apprehension and her inexperience with a licensed massage therapist Ms. Scotti did not express her concern, or otherwise stop the massage. Respondent then placed his hands inside Ms. Scotti's underwear and massaged her buttocks. Respondent turned respondent over on her back, and massaged her neck and shoulders. Respondent then uncovered and with one hand massaged Ms. Scotti's breasts, and with the other hand digitally penetrated Ms. Scotti's vagina repeatedly. Respondent used the therapist-client relationship to engage in sexual activity with Ms. Scotti. Ms. Scotti was frightened and alarmed. Respondent attempted to remove her underwear, and she pushed him away. Respondent then inquired if Ms. Scotti had reached orgasm. She did not respond, and Respondent concluded the massage session and left the massage room. Ms. Scotti remained frightened and alarmed. She dressed, left the Pasadena Wellness Center, and walked outside where her friends Audra Radvil, Bernadette Robinson, and Peg Etchison were waiting for her. At this time Ms. Scotti appeared distraught. She began crying and informed her friends what had occurred. Her friends observed a law enforcement officer in the parking lot, and approached the officer and related the incident. A second officer, Deputy Sheriff Craig Bornstein, was summoned to the scene. Ms. Scotti related the incident to Deputy Bornstein. Ms. Scotti was then transported to the Pinellas County Sheriff's Office where her sworn statement was taken by Detective Kenneth Kanoski. Ms. Scotti was then taken to the Pinellas County Health Unit where she underwent a sexual assault victim examination. The examination was conducted by Sylvia Franklin, an advanced registered nurse practitioner with extensive experience in conducting such examinations. The examination included drawing blood, taking vaginal and breast swabs, and obtaining saliva and urine samples. The chain of custody of the samples obtained during the examination was preserved. Detective Kanoski investigated this incident, and obtained a sample from Respondent of the lotion used by Respondent on Ms. Scotti. The lotion was Revlon Aquamarine Body Lotion. The specimens obtained during the examination of Ms. Scotti and the sample lotion obtained during the investigation by Detective Kanoski were sent for analysis to the Federal Bureau of Investigation (FBI) laboratory. The results of the FBI analysis showed the presence of isopropyl palmitate in the lotion obtained from Respondent, as well as in the vaginal and breast swab specimens taken during the examination of Ms. Scotti. Isopropyl palmitate is not a naturally occurring substance, and is not found in any product normally intended for use in the vaginal area. Isopropyl palmitate was contained in the lotion that was used by Respondent, and was introduced into Ms. Scotti's vagina as a result of Respondent's actions. Following this incident, Ms. Scotti has missed work and become withdrawn, depressed, and apprehensive toward others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Massage, enter a final order revoking Respondent's license to practice massage therapy. DONE and ORDERED this 15th day of October, 1996, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Robert W. Ivany 762 15th Avenue South St. Petersburg, Florida 33701 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anna Polk, Executive Director Board of Massage Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether the Respondent, a licensed massage therapist, violated section 480.046(1)(c), Florida Statutes (2015),1/ by pleading nolo contendere to one count of prostitution; whether she violated section 456.072(1)(x), Florida Statutes, by failing to report the plea to the Board of Massage Therapy within 30 days, as alleged in the Administrative Complaint filed by the Petitioner; and, if so, the appropriate penalty.
