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.
Findings Of Fact The Respondent, Michael John Mancuso, (the licensee), holds license number 62-0337, Series 4-COP, authorizing him to sell alcoholic beverages by the drink for consumption on the premises of The Gaslight Lounge, located at 2070 U.S. 19 South, Clearwater, Florida. The Gaslight Lounge is a bar where, in addition to buying alcoholic beverages, the mostly male patrons can watch "exotic dancing" on stage and pay tips for a "table dance." 3/ The dancers are physically attractive females dressed in underwear or "T-back" 4/ bathing suit bottoms and bathing suit or tank tops. They are engaged by the management of The Gaslight Lounge to perform at the lounge. As they dance on stage, the disc jockey on duty introduces them by their stage names to the patrons present and encourages the patrons to ask the dancers to perform "table dances" for them personally. The dancers also directly solicit "table dances" from the customers. At the end of each shift, each dancer generally "tips out" i.e., pays out of tips collected, $15 to the manager, disk jockey and bartender. Ever since the Respondent acquired The Gaslight Lounge in about 1982, he has been concerned about illegal activities on the premises that could jeopardize his license. He has conferred with law enforcement to ascertain his responsibilities as to both drug use and lewd activities on the premises. As a result, he made and enforced a policy that dancers at The Gaslight Lounge are not permitted to touch patrons at all with the dancer's vaginal or anal area and are not permitted to touch the groin area of the patron with any part of the dancer's body; the patron is not permitted to touch the dancer's breasts, buttocks or vaginal area. Patrons are not permitted to touch the dancers in the breast, buttocks or vaginal area. The Respondent instructed his employees that patrons who violated the policy should be warned to stop and, if necessary, be required to leave the premises. The Respondent understood that violations of his policy would result in unlawful lewd acts. During his ownership of The Gaslight Lounge, the Respondent has instructed his managers and all employees about the policy against lewdness (as well as other policies). The employees--bartenders, waitresses, disk jockeys and dancers--were instructed to notify the manager on duty if they witnessed violations of the Respondent's policy. The Respondent also made it a practice to visit the establishment, during the hours it was open, but not on a regular schedule, to most effectively monitor for compliance with his policies. If he or one of his managers saw, or were told of, a violation of the Respondent's policy against lewdness, the offending dancer would be cautioned to observe the policy, sometimes after being called off the floor and into a back office. If the dancer repeated the offense, the dancer would be subject to being fired. Over the years, dancers have been fired for lewd dancing in violation of the Respondent's policy. Enforcement of the Respondent's policy against lewdness is not easy. Since the patron typically is seated with his back to the wall, the dancer's body is between the patron and almost anyone viewing the dance and partially obstructs the view. In addition, the lighting inside the establishment is dim, making it difficult to see exactly what the dancer and patron are doing, especially if seen from a distance. There are columns and half-walls in the building. In addition, patrons and employees circulate within the establishment, and dancing takes place on a stage in the middle of the establishment, all of which also can obstruct one's view of a "table dance," depending on the location of the viewer and the dance being observed. A "table dance" typically lasts for one song played by the disk jockey. The dancer escorts the patron to one of the booths lining the perimeter walls of the bar area, sits the patron down near the edge of the booth bench and begins "dancing." Even if it remains within the bounds of the Respondent's policy against lewdness, the dance is intended to be sexually suggestive and provocative, sometimes appearing to simulate sex acts. Depending on how the dance is performed, it can give the illusion that the dancer is rubbing various parts of her body, including the genital area, buttocks and breasts, against various parts of the body of the customer, including his genital area and face. Regardless how the dance is performed, the customer remains fully dressed, and the dancer does not remove any clothing (i.e., she remains dressed either in underwear or in her "T-back" bathing suit). The Respondent concedes that dancers have violated the Respondent's policy against lewdness. The evidence is that the Respondent tries to police and prohibit these violations, not always successfully. Sometimes, the Respondent or his manager, bartender, disk jockey or other employee think they see lewd dancing taking place, only to see from close proximity when they approach the dancer to reprimand her that no physical contact actually was occurring during the dance. Clearly, there is tension between the Respondent's policy and the economics of an establishment such as The Gaslight Lounge. Although less than a majority of the patrons of the establishment ask for table dances (the testimony included estimates of 15 to 20 percent), table dancing undeniably is a prominent part of the spectrum of entertainment offered at The Gaslight Lounge. For many patrons who ask for table dances, the more suggestive and provocative the better. The evidence suggested that the patrons receiving table dances never have complained that dancers violated the Respondent's policy. Although it was disputed that the amount of the dancers' tips are exclusively related to how suggestively and provocatively they dance, it is clear that this is a big factor. Walking the line drawn by the Respondent (and the authorities) to prohibit lewd dancing at The Gaslight Lounge is somewhat akin to trying to keep a pot of water from boiling over with