The Issue The issues to be determined in this case are whether the Respondent, Lauren Dillman-Bell, obtained her Florida license to practice massage therapy through fraud or error, in violation of section 456.072(1)(h), Florida Statutes (2009), or made misleading, untrue, deceptive, or fraudulent representations on her application for licensure, in violation of section 456.072(1)(w), both of which constitute violations of section 480.046(1)(o); and if so, the appropriate sanction. (Unless otherwise indicated, citations to the Florida Statutes and rules of the Florida Administrative Code refer to the versions in effect when the Respondent’s license was issued on July 1, 2009.)
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43, and chapters 456 and 480, Florida Statutes (2016). At all times material to the Administrative Complaint, the Respondent was licensed to practice massage therapy in the State of Florida, having been issued license number MA 56509 on or about July 1, 2009. When the Respondent applied for licensure in June 2009, she answered “no” to a question whether she had “ever been convicted of, or entered a plea of guilty, nolo contendere, or no contest to a crime in any jurisdiction other than a minor traffic offense.” When the Respondent’s license was issued, the Petitioner was unaware that the answer to the question on the application should have been “yes.” This was not brought to the Petitioner’s attention until June 2013. The Petitioner investigated, and the Administrative Complaint was filed. It is clear from the evidence presented at the hearing that the Respondent entered the following pleas in the District Court of Oklahoma County, Oklahoma, in December 2005: guilty to one count of possession of a controlled, dangerous substance with intent to distribute; guilty to one count of possession of a controlled, dangerous substance (methamphetamine) with intent to distribute; guilty to one count of possession of a stolen vehicle/receiving stolen property; and guilty to two counts of possession of a weapon. Although the Respondent did not appear or testify at the hearing, it can be inferred that she knew or should have known that her answer to the question on her license application about criminal convictions and guilty pleas was false. Even if the answer were unintentionally false, the Petitioner relied on it when it issued the Respondent’s license without conducting any investigation into the Respondent’s fitness for licensure notwithstanding the guilty pleas. (It also could be inferred from the Respondent’s failure to pursue her request for a hearing, and her failure to provide effective contact information so as to receive notices regarding the case, that she has withdrawn and waived her disputes as to the facts alleged in the Administrative Complaint.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued: (1) finding that the Respondent violated section 480.046(1)(o) by violating sections 456.072(h) and (w); and (2) revoking her massage therapy license. DONE AND ENTERED this 30th day of May, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2017. COPIES FURNISHED: Lauren Dillman-Bell, L.M.T. 5033 Lords Avenue Sarasota, Florida 34231 Lealand L. McCharen, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Jaquetta Johnson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Claudia Kemp, JD, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed)
The Issue Whether Respondent violated provisions of chapter 480, Florida Statutes, as alleged in the Administrative Complaint, and; if so, what penalty should be imposed?
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following factual findings are made: The Department is the state agency charged with the licensing and regulation of massage therapists pursuant to section 20.42 and chapters 456 and 480, Florida Statutes. At all times material to the allegations in this proceeding, Respondent was a licensed massage therapist in the State of Florida, having been issued license number MA 80938. During May 2016 Respondent worked at Massage Envy (“M.E.”) as a massage therapist. M.E. is a spa facility offering massage services. D.W. is a 46-year-old female with significant back issues. D.W. was in a boating accident as a child, and has had at least eight back surgeries in attempts to alleviate her back pain. Since 2012, D.W. has had numerous massages to help ease her back pain. She initially received massages through her chiropractor’s massage therapist. The chiropractor’s massage therapist was unable to continue, and D.W. started obtaining massages at M.E. D.W. obtained free massages from M.E. when she participated as a “mystery shopper”4/ for M.E. Following that experience, D.W. became a client of M.E. D.W. usually received full-body massages on a monthly basis,5/ except when she had the back surgeries. On May 27, 2016, D.W. contacted M.E. requesting a massage appointment. She was assigned Respondent as her regular masseuse was unavailable. D.W. arrived for the massage and met Respondent. The massage was scheduled for two hours. D.W. and Respondent discussed D.W.’s back pain. Respondent left the treatment room to allow D.W. time to completely disrobe and cover herself with the drape cloth or sheet. During the first half of the massage, D.W. was face down while Respondent stretched her out. She was comfortable with this part of the massage as she remained fully covered by the sheet. Approximately half way through the massage, Respondent briefly left the room, and D.W. turned over to be face up for the remainder of the massage. In the face-up position, Respondent began the next phase of the massage. While he was working on D.W.’s left leg, Respondent bumped her vagina. D.W. initially thought the touching was an accident; however, Respondent kept touching her clitoris. Respondent then put two to three fingers inside D.W.’s vagina. D.W. was “very scared,” and initially felt frozen in fear. After a few minutes Respondent asked if he needed to stop the massage. After a few