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 The issues in this case are whether Respondent committed sexual misconduct in the practice of massage therapy and failed to appropriately drape a client as alleged in the First Amended Administrative Complaint1 (AAC), and if so, what disciplinary action should be taken against Respondent’s license.
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. At all times material to this proceeding, Respondent was licensed as a massage therapist in Florida, having been issued license number MA 80545. In the time since Respondent was licensed, no prior disciplinary action has been taken against her license. Respondent was born in the Liaoning Province, North China, and came to the United States in 2005. Respondent is a U.S. citizen. Respondent attended a Beauty School for her massage education and her educational instruction at school was in English. Further, when she took the examination to become a Florida licensed massage therapist, the examination was in English, and no one helped her to translate the material. Respondent’s address of record is 9986 Red Eagle Drive, Orlando, Florida, 32826.4 At all times relevant to the AAC, Respondent practiced massage therapy, as defined in section 480.033(3), at Golden Asian Massage, LLC, doing business as The Wood Massage (Golden Asian). Golden Asian was located at 1218 Winter Garden Vineland Road, Suite 124, Winter Garden, Orange County, Florida. 4 On November 26, 2019, the parties filed a Joint Pre-hearing Stipulation, stipulating that Respondent’s address of record was in New York. At some point after the March 2016 investigation, Respondent moved out of Florida. Then, either before or after November 26, 2019, Respondent moved back to Florida, but failed to advise her counsel or DOH of her address change. Respondent’s counsel stated that he would ensure Respondent filed the appropriate change of address information with DOH. At the time of the investigation, the LEO had been trained at the police academy, had multiple courses in vice-related investigations, human trafficking investigations, and drug trafficking investigations, including prostitution activities. The LEO has participated in “well over a hundred” undercover prostitution operations. The LEO’s investigation assignments “as a whole” include “anything that would be vice-related, drug trafficking or human trafficking.” The MBI is a joint police task force for the Ninth Judicial Circuit, which includes Orange County and Osceola County. MBI routinely investigates vice, human trafficking crimes, and mid-level to upper-level narcotic organizations. Once the MBI receives a complaint about a massage parlor, an undercover investigation is initiated. An undercover investigation team usually consists of five law enforcement personnel: a supervisor-in-charge; the undercover agent (agent); and two to three additional support personnel. An agent goes into the establishment, posing as a customer. Once the agent is on the massage table, the agent waits for the massage therapist to initiate, either via conversation or through an overt act, a predisposition for sexual activity. In some instances, the massage therapist might glide their fingers in the inner thigh, or speak of some sexual activity. Once the massage therapist initiates an actual sex act, the agent then tries to stop the sex act, while engaging in conversation. On March 9, 2016, after receiving a tip or complaint about the establishment, the MBI conducted an undercover investigation of the Golden Asian. The LEO arrived at the Golden Asian, met Respondent at the counter, and in English, asked for a 30-minute massage. Respondent responded in English and told the LEO it would cost $50 for a 30-minute massage. The LEO agreed to the cost, and Respondent led the LEO to a massage room within the Golden Asian. The LEO got completely undressed and positioned himself on his stomach, face-down on the massage table. Upon entering the room, Respondent grabbed a towel and placed it on the LEO’s back midsection. The LEO described the area covered as “pretty much my buttocks to, like, my lower back,” but the towel was not tucked in. Using oil, Respondent massaged the LEO’s back, thighs, and neck. While the LEO was still on his stomach and roughly ten to 15 minutes through the massage, the towel fell off. The LEO did nothing to dislodge the towel while he was on his stomach. Roughly halfway through the 30-minute massage, Respondent “stopped massaging and it was more of a gliding motion from [the LEO’s] back to [the LEO’s] inner thighs.” With this action, the LEO determined that Respondent was predisposed to engage in sexual activity. Respondent directed the LEO to turn over, which he did. The LEO testified that after he turned over his genitals were exposed. Respondent put more oil on her hands and massaged the LEO’s chest to his thigh area. Respondent further testified that Respondent “would glide and touch [the LEO’s] penis and scrotum.” Respondent asked the LEO if he liked it when Respondent “tapped” the LEO’s penis. The LEO answered “yes” to Respondent’s question. The touching of the LEO’s penis and scrotum again provided the predisposition that sexual activity could be engaged. The LEO then asked Respondent for oral sex, i.e. a blow job. Respondent declined to perform oral sex. The two engaged in talking and hand gesturing regarding manual masturbation and its cost. The LEO testified Respondent raised her hand to indicate manual masturbation would be $40.00. Respondent testified that she said “no” and did not state a price. As provided below, Respondent’s testimony was not credible. The LEO told Respondent that $40.00 was too expensive for masturbation. He then grabbed the original towel that had draped him from between his legs, cleaned the oil, dressed, and left the massage establishment. Shortly thereafter, Respondent was arrested.5 5 The dismissal of Respondent’s