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of massage therapy in Florida under section 20.43 and chapters 456 and 480, Florida Statutes (2017). At all times material to the Administrative Complaint, the Respondent was licensed to practice massage therapy in Florida, having been issued license number MA 76935 by the Board of Massage Therapy. On January 14, 2016, the Respondent entered a plea of nolo contendere in case 15-CM-019206-A in Hillsborough County, Florida, to one count of prostitution in violation of section 796.07(2)(e), Florida Statutes (2015), a second-degree misdemeanor. Adjudication was withheld, and the Respondent was required to pay $270 in court costs. The Respondent did not report her plea in that case to the Board of Massage Therapy within 30 days of entering the plea. The Respondent stipulated that the crime of prostitution is directly related to the practice of massage therapy, and that offering to perform a sexual act on a massage client during the course of a massage by a licensed massage therapist is outside the scope of the practice of massage therapy. Despite her nolo contendere plea, the Respondent testified in this case that she was not guilty of prostitution. She also testified that she entered the plea without fully understanding its meaning and consequences, and without legal counsel, and that she would not have entered the plea had she known its meanings and consequences. She introduced no other evidence to corroborate or support her claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: finding the Respondent guilty of violating section 480.046(1)(c) and section 456.072(1)(x); fining her $1,000; revoking her license to practice massage therapy; and awarding costs of investigation and prosecution of this matter to the Petitioner. DONE AND ENTERED this 29th day of August, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2017.
The Issue The issues presented in this case are whether Respondent has violated the provisions of chapters 456 and 480, Florida Statutes, as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The following findings of fact are based on the testimony, evidence admitted at the formal hearing, and the agreed facts in the pre-hearing stipulation. The Department is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43, Florida Statutes, and chapters 456 and 480. At all times material to the allegations in this case, Respondent was licensed to practice as a massage therapist in the State of Florida, having been issued license number MA 79509. At all times material to the allegations in this matter, Respondent was employed as a massage therapist at Daytona College, in Daytona Beach, Florida. Respondent’s address of record is 10 Spanish Pine Way, Ormond Beach, Florida 32174. S.W. is a licensed mental health counselor who has been licensed for approximately 22 years. She resides in Clermont, Florida, which is where she lived at the time of the massage. In July 2017, S.W. and C.W., her 23-year-old daughter, traveled to the Daytona Beach area to visit S.W.’s elderly mother. On July 19, 2017, S.W. and C.W. went to Daytona College, for the first time, for a massage. Upon arriving at the school, they were greeted by the receptionist. S.W. and C.W. were scheduled for 80-minute massages to take place at 3:30 p.m. However, the ladies arrived ten minutes late, so the massages began late. Upon arrival, the ladies were asked whether they needed to use the restroom, which they did. After using the restroom, the ladies were taken to the massage area for their services. S.W. selected the male massage therapist based on her past positive experiences with male therapists. S.W. had received a number of massages in the past, including massages by men. She allowed her daughter to be scheduled with the female massage therapist because she believed her daughter preferred a woman. S.W. was scheduled for a massage with Respondent, and C.W. was scheduled with Elizabeth Branson. Respondent escorted S.W. to the massage room first. Ms. Branson escorted C.W. to the room a few minutes later. As Respondent escorted S.W. to the massage room, S.W. described the areas in which she wanted special attention, including her neck, shoulders, scalp, and feet. Respondent asked S.W. whether she needed massage in the sciatic area. S.W. had problems in the sciatic area, so she consented to have the area massaged. The common room where massages occurred at Daytona College contained eight massage tables separated by curtains. Respondent took S.W. into the massage room and instructed her to undress to her comfort level. Respondent left the room while S.W. undressed down to her underwear. When Respondent reentered the room, S.W. was draped with a sheet. Respondent tucked the drape into S.W.’s underwear and lowered it onto her buttocks. A short time later, S.W. could hear her daughter in the area near her, but she could not see her. C.W. whispered to S.W. to let her know she was in the room. At some point, S.W. heard her daughter exit the room. C.W. finished her massage before S.W., even though S.W.’s service began before C.W.’s. C.W. recalled that her mother was unusually quiet during the massage instead of being “chatty,” as she normally would be. C.W. waited in the hallway outside the massage room for four or five minutes for S.W.’s massage to finish. After S.W. came out of the massage room, C.W. immediately noticed that something was wrong. When S.W. exited the room, she was “wired” and not relaxed, as she would normally appear after a massage. C.W. described her as appearing nervous and agitated. C.W. could tell that something was wrong, but S.W. did not say anything at that time. The two ladies walked to the front desk. As was her routine, S.W. paid for both massages and left a $10 tip. She did not make a complaint