the heat on high. At the same time, the tension between the Respondent's policy and the economic facts of life also can serve to aid in the monitoring and enforcement of the policy. A dancer who observes the policy feels at an unfair disadvantage when another dancer is violating the policy, and it is likely that the "legal" dancer will attempt to enforce the policy, by either threatening to report the "lewd" dancer or, if necessary, by reporting her to the manager or to the Respondent. In August, 1989, an undercover investigation was conducted at Sweethearts, an "exotic dance" lounge in which the Respondent was part owner. It resulted in the arrest of several dancers. The Respondent happened to be driving past the lounge when the arrests were being made and pulled in to see what was going on. When the Respondent told the law enforcement officers who he was, he was arrested for keeping a house of ill fame. Although the Respondent's efforts to understand exactly what was being enforced, i.e., exactly what was considered to be illegal lewd dancing, was somewhat frustrated by the various answers he received to his questions, the answers confirmed that the policies he had in effect against lewdness were adequate to prohibit the type of dancing that was considered by law enforcement to be lewd and illegal. This confirmed to him that if he continued to enforce his policies, he would be able to continue to operate his exotic dance lounges within the limits of the law. On October 12, 1989, two DABT investigators conducted an undercover operation at The Gaslight Lounge. The purpose of the operation was to see if violations of the criminal laws against lewdness were taking place in the lounge. During the time the investigators were in the lounge, they believed that they observed lewd acts by several dancers. The investigators believed that the dancers rubbed various parts of their bodies, including the genital area, buttocks and breasts, against various parts of the body of patrons, including the genital area and face, and that some of the patrons rubbed the breast area of the dancer or grabbed their buttocks in the area of the anal cleft, behavior which the dancers did little to stop or deter. These observations were made from a table in the lounge; the conduct being observed took place at the booths along the wall between approximately ten to twenty-five or more feet away. In all cases, at least some part of the dancer's body was between the patron and the investigator. In some cases, there was a column in the general vicinity of the investigator's line of vision; sometimes, there were other hindrances to the vision of the investigators, such as half-walls, other patrons or other employees. The lighting was dim; it would have been difficult to read a newspaper at the table where the investigators were sitting. Instead of exclusively relying on their powers of observation, each investigator asked a dancer to perform one table dance for him personally. During the dances actually performed for the investigator, no lewd activity was observed. The dancers did not actually touch either investigator with any part of the dancer's body. Neither investigator touched either dancer in the vaginal or breast area. The Respondent, who was in the lounge for part of the evening, and all of the employees working in the lounge that night who testified, testified that they observed no violations of the Respondent's policies against lewdness on October 12, 1989. At the end of the evening, uniformed sheriff's deputies entered The Gaslight Lounge and arrested all of the dancers, except the two that actually performed table dances for the DABT investigators, for illegal lewd acts. The next day, the Respondent and his manager spent hours on the phone trying to find dancers to replace those that had been arrested and to persuade the others to work that evening, notwithstanding the arrests of the night before. The Respondent, his manager and all the employees who worked that evening, especially the dancers, were very aware of the arrests of the night before. The dancers and all the employees were cautioned not to violate the Respondent's policy against lewdness. Some of the dancers were afraid to do any table dances at all for fear of arrest in light of the events of the previous evening, and some restricted their dancing on October 13 to the stage in the middle of the lounge. On the evening of October 13th, unaware of the events of the previous evening, three sheriff's deputies investigated The Gaslight Lounge for lewd activity. These deputies described essentially the same observations of the table dances as the DABT investigators had made the evening before, from vantage points that were no better. In addition, the observations of two of the deputies included rather bizarre alleged behavior consisting the dancer rubbing the patron's groin and chest area with the top of her head. None of the Respondent's employees observed any such behavior. The Respondent, who was in Orlando on the evening of the thirteenth, testified that he never observed dancers behave in such a manner in all the years he owned and operated The Gaslight Lounge. The Respondent was rightly skeptical of these so-called observations. At the end of the evening, the sheriff's office arrested all of the dancers, even the ones who had refrained from performing any table dances that night. The employees working at The Gaslight Lounge on October 13, 1989, who testified at the hearing testified that they observed no violations of the Respondent's policy against lewdness that evening. After the arrests on October 13, 1989, the Respondent was so convinced that the dancers were innocent that he paid to bail them out of jail and paid their lawyers to defend them on the criminal charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Notice to Show Cause against the Respondent, Michael John Mancuso, d/b/a The Gaslight Lounge, located at 2070 U.S. 19 South, Clearwater, Florida. RECOMMENDED this 13th day of February, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1991.