criminal charges is not probative of whether she committed the regulatory violations. Respondent’s hearing testimony of how the towel fell off during the LEO’s massage differs from her deposition testimony. At hearing, Respondent testified that when the LEO flipped over, the towel fell off and she did not grab it fast enough. Respondent then added it took her “one minute, two minutes” to adjust the towel. Respondent admitted that she exposed the LEO’s genitals without his permission. However, during her deposition, Respondent blamed the type of oil massage that she was administering to the LEO for the towel falling off. Respondent claimed that her hand movement was “pretty hard. So with the movement, the towel shifting a little bit by little bit, and then [the towel] fell off completely.” Respondent also testified that she “saw it [the towel] dropped off, then [she] put it back right away.” In either instance, the LEO’s genitals were exposed without his consent. At the hearing, Respondent’s description of the towel used on the LEO changed from her deposition. During the hearing, Respondent testified the towel was “one to two feet wide . . . the length is about 1.5 meters [over four feet]. I’m not exactly sure.” However, in her deposition, Respondent provided that the towel was “more like a facial towel. It’s not a very big shower towel, but it’s more a facial towel size . . . one [foot] by two [foot].” Respondent’s testimony describing the LEO’s massage is not clear or credible and is rejected. The LEO’s testimony was credible, clear, convincing, and credited. Ms. Buhler is a licensed massage therapist and based on her education, training, and experience, she is accepted as an expert in massage therapy. “Draping” is covering the body while a massage therapist is working on it for the client’s comfort and privacy. Usually, a sheet is used for draping a client (if the room is too cold, a blanket could be added). As a massage therapist works on specific body areas, that body part is uncovered and the towel repositioned when the therapy to that area is completed. Ms. Buhler opined that the size of the towel (“1 [foot] x 2 [foot]” as described by Respondent in her deposition) is “very small,” and is an unusual drape size. Further, she opined that a “1 x 2 towel barely covers anything. It would be almost impossible not to either view something or potentially accidentally bump something with a drape of that size.” If any drape were displaced during a massage, the standard of care requires that the drape be put back in place immediately, not in one or two minutes. Ms. Buhler opined that “anytime a therapist attempts to, either for their own pleasure or for the pleasure of the client, to get any sort of sexual gratification, that is considered sexual misconduct.” A therapist has a choice when any type of sexual activity is suggested or offered. A therapist can redirect someone, state that the activity is not appropriate for the setting, threaten to terminate the massage, or in fact, terminate the massage by leaving the treatment room. Respondent provided that she continued to massage the LEO for one or two minutes after the request for oral sex. Although Respondent claimed she said “No,” she did not take any affirmative action to terminate the session or remove herself from the situation. Respondent’s actions on March 9, 2016, were outside the scope of generally accepted treatment of massage therapy patients. There is no evidence that Respondent has ever had any prior discipline imposed against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Massage Therapy enter a final order finding Respondent, Mingli Li, in violation of sections 480.046(1)(i) and 480.0485, Florida Statutes, constituting grounds for discipline under section 480.046(1)(p), imposing a fine of $3,500.00; revoking her license to practice massage therapy; and assessing the cost of investigating and prosecuting the Department’s case against Respondent. DONE AND ENTERED this 13th day of February, 2020, in Tallahassee, Leon County, Florida. S LYNNE 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 13th day of February, 2020. COPIES FURNISHED: Zachary Bell, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Michael S. Brown, Esquire Law Office of Michael S. Brown, PLLC 150 North Orange Avenue, Suite 407 Orlando, Florida 32801 (eServed) Christina Arzillo Shideler, Esquire Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Kama Monroe, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
Findings Of Fact The Department, Board of Massage Therapy (Board), 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 the complaint, Ms. Wang was a licensed massage therapist within the State of Florida, having been issued license number MA 80935 on or about December 31, 2015. Ms. Wang's address of record is 9844 Sandalfoot Boulevard, Boca Raton, Florida 33428. Ms. Wang began working as a massage therapist at Wellness Spring Center (Wellness) 7865 West Sample Road in Coral Springs, Florida, on May 2, 2016. On or about May 26, 2016, the Coral Springs Police Department (CSPD) conducted a prostitution investigation at Wellness. Detective Gariepy, a detective in the vice, intelligence, and narcotics unit of the CSPD, working undercover, requested a one-hour full body massage and was advised it would cost $60.00. Detective Gariepy paid the $60.00 in official investigative funds, and he was escorted to a private room. Detective Gariepy got undressed and lay face down on a massage table. Ms. Wang provided Detective Gariepy with a massage. Ms. Wang began working on Detective Gariepy's back side, and later asked him to flip over onto his back, which he did. She then massaged the front side of his body. She put her hand on his testicles and then on his penis, and began stroking it in a sexual manner. After only a few seconds, Detective Gariepy stopped her, saying he was a married man. Detective Gariepy testified on