regarding the massage with the receptionist before leaving the school. Concerned regarding her mother’s behavior, C.W. asked S.W. what happened. S.W. stated that something weird happened. The ladies left the school and began driving to their destination. S.W. continued to be upset and ultimately, began crying. She was so upset that initially, she could not articulate what occurred. S.W. ultimately told C.W. that Respondent had placed his hand under her underwear and touched her clitoris. S.W. contacted her friend Mike, a law enforcement officer. S.W. explained to Mike what happened, and he suggested that she contact the police to report what happened to her. S.W. and C.W. called the police and requested that an officer meet the ladies at Daytona College. They also contacted the school and advised them that S.W. had been inappropriately touched during her massage. They arrived back at the school approximately 20 minutes later. The officer arrived shortly after S.W. and C.W. The officer interviewed S.W. and she reported to him that while massaging her thighs, Respondent “grazed” her vaginal area with his finger. S.W. also reported that Respondent touched her clitoris with his finger. S.W. declined to pursue criminal charges and stated she would file a complaint with the Department. However, she expressed that she wanted to ensure there was a record of the incident so another woman would not have the same experience. On or about July 26, 2017, one week later, S.W. filed a complaint with the Department of Health. S.W. submitted a typewritten statement regarding the events involving Respondent. S.W. related that at the beginning of the massage, she gave Respondent permission to pull down her underwear and tuck in the drape. She stated that toward the end of the massage, Respondent “grazed” her vagina outside her underwear. He then placed his finger under her underwear and began massaging her clitoris for a couple of seconds. She stated that she grabbed Respondent’s hand and pushed it away. In response, Respondent abruptly told S.W. that the massage was done. In addition to the report to the police and the Department, S.W. also reported the incident to the school administrators, Dr. Ali and Mr. Brooks. Dr. Ali met with S.W. and C.W. when they returned to the school. Dr. Ali described S.W. as appearing embarrassed, subdued, and uncomfortable. Mr. Brooks was also present during the meeting. He was called to campus after he received a report that something inappropriate happened. He observed that S.W. appeared upset. Although there was no expert offered to testify in this matter, Chris Brooks, LMT, provided insight regarding the type of massage provided to S.W. He explained the difference between sensualized touch and sexualized touch. A sensualized touch is not uncommon in massage. On the other hand, sexualized touch is used to evoke sexual pleasure. At hearing, S.W. was clear and unwavering in her recollection of the events involving Respondent touching her vaginal area. S.W. appeared anxious, uncomfortable, and her voice cracked when she testified that Respondent moved her underwear and touched her vaginal area. Specifically, she testified that Respondent grazed her vagina on top of the front of her underwear. She was in such shock that it happened she could not say anything. Respondent then put a bare finger underneath her underwear and began massaging her clitoris. She still could not speak, so she quickly grabbed his hand and pushed it away. Consistent with her statement to the police officer and her written statement, she credibly testified that Respondent touched her vaginal area with his finger. At hearing, Respondent denied touching S.W.’s vagina during the massage. He also denied rubbing her clitoris. Mr. Brooks, who is personally and professionally acquainted with Respondent, testified that Respondent seemed shocked to learn of S.W.’s complaint. Respondent testified that he draped S.W.’s legs in such a way that it caused the draping to “bunch” between the area massaged and the genitalia. Respondent argues that S.W. could not determine whether the draping touched her genitals when Respondent massaged her legs. However, when pressed on this point, S.W. unequivocally testified that she was certain it was Respondent’s finger that touched her clitoris. Respondent had no prior complaints of inappropriate touching before S.W.’s complaint. Although Mr. Brooks asked him about the complaint on the date of the incident, there was no evidence offered at hearing that Respondent was formally interviewed by the school administration. However, Respondent was terminated from his job at Daytona College based on S.W.’s complaint. Respondent was also not interviewed by the police officer investigating the complaint. Respondent was not charged with a crime. Respondent has no prior disciplinary action involving his license to practice massage therapy. The evidence demonstrates that Respondent crossed the boundaries of appropriate massage into sexual misconduct when he massaged S.W.’s clitoris with his finger. While Respondent’s testimony seemed sincere, S.W. was more persuasive. Based on the totality of the evidence presented at hearing, there is clear and convincing evidence that Respondent touched S.W.’s vaginal area or clitoris with his finger. The placement of a massage therapist’s finger on the vaginal area or clitoris of a patient is outside the scope of the professional practice of massage therapy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding: Respondent guilty of violating sections 480.046(1)(p) and 480.0485 as further defined in rule 64B7-26.010; Imposing a fine of $2,500; and Revoking Respondent’s license to practice massage therapy. DONE AND ENTERED this 5th day of April, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2019.
