The Issue The issues in this case are whether Respondent, Mehdi Safdari, L.M.T., committed the offenses alleged in the Administrative Complaint issued August 8, 2001, and, if so, to what extent should his license be disciplined or should he be otherwise penalized.
Findings Of Fact Petitioner, the Department of Health, Board of Massage Therapy (hereinafter referred to as the "Board") is the state agency charged with the authority and duty to regulate the practice of massage therapy in the State of Florida. Pursuant to Subsection 20.43(3)(g), Florida Statutes, the Department of Health has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Board, as appropriate. Respondent, Mehdi Safdari, was a licensed massage therapist in the State of Florida at all times material to the allegations in the Administrative Complaint. Respondent's license number is MA 11488. He was originally certified on January 14, 1991; his current license will expire on August 31, 2003. The complainant, R.C., a 44-year-old female who has an associate's degree in social services from Hesston College in Hesston, Kansas, is a certified activities director. At all times material to the allegations in this matter, she was employed as an activities director at an assisted living facility, Altera Wynwood. On May 4, 2000, Respondent and another person presented an educational program on occupational therapy, physical therapy, and speech and massage therapy for the residents of Altera Wynwood. Incidental to the program, Respondent brought his massage chair and performed massages at the facility. On that day, Respondent performed a chair massage on R.C. R.C. had not known Respondent prior to that day. R.C. advised Respondent that she had been involved in an automobile accident and had injured three discs in her neck. Respondent suggested that she allow him to perform massage therapy on her to alleviate discomfort incidental to the neck injury. On May 15, 2000, R.C. presented herself to Respondent's place of employment for massage therapy. After disrobing, R.C. dressed herself in a hospital gown and towel which was provided. She wore the towel like a diaper. Respondent massaged R.C.'s head and neck and around her breasts. R.C. testified that Respondent "touched her genital area in a very, very subtle manner, almost as if it was an accident." The remainder of the "full body" massage consisted largely of leg stretching. On May 17, 2000, R.C. presented herself for a second massage. On this occasion she found no gown, but was provided a sheet and towel. During this massage, Respondent pulled down the sheet and exposed R.C.'s breasts without her consent. During the massage, Respondent touched R.C.'s breasts, but she was uncertain as to whether the touching was "out of line." Her next massage was on May 19, 2000. She again found only a sheet and towel in which to dress. During this massage, Respondent got up on the massage table and straddled R.C., sitting on her hips and buttocks with his legs on each side of her body. She advised him that the pressure of him sitting on her buttocks was causing her pain in the back, so he got off. At all times she was covered by the sheet and had the towel between her legs. Respondent did not advise her that he was going to straddle her nor did he have her permission to do so. On her fourth and final visit, she dressed herself in the sheet that was provided, but left her underpants on because she was having a menstrual period. After massaging R.C.'s upper body, Respondent turned her over on her stomach. He then got up on the massage table, straddling R.C., and pulled her underwear back. He then unzipped the zipper of his trousers and placed his penis between R.C.'s buttocks. Respondent was leaning up against R.C. and pumping against her. She advised Respondent that he was hurting her and, as a result, he got off. He then told her to lie on her side and face the wall; he then got up on the massage table beside her and with his full body began pushing up against her from behind. She was afraid she was going to be raped and was afraid to say anything. Respondent remained behind R.C. for a short period of time and then left. R.C. went to the bathroom and washed herself but did not discover any semen on herself. She then left, seeking to avoid Respondent. R.C. believed that she had been sexually assaulted and filed a report with an appropriate law enforcement agency. R.C.'s testimony in this matter was clear, consistent, and credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health, Board of Massage Therapy, finding that Mehdi Safdari violated Rule 64B7-26.010(1) and (3), Florida Administrative Code, Section 480.0485, Florida Statutes, and Subsection 455.624(1)(u), Florida Statutes (1999), as alleged in the Administrative Complaint issued on August 8, 2001; it is further RECOMMENDED that the Department of Health, Board of Massage Therapy, suspend Mehdi Safdari's license to practice massage therapy for a period of three (3) years, during which time he must present himself for examination and/or treatment by a psychiatrist licensed to practice medicine in the State of Florida, who, upon conclusion of his examination and/or treatment, shall opine to the Board of Massage Therapy that Respondent is not a threat to his patients as a prerequisite to Respondent returning to the practice of massage therapy; impose an administrative fine against Respondent of $3,000; and assess against Respondent the costs of investigating and prosecuting this case. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 31st day of May, 2002. COPIES FURNISHED: Scott L. Richardson, Esquire 126 East Jefferson Street Orlando, Florida 32801 Ruby Seymour-Barr, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 39 Tallahassee, Florida 32308 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The Respondent, Barbara Dial, is a Florida licensed masseur, having been issued license number MA 0004161. Her license was inactive from January 1, 1983, through April 29, 1987. During approximately the week ending December 15, 1985, while operating a licensed massage establishment she had acquired, the Respondent was "trading" massages with licensed masseurs operating at the establishment, i.e., she would give a massage in return for a massage, free of charge. Normally, a massage would cost approximately $35.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Massage: (1) hold the Respondent, Barbara Dial, guilty under Counts Four, Five and Six of the Administrative Code; (2) dismiss Counts One, Two and Three of the Administrative Complaint; and (3) impose on the Respondent a fine in the amount of $100. RECOMMENDED this 12th day of April, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1988. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Barbara Dial 1012 Dassow Court Alpharetta, Georgia 30201 Linda Biedermann Executive Director Board of Massage Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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, and Florida Administrative Code Chapters 64B7-26, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to Section 20.43 and Chapters 456 and 480, Florida Statutes. At all times material to the allegations in this case, Respondent was an applicant for or licensed as a massage therapist in the State of Florida, having been issued license number MA52091 on or about December 7, 2007. Respondent's Application for Licensure Respondent applied for a license as a massage therapist in July 2007. His application for licensure was signed and submitted to the Department on or about July 12, 2007. The application includes the following question: 20. Have you 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? You must include all misdemeanors and felonies, even if the court withheld adjudication so that you would not have a record of conviction. Driving under the influence or driving while impaired is not a minor traffic offense for purposes of this question. Respondent answered "no" to question 20 quoted above. At the end of the application is a place for a picture of the applicant and a section labeled "Affidavit of Applicant" which the applicant completes and signs. The affidavit states: AFFIDAVIT OF APPLICANT: I, Marcus McCastler, affirm that I am the person referred to in the foregoing massage therapy licensure application, and that the attached photograph is a true likeness of myself. I understand that it is my duty and responsibility as an applicant for licensure to supplement my application after it has been submitted if and when any material change in circumstances or conditions occur which might affect the Board's decision concerning my eligibility for examination or licensure. Such supplement is required by Chapter 456.013(1), F.S. Failure to do so may result in disciplinary action by the Board including denial of licensure. I have carefully read the questions in the foregoing application and have answered them completely, without reservation of any kind, and I declare that my answers and all statements made by me herein and in support of this application are true and correct. Should I furnish any false information on or in support of this application, I understand that such action shall constitute cause for denial, suspension, or revocation of any license to practice in the state of Florida in the profession for which I am applying. I have read, understand, and agree to comply with the statutes and rules applicable to the practice of my profession in Florida. Respondent signed and dated his application immediately following the declaration quoted above. The answer to question number 20 on his application was false. On August 28, 2002, in Case No. 2001-CT-30030 (Fourth Judicial Circuit, Duval County, Florida), Respondent pleaded nolo contendere to the second-degree misdemeanor of driving on a suspended or revoked license, in violation of Section 322.34(2), Florida Statutes. Adjudication was withheld and court costs were paid. On April 6, 2004, in Case No. 2003-CT-031996-AXXX (Fourth Judicial Circuit, Duval County, Florida), Respondent pleaded nolo contendere to driving with no valid driver's license, in violation of Section 322.03, Florida Statutes. Adjudication was withheld and court costs paid. 11. On December 15, 2004, in Case No. 2004-MM-041686 (Fourth Judicial Circuit, Duval County, Florida), Respondent pleaded nolo contendere to possession of less than 20 grams of cannabis, a first-degree misdemeanor, in violation of Section 893.13(6), Florid Statutes. Adjudication of guilt was withheld and court costs paid. On December 18, 2006, Respondent pleaded nolo contendere to the misdemeanor of permitting an unauthorized minor to drive, in violation of Section 322.35, Florida Statutes. In Case No. 2006-CT-004817 (First Judicial Circuit, Escambia County, Florida), Respondent was adjudicated guilty, fined $200.00, and ordered to pay court costs. On February 14, 2007, Respondent pleaded nolo contendere to possession of less than 20 grams of cannabis, a first-degree misdemeanor. In Case No. 07-00255-MM-MA (Fourth Judicial Circuit, Clay County, Florida), adjudication was withheld and Respondent was ordered to pay $205 in costs. On July 3, 2008, Respondent was arrested and charged with simple battery, in violation of Section 784.03(1)(b), Florida Statutes, a first-degree misdemeanor. On July 4, 2008, Respondent pleaded nolo contendere to the lesser included offense of fighting. In Case No. 2008-MO-18280 (Fourth Judicial Circuit, Duval County, Florida), the Court withheld adjudication and imposed a fine of $250.00. All of the offenses listed