cross-examination that Ms. Wang never asked him for any money when she was touching him. Detective Gariepy got dressed and left the massage establishment. CSPD officers entered the massage establishment and made contact with Ms. Wang, who was then positively identified by Detective Gariepy as the therapist who massaged him. It was stipulated by the parties prior to hearing that Ms. Wang provided Detective Gariepy with a massage. Ms. Wang's contrary testimony at hearing, to the effect that the person to whom she gave a massage that day was not Detective Gariepy was not credible and is rejected. Her testimony that she did not inappropriately touch Detective Gariepy's testicles and penis, was not credible and is rejected. While Detective Gariepy admitted he was unable to pick out a photograph of Ms. Wang a little over two years later in a deposition, he explained that as he was receiving the massage, he focused on exactly what Ms. Wang was wearing and concentrated on her physical features so that he could positively identify her to the arresting officers. The parties stipulated prior to hearing that Ms. Wang was positively identified by Detective Gariepy as the therapist who had massaged him. His testimony was credible. On May 26, 2016, Ms. Wang used the massage therapist- patient relationship to attempt to engage Detective Gariepy in sexual activity. Ms. Wang engaged in sexual misconduct in the practice of massage therapy. Ms. Wang 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 Florida Department of Health, Board of Massage Therapy, enter a final order finding Ms. Yangling Wang in violation of sections 480.0485 and 456.072(1)(v), Florida Statutes, constituting grounds for discipline under section 480.046(1)(p), Florida Statutes; imposing a fine of $2,500.00; revoking her license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 24th day of October, 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 24th day of October, 2018. COPIES FURNISHED: Gerald C. Henley, Esquire Kimberly L. Marshall, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Hongwei Shang, Esquire The Law Office of Hongwei Shang, LLC 7350 Southwest 89th Street, Suite 100 Miami, Florida 33156 (eServed) Louise Wilhite-St Laurent, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Kama Monroe, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed)
Findings Of Fact Petitioner, Department of Business and Professional Regulation, is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 480, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Joyce Ann Borcina, is now, and was at all times material hereto, a licensed massage therapist in the State of Florida, having been issued license number MA 0011685. Respondent was, at all times material hereto, the owner and operator of Joy Therapeutic Massage, Inc., which was, at those times, a licensed massage establishment, license number MM 0002999, located at 2298 Northwest Second Avenue, office number 21, Boca Raton, Florida. As of the date of hearing, Joy Therapeutic Massage, Inc., was not licensed as a massage establishment. On or about July 15, 1993, an officer of the City of Boca Raton Police Department, operating undercover, received massage services from "Debby" at Joy Therapeutic Massage, Inc. The Officer paid $40 for the massage, tipped Debby $10, and asked her whether there "were any other services available?" Debby replied that she would be able to massage him both topless and bottomless for $100. On July 19, 1993, the Officer, again acting undercover, received massage services from respondent at Joy Therapeutic Massage, Inc. During the course of that massage, the Officer told respondent that the prior massage therapist had "said that I could get a massage and that she would be topless and bottomless." Respondent replied that "she couldn't do that unless she got to know me a little better." Notwithstanding, when the Officer turned over on his back to continue the massage, respondent began disrobing until she was naked and, as she began to massage him again grabbed his penis. The Officer declined, what he perceived and apparently was, an attempt to masturbate him, but inquired, as he was preparing to leave, whether "there [was] anything else we can do?" Respondent replied, "that maybe next time, as long as I could get to know her a little better." The Officer then paid respondent $50 for the massage and left. On July 27, 1993, the Officer, still operating undercover, kept an appointment for a massage with respondent at Joy Therapeutic Massage, Inc. At the commencement of that session, while she was disrobing, respondent agreed to engage in "regular sex" with the Officer for $100. Shortly thereafter, when she had finished disrobing, the Officer identified himself as a police officer and placed respondent under arrest. According to the court records filed in this case [Petitioner's exhibit 4], respondent pled nolo contendere to a one-count violation of Section 480.047(1)(c), Florida Statutes, which renders it unlawful for any person to "[p]ermit an employed person to practice massage unless duly licensed," a first degree misdemeanor. In response to such plea, the court withheld adjudication of guilt, placed respondent on probation for a term of six months, with the special condition that she perform thirty-five hours of community service, and imposed court costs of $105. Respondent offered no proof at hearing to explain the circumstances surrounding her plea of nolo contendere.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the charges set forth in Counts Two through Four of the administrative complaint, dismissing Count One of the administrative complaint, and revoking respondent's license as a massage therapist. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March 1995. WILLIAM J. KENDRICK 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 23rd day of March 1995.
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.