The Issue The issues in both cases is whether the respondents violated section 480.046(1)(o), Florida Statutes (2012), which prohibits a violation of any provision within chapter 480 or any rule adopted pursuant to chapter 480, and, if so, what penalty should be imposed. In DOAH Case 14-2552PL, the specific issue is whether Respondent Hong Tang (Respondent Tang) violated section 480.0485 by using the massage therapist-patient relationship to induce or attempt to induce patients to engage in sexual activity outside the scope of the practice of massage therapy. In DOAH Case 14-2551, the specific issue is whether Respondent Tang owned and practiced massage therapy at Respondent Hong Tang Long Life Therapy Massage (HTLLTM) and whether Respondent Tang violated Florida Administrative Code Rule 64B7-26.010(2) by engaging in, or attempting to engage in, sexual activity, indirectly or directly, within the massage establishment and outside the scope of her practice of massage therapy.
Findings Of Fact Respondents hold Florida massage therapy licenses. At all material times, Respondent Tang, a 50-year-old female who was born in China and moved to the United States in 2008, owned and performed massage therapy at Respondent HTLLTM. In May 2013, an advertisement appeared in backpage.com with the telephone number and address of Respondent HTLLTM, although the ad named neither respondent. The ad described massage services and prices and contained three photographs, but neither the text nor the photographs contained any sexual content or promise of sexual activity. On August 22, 2013, at about 10:00 a.m., a deputy sheriff of the Palm Beach County Sheriff's Office telephoned Respondent HTLLTM and spoke with Respondent Tang about obtaining a massage. There is no indication of any sexual content in this brief conversation. Shortly after concluding his conversation with Respondent Tang, the deputy sheriff, who was dressed in casual clothes, drove to Respondent HTLLTM, where he entered the front door, posing as a customer. No one else was present in the establishment except Respondent Tang, who invited the deputy into a massage room. Nothing in the massage room indicated the availability of sexual activity. In the corner of the room was a basket. The parties disputed whether the basket contained sexual aids. It is unnecessary to determine the nature of the basket's contents because the deputy testified that he saw no sexual aids on entering the massage room and the contents of the basket were not visible unless someone stood beside the basket and looked down. Once they were in the massage room, the deputy and Respondent Tang negotiated a price for a massage, which was $50 for one half-hour. The deputy asked if the massage was "full service." This is the first reference to sexual activity in any conversation between the deputy and Respondent Tang. Respondent Tang responded with a hand motion, in which she formed a circle with her hand while moving it up and down, indicating by gesture that she would manually masturbate the deputy's penis. Respondent Tang did not verbally describe the service, but said that the additional cost would be $30. Signaling his intent to purchase a massage with masturbation of his penis, the deputy offered Respondent Tang $80 in the form of four $20 bills. After Respondent Tang accepted the payment, the deputy excused himself on some pretext, allowing other law enforcement officers to enter the establishment and execute a search warrant. Manual masturbation of the deputy's penis would have been outside the scope of practice of massage.
Recommendation It is RECOMMENDED that the Board of Massage Therapy enter a final order finding Respondent Hong Tang and Respondent Hong Tang Long Life Therapy Massage not guilty of the allegations contained in the administrative complaints. DONE AND ENTERED this 31st day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 31st day of December, 2014.