above with the exception of the offense described in paragraph 14 occurred before Respondent signed the application for a license as a massage therapist. Respondent claims that he answered question 20 no "reluctantly" on advice of a lawyer at his school. Respondent's claim is not credible. The July 6, 2008 Incident In July 2008, Respondent was employed as a massage therapist by Summit Regency, d/b/a Massage Envy, in Jacksonville, Florida. On or about July 6, 2008, Respondent gave a massage to A.M., a female client of Massage Envy. A.M. has been a licensed R.N. since 1979 and works as a public health nurse at the Duval County Health Department. A.M. had received massages before and Respondent had given her a massage on a previous occasion. On this particular day, she came to Massage Envy with her husband, W.M., who was also getting a massage. Both were using a prepaid plan whereby they received a set number of massages over a defined period of time. A.M.'s massage was scheduled for and took place at approximately 2:00 p.m. Upon entering the room, A.M. was provided with a sheet/drape and Respondent left the room while A.M. undressed, got on the table face down and covered herself with the drape. A.M. testified that, while she was face down on the table and during the massage, Respondent removed the drape, leaving her completely exposed. She testified that about 20 minutes into the massage, Respondent inserted his bare finger into her rectum and pushed his finger to the side of the rectum without her consent and without telling A.M. what he was doing or why. According to A.M., she did not say anything and did not attempt to get down from the table because she was in shock and frightened, and mortified at what Respondent had done. She did not ask him to return the drape until he instructed her to turn over. At that point, he handed her the drape and she turned over onto her back. He massaged her arms and then the massage was over. Respondent, on the other hand, denied removing the drape from A.M.'s body during the massage and adamantly denied inserting his finger into her rectum. A.M. and her husband left Massage Envy after their massages and returned home. A.M. did not tell her husband about the incident until they arrived home, at which time she told him that Respondent had "stuck his finger up her butt." W.M. advised her to report the matter to the police and to call the owner of Massage Envy, which she did. With respect to the owner of Massage Envy, she reported what she believed Respondent had done, and asked for her money back. Her money was refunded to her, and she was provided a copy of the complaint paperwork to file a complaint with the Department of Health. A.M. also reported the incident to the Jacksonville Police Department at approximately 7:00 p.m. that evening, but did not wish to file charges against Respondent. She said she simply wanted to "report it so that it would be on record." She also went to her family physician the next day because her hemorrhoids were bleeding, which she attributed to the incident with Respondent. Respondent was not charged with any crime as a result of events taking place July 6, 2008. However, he was terminated from his employment based on A.M.'s complaint. After careful review of all of the evidence presented at hearing, there is not clear and convincing evidence that Respondent removed the drape inappropriately during the exam or that he intentionally inserted his finger into A.M.'s rectum.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Board of Massage Therapy enter a Final Order finding that Counts I and II of the Administrative Complaint were not proven by clear and convincing evidence; that Respondent committed the acts charged in Counts III and IV of the Administrative Complaint and by doing so, violated Sections 456.072(1)(h) and (m); 480.046(1)(o); and 480.047(1)(f), Florida Statutes (2007); and revoking his license to practice massage therapy. DONE AND ENTERED this 18th day of October, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2010.
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 are whether the Respondent, a licensed massage therapist, violated section 480.046(1)(c), Florida Statutes (2010),1/ by pleading nolo contendere to four separate cases of prostitution; whether, she violated section 456.072(1)(x), Florida Statutes, by failing to report the pleas 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 58567 by the Board of Massage Therapy. On October 28, 2010, the Respondent entered pleas of nolo contendere to the crime of prostitution in four separate cases in Hillsborough County, Florida, which are identified by case numbers 10-CM-011030, 10-CM-011031, 10-CM-011032, and 10- CM-011417. The Respondent did not report any of her pleas in those cases to the Board of Massage Therapy within 30 days of entering the plea. When the Respondent pled nolo contendere to the prostitution charges, adjudications were withheld and the nolo contendere pleas were held in abeyance pending the successful completion of probation. The Respondent did not successfully complete her probation for any of the four cases, and the probations were terminated for non-compliance with the conditions of probation. Despite her nolo contendere pleas, the Respondent testified in this case that she was not guilty of prostitution. The Respondent stipulated that the crime of prostitution directly relates to the practice of massage therapy or to the ability to practice massage therapy. Merriam-Webster defines the term “relate” as “to show or make a connection between (two or more things).” There was direct connection between the Respondent’s practice of massage and her convictions for prostitution. The Respondent used her position as a massage therapist to offer to commit prostitution.