seconds, D.W. was able to say, “It’s making me feel like I have to pee, please stop.” Respondent stopped. Respondent then asked if D.W. wanted to have her hands or feet massaged as there were a couple of minutes remaining in her appointment. D.W. did not want Respondent’s hands touching her hands; she indicated he could message her feet. Respondent finished the massage by working on D.W.’s feet. After the massage ended, D.W. dressed. D.W. went to the restroom, received a cup of water from Respondent and checked out at M.E.’s front desk. D.W. went to the parking lot, called the M.E. manager, and told the manager what happened. D.W. then went home. D.W. told her husband what had happened and the two of them returned to M.E. The Largo Police Department was called and a report was filed. While testifying about this very intimate type of contact, D.W.’s demeanor was distressed. She cried as if it were painful to recount. D.W. now is unable to use massage therapy to treat her back pain. Additionally, D.W. has trouble sleeping, and is unable to have sex because she considers what Respondent did to her was “foreplay.” Respondent denied that he engaged in any form of sexual activity with D.W. Respondent attempted to blame D.W.’s allegation as either a “counter-transference” or “transference” event. Respondent postulated that the counter-transference or transference is “where the client imposes a negative feeling or a negative association upon their therapist after something is awoken during massage.” Respondent agreed that D.W. had been getting massages for years, and that she would be accustomed to the massage experience. Respondent also agreed that there was nothing special about the massage he gave to D.W. Respondent’s testimony is not credited. Massage therapy training teaches that massage in the vicinity of the genital area is to be conducted very carefully. If a massage therapist properly draped a patient consistent with the requirements of rule 64B7-30.001, it would not be possible to inadvertently touch a client's genital area. The placement of a massage therapist's finger (or fingers) into the vagina of a massage client is outside the scope of the professional practice of massage therapy and is below the standard of care. There is no therapeutic value to massaging or penetrating the vagina, and there is no circumstance by which a massage therapist should touch a client’s vagina.
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 section 480.0485 and rule 64B7-26.010; and imposing a fine of $2,500 and revoking his license to practice massage therapy. DONE AND ENTERED this 22nd day of February, 2017, 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 22nd day of February, 2017.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Parties The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses. On July 31, 2008, the Department issued Respondent license number MA 54053, which authorized her to practice massage therapy in the state of Florida. Respondent's address of record is 2615 South University Drive, Davie, Florida 33328. The Events Respondent was born in China and, at all times relevant to this proceeding, was a citizen of China. In 2001, Respondent immigrated to the United States and became a citizen of the state of California. In or around December 2006, Respondent enrolled at Royal Irvin College ("Royal Irvin"), an institution located in Monterey Park, California, that offered massage therapy instruction. Some three months later, upon Respondent's successful completion of a course of study comprising 500 hours, Royal Irvin awarded her a degree. Thereafter, Respondent obtained permits to practice massage therapy in three California municipalities and, on July 26, 2007, passed the National Certification Examination for Therapeutic Massage and Bodywork. In early 2008, Respondent relocated to south Florida in pursuit of better-paying employment opportunities. Respondent's search ultimately brought her to "Oriental Massage," whose owner, Ah Ming, informed her that she needed to obtain a Florida license to be eligible for hire. As Royal Irvin was not a Board-approved massage school, Respondent needed to complete a course of study at an approved institution or, alternatively, an apprenticeship program. At the suggestion of Mr. Ming, Respondent telephoned Glenda Johnson, the registrar of the Florida College of Natural Health ("FCNH")——a Board-approved massage school. During their initial conversation, Respondent explained her situation to Ms. Johnson, who, in turn, recommended that Respondent come to her office at FCNH's Pompano Beach campus. Respondent's subsequent appointment with Ms. Johnson and her application for licensure are discussed shortly; first, though, a description of FCNH——and its responsibilities under Florida law——is in order. FCNH, an incorporated nonpublic postsecondary educational entity, holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes (2012).2/ In addition to being duly licensed by the state, FCNH is accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy. Finally, FCNH is a "Board-approved massage school" within the meaning of that term as defined in section 480.033, Florida Statutes. At the times relevant to this proceeding, the minimum requirements for becoming and remaining a Board-approved massage school were set forth in Florida Administrative Code Rule 64B7- 32.003 (Oct. 30, 2007), which provided in relevant part as follows: In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must: Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 1005, F.S., or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . . Apply directly to the Board of Massage Therapy and provide the following information: Sample transcript and diploma; Copy of curriculum, catalog or other course descriptions; Faculty credentials; and Proof of licensure by the Department of Education. (emphasis added). As an institution holding a license by means of accreditation, FCNH must comply with the fair consumer practices prescribed