The Issue The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy in violation of section 480.0485, Florida Statutes, or in the practice of a health profession, in violation of section 456.072(1)(v), Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Department, Board of Massage Therapy, 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, Ms. Li was a licensed massage therapist in the state of Florida, holding license number MA82765. Ms. Li's current address of record is 620 East Colonial Drive, Orlando, Florida 32803. Ms. Li's native language is Mandarin Chinese. She came to the United States from China in 2014, and her ability to communicate in English is limited. On November 16, 2016, Ms. Li was employed by Empire Day Spa (Empire), located in Lake Worth, Florida. On that day, Detective Avidon, as part of the City of Lake Worth Community Policing Street Crimes Unit, was participating in an ongoing investigation into possible prostitution. He entered Empire in an undercover capacity and was greeted by Ms. Li. Detective Avidon asked her how much it would be for a one-hour massage. Ms. Li advised him it cost $70. Detective Avidon asked Ms. Li if she would give him a "full service" massage, which, from his experience in investigating vice, he understood to be a phrase commonly used to refer to the performance of sexual acts during or after a massage. As he testified, Ms. Li took Detective Avidon into an enclosed hallway to the left of the counter, where she told him he would have to pay extra money. Ms. Li then led him to a massage room. Later in the massage room, Detective Avidon asked her, "how much?" Ms. Li came over to him, rubbed his upper thigh just below the genital area, gestured as if she were performing masturbation, and asked him, "you want?" As he testified, Detective Avidon, using a slang term for oral sex, then asked Ms. Li, "How much for a blow job?" Ms. Li answered, "You tell me." Detective Avidon then asked, "Sixty?" Ms. Li responded, "One hundred." Detective Avidon confirmed, "One hundred dollars?" Ms. Li said, "Yes." Detective Avidon told Ms. Li he needed to put his phone and wallet in his car and exited Empire. Detectives already on scene then entered Empire along with Detective Avidon. Ms. Li was positively identified by Detective Avidon, and she was placed into custody. Ms. Li was later formally identified using the Florida Driver's license in her possession. Detective Avidon shortly thereafter completed the probable cause affidavit, which later was introduced into evidence to supplement and explain his live testimony at hearing. Ms. Li's contrary testimony, to the effect that while she was in the massage room with Detective Avidon, she did not agree to engage in sexual activity, was not credible and is rejected. While it is accepted that Ms. Li's ability to communicate in English is limited, the credible testimony of Detective Avidon as to all the circumstances surrounding their communications makes it very clear that Ms. Li completely understood that she was agreeing to engage in sexual activity in exchange for payment. Ms. Li's actions on November 16, 2016, were outside the scope of practice of massage therapy. Ms. Li used the massage therapist-patient relationship to attempt to engage Detective Avidon in sexual activity. Ms. Li engaged in sexual misconduct in the practice of massage therapy. Ms. 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 Department of Health, Board of Massage Therapy, enter a final order finding Ms. Shufang Li in violation of sections 480.0485 and 456.072(1)(v), Florida Statutes, constituting grounds for discipline under section 480.046(1)(p); imposing a fine of $2,500; revoking her license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 18th day of May, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2018. COPIES FURNISHED: Gennaro Cariglio, Jr., Esquire Law Office of Gennaro Cariglio, Jr. Penthouse 701 8101 Biscayne Boulevard Miami, Florida 33138 (eServed) Lealand L. McCharen, Esquire Gerald C. Henley, II, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Kama Monroe, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed)
The Issue Did Respondent, Cameron Kellogg, L.M.T., attempt to induce patient, L.R.A., to engage in sexual activity as prohibited by section 480.0485, Florida Statutes (2018)?1/