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 24th day of July, 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 24th day of July,2017.
The Issue Whether the Respondent, a licensed massage therapist, should be disciplined under section 480.046(1)(p), Florida Statutes (2016),1/ for sexual misconduct in the practice of massage therapy; and, if so, the appropriate discipline.
Findings Of Fact The Petitioner licenses and regulates the practice of massage therapy in Florida, including discipline of licensees who are in violation of the governing statutes and rules. The Respondent holds massage therapy license MA 80154. In March 2017, the Respondent was employed as a massage therapist at Hand and Stone Massage and Facial Spa in Brandon, Florida. On March 29, 2017, Y.B., went to Hand and Stone to use a gift card for a free massage that had been given to him by his fiancée. The Respondent approached and introduced himself to Y.B., and asked if he could help him. Y.B. told him why he was there, and the Respondent led him back to a therapy room. In the therapy room, Y.B. asked the Respondent to focus on his upper body, arms, and fingers. The Respondent had him undress and lay down on the massage table face down, covered only by a sheet. The massage proceeded without incident at first. Then, the Respondent asked for permission to massage Y.B.’s legs. Y.B. granted permission. As the massage proceeded, Y.B. closed his eyes and relaxed. When the Respondent finished massaging the back of Y.B.’s legs, he asked Y.B. to roll over onto his back. As the massage proceeded, Y.B. again closed his eyes and relaxed. After massaging Y.B.’s upper body, arms, and fingers, the Respondent asked, “May I?” Thinking the Respondent was asking if he had permission to massage the front of his legs, Y.B. said, “yes, do what you have to do.” Before Y.B. knew what was happening, the Respondent grasped Y.B.’s penis in his hand and put it in his mouth. Startled and shocked, Y.B. opened his eyes, sat up, and made the Respondent stop, saying “Whoa, whoa, whoa, what do you think you’re doing? I’m not gay.” At that point, the Respondent stopped and brought Y.B. water and a towel. What the Respondent did was very upsetting to Y.B. He was so upset and angry that he was distracted while being checked out by another employee of Hand and Stone. He unwittingly presented his gift card and answered questions. He discovered later that he not only had paid for the massage but also had given the Respondent a tip. Y.B. continued to be bothered by what happened and returned to Hand and Stone the next day to confront the Respondent and have him explain the reason for what he had done the day before. During this confrontation, the Respondent admitted to his misconduct and tried to apologize, saying “I thought we had a connection.” Y.B. continues to be affected by what the Respondent did to him. He received counseling through his employer. He still is less affectionate than he used to be, even towards his family. To this day, he still becomes anxious when reminded of the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding the Respondent guilty as charged; revoking his license; and fining him $2,500. DONE AND ENTERED this 23rd day of January, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2018.