in section 1005.04 and in the rules of the CIE.3/ Regarding these required practices, section 1005.04, Florida Statutes (2008), provided during the relevant time frame as follows: Every institution that is under the jurisdiction of the commission or is exempt from the jurisdiction or purview of the commission pursuant to s. 1005.06(1)(c) or (f) and that either directly or indirectly solicits for enrollment any student shall: Disclose to each prospective student a statement of the purpose of such institution, its educational programs and curricula, a description of its physical facilities, its status regarding licensure, its fee schedule and policies regarding retaining student fees if a student withdraws, and a statement regarding the transferability of credits to and from other institutions. The institution shall make the required disclosures in writing at least 1 week prior to enrollment or collection of any tuition from the prospective student. The required disclosures may be made in the institution's current catalog; Use a reliable method to assess, before accepting a student into a program, the student's ability to complete successfully the course of study for which he or she has applied; Inform each student accurately about financial assistance and obligations for repayment of loans; describe any employment placement services provided and the limitations thereof; and refrain from promising or implying guaranteed placement, market availability, or salary amounts; Provide to prospective and enrolled students accurate information regarding the relationship of its programs to state licensure requirements for practicing related occupations and professions in Florida; * * * In addition, institutions that are required to be licensed by the commission shall disclose to prospective students that additional information regarding the institution may be obtained by contacting the Commission for Independent Education, Department of Education, Tallahassee. (emphasis added). At the time of the events giving rise to this proceeding, the CIE's rule relating to fair consumer practices provided in relevant part as follows: This rule implements the provisions of Sections 1005.04 and 1005.34, F.S., and establishes the regulations and standards of the Commission relative to fair consumer practices and the operation of independent postsecondary education institutions in Florida. This rule applies to those institutions as specified in Section 1005.04(1), F.S. All such institutions and locations shall demonstrate compliance with fair consumer practices. (6) Each prospective student shall be provided a written copy, or shall have access to an electronic copy, of the institution's catalog prior to enrollment or the collection of any tuition, fees or other charges. The catalog shall contain the following required disclosures, and catalogs of licensed institutions must also contain the information required in subsections 6E- 2.004(11) and (12), F.A.C.: * * * (f) Transferability of credits: The institution shall disclose information to the student regarding transferability of credits to other institutions and from other institutions. The institution shall disclose that transferability of credit is at the discretion of the accepting institution, and that it is the student's responsibility to confirm whether or not credits will be accepted by another institution of the student's choice. . . . No representation shall be made by a licensed institution that its credits can be transferred to another specific institution, unless the institution has a current, valid articulation agreement on file. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: Units or credits earned at and transferred from other postsecondary institutions, when congruent and applicable to the receiving institution's program and when validated and confirmed by the receiving institution. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving institution. * * * (11) An institution is responsible for ensuring compliance with this rule by any person or company contracted with or employed by the institution to act on its behalf in matters of advertising, recruiting, or otherwise making representations which may be accessed by prospective students, whether verbally, electronically, or by other means of communication. Fla. Admin. Code R. 6E-1.0032 (July 23, 2007)(emphasis added). As a duly-licensed, accredited, Board-approved massage school, FCNH was, at all relevant times, authorized to evaluate the transferability of credits to FCNH from other massage schools, so that credits earned elsewhere (including from schools that were not Board-approved) could be applied toward the award of a diploma from FCNH. In making such an evaluation, FCNH was obligated to follow the standards for transfer of credit that the Board had established by rule.4/ Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, sign, and attach to the student's transcript the Board's Transfer of Credit Form, by which the school's dean or registrar certified that the student's previously-earned credits, to the extent specified, were acceptable in lieu of the student's taking courses at FCNH. Returning to the events at hand, Respondent met with Ms. Johnson, FCNH's registrar, on March 17, 2008. Notably, Ms. Johnson possessed actual authority, on that date and at all relevant times, to generate official transcripts and diplomas on behalf of FCNH. The meeting, which took place on a weekday during normal business hours, was held in Ms. Johnson's office——located on the first floor of a multi-story building on FCNH's Pompano Beach campus. Upon Respondent's arrival (at the main entrance), a receptionist summoned Ms. Johnson, who, a short time later, appeared in the lobby and escorted Respondent to her office. During the meeting that ensued, Respondent reiterated (with her limited English skills) her desire to obtain licensure in Florida as a massage therapist. To that end, Respondent presented Ms. Johnson with various documents, which included