Findings Of Fact Section 20.43 and chapters 456 and 480, Florida Statutes (2019), charge the Florida Department of Health and the Board with licensing and regulating massage therapy. At all times material to the allegations of the Administrative Complaint, Mr. Kellogg was a licensed massage therapist. In August of 2018, Mr. Kellogg was providing massage therapy services for guests of the Opal Sands Resort and Spa (Opal Sands). L.R.A. and her husband G.A. were guests at Opal Sands. August 30, 2018, was their last full day there. L.R.A. scheduled a massage for that day. Before the scheduled time, L.R.A. and G.A. were relaxing at the pool. They had a drink at the pool. There is no credible evidence indicating that either became intoxicated. L.R.A. left the pool to attend her scheduled massage. G.A. stayed at the pool to wait for her. When L.R.A. arrived at the spa, she was directed to a changing area. She removed her clothes and bra, leaving on her underwear, and put on a robe supplied by the spa. Afterwards she met Mr. Kellogg in the waiting room, and he escorted her to the massage room. He left the room. She removed the robe and laid face down on the table covered with a drape. The massage began uneventfully. Midway through the massage L.R.A. turned over at Mr. Kellogg's request. This is typical in massages. During the massage, as is normal, L.R.A. became more and more relaxed, to the point of drowsiness. At the end of the massage period, Mr. Kellogg was standing at L.R.A.'s head massaging her shoulders and clavicle. He slowly moved his hands beneath the drape and began groping and fondling L.R.A.'s breasts. Then he pinched her nipples. L.R.A. was shocked and astonished. Naked and vulnerable, she was speechless and embarrassed. Then Mr. Kellogg asked her if she wanted him to perform oral sex saying, "Do you want me to eat your p---y?" Still speechless and shocked, L.R.A. shook her head no several times vigorously. Mr. Kellogg said "OK" and left the room. The actions described in findings six and seven are not part of an appropriate massage and were not invited or consented to by L.R.A. in any way. Mr. Kellogg violated the massage therapist-patient relationship and used it to attempt to induce L.R.A. in sexual activity. His actions were also sexual activity engaged in through direct contact with L.R.A. Still in shock, L.R.A. dressed, went to the front desk, and signed to charge the massage to her room account, leaving a $5.00 tip. She returned to the pool to meet her husband. She was in emotional distress and trying to decide how to tell her husband of Mr. Kellogg's assault. After meeting and talking a while at the pool, L.R.A. and G.A. went to their room to shower. Afterwards they left the resort and walked to a nearby souvenir and ice cream stand. After leaving the stand, L.R.A. asked her husband to sit down because she had something to tell him. This was only two hours after Mr. Kellogg groped her. During that time L.R.A. was processing her reactions and shock and thinking about how to tell her husband. She recounted the events to G.A., but did not repeat Mr. Kellogg's crass language, at first. She did not tell him about Mr. Kellogg pinching her nipples until a few weeks later. She thought those details would cause too much stress and anger on top of the other events. L.R.A. and G.A. decided that reporting Mr. Kellogg's behavior to the resort management was important and returned to Opal Sands. They told the front desk attendant that they needed to speak to the manager about something that happened in the spa. The attendant asked if they wanted the manager to come to their room. They said yes. The spa manager, Lexandra Gheradini, came to the room of L.R.A. and G.A. They told her about Mr. Kellogg's actions and request to perform oral sex. Ms. Gheradini apologized. But she did not ask them to complete any paperwork to document the assault. The resort only refunded the charge for the massage. L.R.A. reported Mr. Kellogg's actions within a reasonable period of time given her shock and embarrassment. At first she did not contact the police because of her embarrassment. Also, she and G.A. were preparing to leave the next day to return to their home in Pennsylvania. In Pennsylvania, L.R.A. told her friend K.E. about the incident. K.E. encouraged L.R.A. to report the incident to the police. L.R.A. reported it to the Clearwater police. She also reported the incident to the Florida Department of Health. The videotaped depositions provided clear and distinct views of the faces of L.R.A. and G.A. while testifying. Their facial expressions, body language, and reactions to Mr. Kellogg's questions made their testimony compelling and persuasive. Mr. Kellogg denied touching L.R.A.'s breasts. Mr. Kellogg, although he testified in person, was not persuasive. The majority of his testimony was argument about why L.R.A.'s testimony should not be accepted and complaints about how the charges have affected him. His denials were brief and unpersuasive. In addition, Mr. Kellogg testified that "I asked to eat her p---y." He minimizes this as "saying