The Issue The issues to be determined in this case are whether Respondent, Si Fang Tao, engaged in sexual misconduct in the practice of massage therapy, in violation of sections 480.046(1)(p) and 480.0485, Florida Statutes (2014-2015); and if so, what is the appropriate sanction.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43, and chapters 456 and 480, Florida Statutes (2016). At all times material to the complaint, Respondent was licensed to practice massage therapy in the state of Florida, having been issued license number MA 76085 on or about April 21, 2014. At all times material to the complaint, Respondent owned and operated Massage Connection 1 (Massage Connection), located at 11301 South Orange Blossom Trail, Suite A-209, Orlando, Florida 32837. At all times material to the complaint, Respondent was the sole massage therapist working at Massage Connection. The Metropolitan Bureau of Investigation (MBI) is a joint police task force for Orange County and Osceola County. MBI routinely investigates narcotics, vice, human trafficking, and organized crime. In June and July 2015, MBI conducted an undercover operation for suspected acts of prostitution occurring at Massage Connection. Officer Q.A. has been a deputy sheriff with the Orange County Sheriff’s Office since 2007 and was working in the Vice and Organized Crime Unit of MBI on June 12, 2015. On June 12, 2015, Officer Q.A. entered Massage Connection posing as a patient and requested a 60-minute massage from Respondent, who introduced herself as “Michelle.” Officer Q.A. paid Respondent $80.00 for the massage, and Respondent led Officer Q.A. to a massage room where Officer Q.A. disrobed completely and lay face down on the massage table. Respondent did not drape Officer Q.A.’s buttocks or genitals during the course of this massage. Respondent repeatedly touched Officer Q.A.’s inner thighs, lightly touching them with the back of her hands, palm of her hands, and fingernails. Respondent pointed to Officer Q.A.’s penis and made a hand gesture with a clenched fist moving up and down, colloquially understood to indicate manual masturbation of the penis. Respondent then told Officer Q.A., “I can massage your full body” and asked how much he would pay for this. Respondent agreed to perform the manual masturbation of Officer Q.A.’s penis for an additional $80.00 and told Officer Q.A. not to tell anyone that she was doing this. Respondent asked Officer Q.A. for the money, accepted partial payment of $50.00 from Officer Q.A., and left the room. When Respondent returned to the room, she exposed her breasts to Officer Q.A. Respondent then began massaging Officer Q.A. again and touched his penis, at which point Officer Q.A. stated he did not want to proceed with manual penile masturbation. Officer F.M. has been a law enforcement officer with the Orange County Sheriff’s Office for the past nine years and was working in the Vice and Organized Crime Unit of MBI on July 8, 2015. On July 8, 2015, Officer F.M. entered Massage Connection posing as a patient and requested a 30-minute massage from Respondent, who introduced herself as “Crystal.” Officer F.M. paid Respondent $55.00 for the massage, and Respondent led Officer F.M. to a massage room where Officer F.M. disrobed completely and lay face down on the massage table. Respondent did not drape Officer F.M.’s buttocks during the course of this massage. When Officer F.M. turned over during the massage, Respondent covered Officer F.M.’s genitals with a small towel but then placed her hand on top of Officer F.M.’s penis and asked if he wanted Respondent to massage him there. Respondent told Officer F.M. that she had a very good technique and made a hand gesture with a clenched fist moving up and down, colloquially understood to indicate manual masturbation of the penis. Respondent told Officer F.M. that she would rub him “very good.” When Officer F.M. asked Respondent for oral sex, Respondent offered to expose her breasts instead. When Officer F.M. asked if he could receive a nude massage from Respondent if he returned to Massage Connection, Respondent again offered to expose her breasts instead. Officer F.M. then asked Respondent how much the “full body massage” would cost while pointing at his penis, indicating manual masturbation of his penis. Respondent indicated that a “fully body massage” would cost an additional $40.00. When Officer F.M. told Respondent that $40.00 was too much just to “jerk [him] off,” or masturbate him, Respondent stated that she does a “good job” and people tip her $20.00 even if she does not “massage [them] there.” Officer F.M. declined, stating that “$40 for a hand job is a lot.” Respondent replied “no, it’s very good technique,” and told Officer F.M. “how about for you, $35?” Officer F.M. again declined, and the massage concluded. On July 9, 2015, both MBI Officers Q.A. and F.M. positively identified Respondent as the massage therapist that had offered to perform sexual acts on them. It is common for patients to be completely disrobed during a massage. However, massage therapists must drape the patient to maintain professional boundaries. Generally, a patient is completely draped and only the areas being massaged at that time are exposed. At the very least, appropriate draping of a patient requires draping of the buttocks and genitalia and the breasts of female patients, unless the patient gives specific informed consent to be undraped. Massaging the upper inner thigh of a patient without first obtaining informed consent is outside the scope of practice of massage therapy. Informed consent from the patient is necessary before massaging the upper inner thigh due to the sensitive nature of the area, to avoid confusion about the intent of the touch, and to maintain boundaries. If a massage therapist does not clarify this treatment, it can indicate that the massage therapist is willing to engage in sexual activity. There is no generally accepted massage therapy technique that requires massage therapists to use the back of their hands to massage the inner thigh of a patient. There is no generally accepted massage therapy technique