her diploma and transcript from Royal Irvin, copies of her existing professional licenses, and proof of her national certification. As the meeting progressed, Ms. Johnson made copies of Respondent's records and asked her to sign an FCNH enrollment agreement, which Respondent did. The agreement, which is part of the instant record, indicates that Respondent was enrolling for the purpose of "(Transfer of Licensure) Therapeutic Massage Training." The agreement further reflects, and Respondent's credible testimony confirms, that, on the date of their meeting, Ms. Johnson collected $520.00 in fees5/ from Respondent. In addition to the enrollment agreement,6/ Ms. Johnson filled out, and Respondent signed, a three-page form titled, "State of Florida Application for Massage Therapist Licensure." In the application, Respondent truthfully disclosed, among other things, that she had completed 500 hours of study at Royal Irvin; that Royal Irvin was not approved by the Board; and that she had not attended an apprenticeship program. Before the meeting ended, Respondent observed Ms. Johnson print and sign two documents: an FCNH Certificate of Completion, which reflected that Respondent had satisfied a two- hour course relating to the prevention of medical errors; and an FCNH Certificate of Completion indicating the completion of a "Therapeutic Massage Training Program (Transfer of Licensure)." When asked about the documents, Ms. Johnson informed Respondent, erroneously, that her prior coursework and existing credentials were sufficient for licensure. (Among other things, Ms. Johnson should have advised Respondent that Board-approved coursework in "HIV/AIDS" and the "prevention of medical errors"——neither of which Respondent completed until after7/ the Complaint was filed in this matter——was required8/ for licensure.) All Respondent needed to do, Ms. Johnson incorrectly explained, was read an FCNH-prepared booklet concerning the prevention of medical errors. Consistent with Ms. Johnson's instructions, Respondent took the booklet home and reviewed its contents. In the weeks that followed, the Department received Respondent's application for licensure and various supporting documents, which included: the FCNH certificates (discussed above); a "Transfer of Credit Form" signed by Ms. Johnson, which indicates that FCNH accepted Respondent's credits from Royal Irvin, and, further, that Respondent's coursework at Royal Irvin included a two-credit class involving the prevention of medical errors; an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing that Respondent had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)"; Respondent's diploma and transcript from Royal Irvin; and a copy of Respondent's national certification as a massage therapist. Collectively, the credit transfer form, the FCNH certificates, and the FCNH transcript "signify satisfactory completion of the requirements of an educational or career program of study or training or course of study" and constitute a "diploma" within the meaning of that term as defined in section 1005.02(8), Florida Statutes. (These documents, which Respondent's FCNH diploma comprises, will be referred to hereafter, collectively, as the "Diploma.") On May 30, 2008, the Department provided written notification to Respondent that, upon initial review, her application was incomplete because it failed to include copies of her California esthetician's license and massage permit from the city of Costa Mesa, California. Significantly, the correspondence noted no other irregularities or omissions concerning Respondent's application or supporting documentation. Consistent with the Department's request, Respondent furnished copies of her esthetician's license and massage permit from Costa Mesa. Thereafter, on July 31, 2008, the Department issued Respondent her license to practice massage therapy. Although the Department seeks to characterize the issuance of Respondent's license as a "mistake" on its part, such a contention is refuted by the final hearing testimony of Anthony Jusevitch, the executive director of the Board. Mr. Jusevitch testified, credibly, that the Respondent's application materials contained no facial irregularities or flaws that would have justified a denial: Q. Mr. Jusevitch, is this, then, the complete application file that was received by the board? A. Yes. Q. When you look at all of the documents in this application file, is there anything in the file that would have caused the Board of Massage Therapy to reject this application? A. I didn't see anything that would have cause[d] us to reject this application when I review it; no. * * * A. No, there was nothing irregular about the application. . . . Final Hearing Transcript, pp. 83; 86. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination (which the NCB administers) from FCNH graduates whose transcripts seemed irregular. What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin, and that the same member of FCNH's administration——i.e., Ms. Johnson——had accepted their transfer credits. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected some anomalies in them. She was unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students. Ms. Wade confronted Ms. Johnson with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them, but she denied——untruthfully, at least with respect to her dealings with Respondent——ever having taken money for doing so. (Ms. Johnson provided the rather dubious explanation that she had been merely trying to "help" people.) Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Thereafter, Ms. Wade notified the Department that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH cooperated. The investigation uncovered approximately 200 to 250 graduates, including Respondent, whose credentials FCNH could not confirm.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding Respondent not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 14th day of June, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2013.