something stupid." Mr. Kellogg argues that L.R.A., G.A., and K.E. should not be believed because, when testifying a year after events, they do not remember some details. The argument is not persuasive. Forgetting some details peripheral to a shocking event a year afterwards is not unusual. The memories of L.R.A., G.A., and K.E. are distinct, clear, and consistent on the important facts. In addition, L.R.A.'s prompt reports of the incident to G.A. and the spa manager enhance her credibility. So too does the consistency of her description of events to K.E. Mr. Kellogg's testimony corroborates half of L.R.A.'s account. The record contains no evidence suggesting any motive for L.R.A. to fabricate her account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Florida Department of Health, Board of Massage Therapy, enter a final order: Finding that Respondent, Cameron Kellogg, LMT, violated section 480.0485, Florida Statutes. Revoking the license of Cameron Kellogg, L.M.T. Imposing a fine of $2,500.00 on Cameron Kellogg, L.M.T. Assessing costs of the investigation and prosecution of this case against Cameron Kellogg, L.M.T.,to be paid to Petitioner, Florida Department of Health. DONE AND ENTERED this 30th day of September, 2019, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2019.
The Issue The issues to be determined in this case are whether the Respondent, Lauren Dillman-Bell, obtained her Florida license to practice massage therapy through fraud or error, in violation of section 456.072(1)(h), Florida Statutes (2009), or made misleading, untrue, deceptive, or fraudulent representations on her application for licensure, in violation of section 456.072(1)(w), both of which constitute violations of section 480.046(1)(o); and if so, the appropriate sanction. (Unless otherwise indicated, citations to the Florida Statutes and rules of the Florida Administrative Code refer to the versions in effect when the Respondent’s license was issued on July 1, 2009.)
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43, and chapters 456 and 480, Florida Statutes (2016). At all times material to the Administrative Complaint, the Respondent was licensed to practice massage therapy in the State of Florida, having been issued license number MA 56509 on or about July 1, 2009. When the Respondent applied for licensure in June 2009, she answered “no” to a question whether she had “ever been convicted of, or entered a plea of guilty, nolo contendere, or no contest to a crime in any jurisdiction other than a minor traffic offense.” When the Respondent’s license was issued, the Petitioner was unaware that the answer to the question on the application should have been “yes.” This was not brought to the Petitioner’s attention until June 2013. The Petitioner investigated, and the Administrative Complaint was filed. It is clear from the evidence presented at the hearing that the Respondent entered the following pleas in the District Court of Oklahoma County, Oklahoma, in December 2005: guilty to one count of possession of a controlled, dangerous substance with intent to distribute; guilty to one count of possession of a controlled, dangerous substance (methamphetamine) with intent to distribute; guilty to one count of possession of a stolen vehicle/receiving stolen property; and guilty to two counts of possession of a weapon. Although the Respondent did not appear or testify at the hearing, it can be inferred that she knew or should have known that her answer to the question on her license application about criminal convictions and guilty pleas was false. Even if the answer were unintentionally false, the Petitioner relied on it when it issued the Respondent’s license without conducting any investigation into the Respondent’s fitness for licensure notwithstanding the guilty pleas. (It also could be inferred from the Respondent’s failure to pursue her request for a hearing, and her failure to provide effective contact information so as to receive notices regarding the case, that she has withdrawn and waived her disputes as to the facts alleged in the Administrative Complaint.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued: (1) finding that the Respondent violated section 480.046(1)(o) by violating sections 456.072(h) and (w); and (2) revoking her massage therapy license. DONE AND ENTERED this 30th day of May, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2017. COPIES FURNISHED: Lauren Dillman-Bell, L.M.T. 5033 Lords Avenue Sarasota, Florida 34231 Lealand L. McCharen, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Jaquetta Johnson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Claudia Kemp, JD, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed)