that requires massage therapists to use their fingernails to lightly touch a patient’s inner thigh. Using fingernails to lightly touch the inner thigh of a male patient during a massage can cause sexual arousal and is not likely to be therapeutic. There is no accepted practice within the scope of massage therapy that allows massage therapists to touch or massage the penis of a patient. There is no accepted practice within the scope of massage therapy that allows massage therapists to expose their breasts to a patient. The following constituted sexual activity outside the scope of massage therapy and sexual misconduct in the practice of massage therapy: Respondent’s failure to drape Officer Q.A.’s buttocks and genitals; her exposure of her own breasts to Officer Q.A.; the light touching of Officer Q.A.’s inner thighs with the back of her hands and fingernails; the touching of Officer Q.A.’s penis; and her offering or agreeing to masturbate Officer Q.A.’s penis. The following constituted sexual activity outside the scope of massage therapy and sexual misconduct in the practice of massage therapy: Respondent’s failure to drape Officer F.M.’s buttocks; her touching of Officer F.M.’s penis; offering or agreeing to masturbate Officer F.M.’s penis; and her offering to expose her breasts to Officer F.M.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health, Board of Massage Therapy, finding that Ms. Tao violated section 480.046(1)(p), by violating section 480.0485. For these violations, it is recommended that the Board impose a $2,500 administrative fine on Respondent, revoke Respondent’s license to practice massage therapy, and require Respondent to pay the Department’s costs of investigation and prosecution of this matter. DONE AND ENTERED this 25th day of April, 2017 in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2017. COPIES FURNISHED: Carrie Beth McNamara, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Oaj S. Gilani, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Si Fang Tao 335 Rome Street San Francisco, California 94112 Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed) Claudia Kemp, JD, Executive Director Board of Massage Theraphy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-3257 (eServed)
The Issue The issues are whether the Respondent, a licensed massage therapist, violated applicable sections of the Massage Practice Act, by attempting to engage in prohibited sexual activity with a client or patient; and, if so, what discipline should be imposed.
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 (2015).1/ In 2015, the Respondent was licensed to practice massage therapy in Florida, having been issued license number MA 67956 by the Board of Massage Therapy. In November 2015, the Vice Unit of the Hillsborough County Sheriff’s Office conducted an operation to investigate a complaint that prostitution was taking place at VIP Massage (VIP), located at 5915 Memorial Highway in Tampa, which advertised “hot, beautiful, friendly Asian ladies” under the “body rub” section of advertisements on an internet website. On November 12, 2015, Detective M.D., who was working undercover, entered VIP. He was met by the Respondent, and she confirmed the appointment for a one-hour massage that he had made the day before, led him to a massage room, and collected the $60 charge. She then left the room with the money and returned after M.D. disrobed, except for his boxer shorts, and got on the massage table. The Respondent performed the hour massage in an appropriate manner and left to get M.D. some water. When she returned she asked him why he did not remove his boxer shorts. He said he was shy. She then asked if he was the police. He said, no, he was just shy. At this point, the Respondent made a hand motion indicating masturbation and asked, “do you want?” M.D. asked, “how much?” She said, “40,” meaning $40. M.D. asked if she would “suck” him, referring to oral sex. The Respondent said, “no, only,” and repeated the hand gesture for masturbation. He declined, saying that he was too shy, and that he was married. This was a pre-arranged signal for his investigative team of law enforcement officers to enter the VIP and make an arrest for prostitution. M.D. identified the Respondent to the arresting officers and explained to the Respondent that she was being arrested for prostitution. The Respondent understood the charge and loudly denied it. The Respondent again denied the charges in her testimony at the hearing. She said there was a misunderstanding between M.D. and her due to her poor command of English (and his inability to speak or understand Chinese). She said that she actually asked M.D. if he wanted an additional hour of massage and that she was referring to the charge for that when she said, “40.” Although there were some minor details of M.D.’s testimony that were inconsistent or misremembered and later corrected, his testimony as to essentially what occurred at VIP on November 12, 2015, was clear and convincing, especially since it was consistent with what was in the arrest affidavit he signed under oath that same day. The Respondent’s argument that it was all a misunderstanding due to a language barrier is rejected. She appeared to have little difficulty understanding some of the conversation between him and her regarding his massage, or understanding the criminal charge when she was arrested, and there was no mistaking the meaning of her hand gesture for masturbation. The Respondent also raised the question why she would have waited until returning with water to ask if he wanted her to masturbate him. While there is some appeal to the logic of her argument at first blush, there are a number of plausible explanations for her timing.
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 sections 480.046(1)(p), 480.0485, and 456.072(1)(v); fining her $2,500; revoking her license to practice massage therapy; and awarding costs of investigation and prosecution of this matter to the Petitioner. DONE AND ENTERED this 1st day of November, 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 1st day of November, 2017.