Findings Of Fact Central Florida Clubs Number 2 was the holder of the State of Florida Alcoholic Beverage License-Number 58-696 for the period October 1, 1976 through September 30, 1977. DABT seeks to assess a civil penalty against Central Florida Clubs Number 2 or to suspend or revoke its beverage license on the grounds that nine (9) violations of Section 847.011, Florida Statutes, occurred on the premises of the Central Florida Clubs Number 2 on May 11, 1977. On that date, dance routines involving topless female dancers touching male customers in a sexually suggestive manner occurred on the premises. No evidence was introduced purporting to establish that any of the dancers were agents or employees of Central Florida Clubs Number 2. Accordingly, it is found as a matter of fact that the dancers were not agents or employees of Central Florida Clubs Number 2. No evidence was introduced purporting to demonstrate whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appealed to prurient interest. Accordingly, it is found as a matter of fact that to the average person applying contemporary community standards, the dominant theme of the material presented at the Booby Trap taken as a whole did not appeal to prurient interest. No evidence was introduced purporting to establish that David Lee Feller was an agent or employee of Central Florida Clubs Number 2., Accordingly, it is found as matter of fact that David Lee Feller was not an agent or an employee of Central Florida Clubs Number 2.
The Issue Whether Respondents committed the violations alleged in the Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Agency adopts the findings of fact set forth in the Recommended Order. CLUSIONS OF LAW The Agency adopts the conclusions of law set forth in the Recommended Order. RDER 1. The Agency’s Amended Administrative Complaint is UPHELD and the above- named Respondent’s license is REVOKED. , 2. Additionally, a $20,000 fine and $1,000 survey fee are hereby imposed. Unless payment has already been made, payment in the amount of $21,000 is now due from the Respondent as a result of the agency action. Such payment shall be made in full within 30 days of the filing of this Final Order. The payment shall be made by check payable to Agency for Health Care Administration, and shall be mailed to the Agency for Health Care Administration, Attn. Revenue Management Unit, Office of Finance and Accounting, 2727 Mahan Drive, Mail Stop #14, Tallahassee, FL 32308. 3. In order to ensure the health, safety, and welfare of the Respondent’s clients, the revocation of the Respondent’s license is stayed for 30 days from the filing date of this Final Order for the sole purpose of allowing the safe and orderly discharge of clients. § 408.815(6), Fla. Stat. The Respondent is prohibited from accepting any new admissions during this period and must immediately notify the clients that they will soon be discharged. The Respondent must comply with all other applicable federal and state laws. At the conclusion of the stay, or upon the discontinuance of operations, whichever is first, the Respondent shall promptly return the license certificate which is the subject of this agency action to the appropriate licensure unit in Tallahassee, Florida. Fla. Admin. Code R. 59A- 35.040(5). 4. In accordance with Florida law, the Respondent is responsible for retaining and i appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. : 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. | ORDERED in Tallahassee, Florida, on this _/” day of put. = 2013, r ELIZABETH DUNEK, Secretary AGENCY FOR HEALTH CARE ADMINISTRATION
Conclusions This cause was referred to the Division of Administrative Hearings where the assigned Administrative Law Judge (ALJ), Lynne A. Quimby-Pennock, conducted a formal administrative hearing. At issue in this case is whether Respondent committed the violations alleged in the Amended Administrative Complaint; and, if so,-what penalty should be imposed. The Recommended Order dated January 17, 2013, is attached to this Final Order and incorporated herein by reference, except where noted infra.
Recommendation f Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Gene Cowles and Amelia Cowles, d/b/a Hillandale Assisted Living, violated sections 429.28 (1) {a} and (b) and 408.815(1) (e), imposing’ an administrative fine of $20,000.00, and assessing a survey fee of $1,000.00 ($500.00 for each investigation) associated with this case. 32 DONE AND ENTERED this 17th day of January, 2013, in Tallahassee, Leon County, Florida. Sn Meeffink YNNE A. QUIMBY-PENNOCK : Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 2013.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and comect gepy of this Final Order was served on the below-named persons by the method designated on this {30-day of Fora , 2014. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Patricia R. Caufman, Field Office Manager Revenue Management Unit Areas 5 and 6 (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh II, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Tracy George, Chief Appellate Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Christina Mesa, Esquire MESA Law, P.A. P.O. Box 10207 Tampa, Florida 33679-0207 Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency. STATE OF FLORIDA FILED AGENCY FOR HEALTH CARE ADMINISTRATION ~ AHCA AGENCY CLERK STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, . MAPA Ib A yy: Petitioner, DOAH CASE NO. 11-3721 AHCA NOS, 2011006466 v. ‘ : ~ 2011006798 LICENSE NO. 10549 GENE COWLES AND AMELIA COWLES FILE NO. 11966321 d/b/a HILLANDALE ASSISTED LIVING, FACILITY TYPE: ASSISTED LIVING FACILITY Respondent. RENDITION NO.: AHCA-24- 0,3 5°7-FOF-OLC / .