The Issue The issues for determination in this case are whether Respondent committed the acts alleged in the Administrative Complaint, and if so, whether Respondent's license to practice massage therapy in Florida should be revoked or otherwise disciplined.
Findings Of Fact Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION (DBPR), is the agency of the State of Florida vested with the statutory duty and authority to administer the provisions of Chapter 480, Florida Statutes, governing massage practice. Respondent, ROBERT WILLIAM IVANY, was initially licensed as a massage therapist in the State of Florida on July 8, 1986, and presently holds license number MA 0006899 (Massage). Respondent's license is currently in "delinquent/renewal notice prepared" status. Respondent's current license biennium expires on January 31, 1997. At all material times hereto, Respondent was employed as a licensed massage therapist at the Pasadena Wellness Center in St. Petersburg, Florida. On or about January 28, 1994, complainant, Linda Schaufele, arrived at the Pasadena Wellness Center to receive a massage. Ms. Schaufele had been experiencing soreness in her shoulder and neck and wanted a massage to alleviate this condition. Ms. Schaufele had previously received massages many times; however, this was her first visit to the Pasadena Wellness Center. Ms. Schaufele was sent by the staff receptionist at the Pasadena Wellness Center to a massage room, where she removed her clothing except for her underwear. Respondent subsequently entered the massage room. Prior to this time, Ms. Schaufele did not know Respondent, and had no previous contact with Respondent. Respondent entered into a therapist-client relationship with Ms. Schaufele. Ms. Schaufele informed Respondent of the soreness in her shoulder and neck. Ms. Schaufele agreed to a full body massage, but requested Respondent concentrate on her shoulder and neck. Respondent began the massage with Ms. Schaufele lying on her stomach. Respondent used oil or lotion during the massage. After massaging her shoulders, neck and working down her back, Respondent turned Ms. Schaufele over to lie on her back and began to massage her from the waist down. At this time Respondent distinctly placed his hand between Ms. Schaufele's legs into her pubic area. Ms. Schaufele immediately stiffened her legs to prevent Respondent from continuing to keep his hand between her legs. Respondent removed his hand from between Ms. Schaufele's legs, and finished the massage. Respondent used the therapist-client relationship to engage in sexual activity with Ms. Schaufele. Ms. Schaufele was very uncomfortable during the remainder of the massage, and was upset about the Respondent's actions. Subsequent to this incident on January 28, 1994, Ms. Schaufele became acquainted with the owner of the Pasadena Wellness Center. Ms. Schaufele then informed the owner of the Respondent's actions which occurred during her massage on January 28, 1994. Ms. Schaufele was told by the owner that there had been other complaints regarding Respondent. On or about May 12, 1993, complainant, Nancy Scotti, arrived at the Pasadena Wellness Center to receive a massage. Ms. Scotti had never received a massage before, and had no prior experience with a licensed massage therapist. Ms. Scotti was instructed by the staff receptionist to fill out certain forms. Respondent then came to the reception area and led Ms. Scotti to a massage room. Ms. Scotti did not know Respondent, and had no previous contact with Respondent. Respondent entered into a therapist-client relationship with Ms. Scotti. Respondent instructed Ms. Scotti to "get ready", which in response to, Ms. Scotti undressed, except for her underwear, and lay down on her stomach on the massage table. Ms. Scotti covered herself with a sheet that was provided in the massage room. Ms. Scotti informed Respondent that she had experienced pain in her upper back, shoulders and neck. Ms. Scotti did not request any particular kind of massage. Respondent began the massage with Ms. Scotti lying on her stomach. Respondent massaged her neck, shoulders, and worked down her back. Respondent used and applied a lotion to Ms. Scotti's body during the massage. Respondent then proceeded to massage Ms. Scotti's arms and legs, working his way back to her inner thighs and crotch area. While massaging her inner thighs Respondent asked Ms. Scotti why she was not indicating her enjoyment of the massage. At this point Ms. Scotti was becoming increasingly uncomfortable and concerned; however, due to her apprehension and her inexperience with a licensed massage therapist Ms. Scotti did not express her concern, or otherwise stop the massage. Respondent then placed his hands inside Ms. Scotti's underwear and massaged her buttocks. Respondent turned respondent over on her back, and massaged her neck and shoulders. Respondent then uncovered and with one hand massaged Ms. Scotti's breasts, and with the other hand digitally penetrated Ms. Scotti's vagina repeatedly. Respondent used the therapist-client relationship to engage in sexual activity with Ms. Scotti. Ms. Scotti was frightened and alarmed. Respondent attempted to remove her underwear, and she pushed him away. Respondent then inquired if Ms. Scotti had reached orgasm. She did not respond, and Respondent concluded the massage session and left the massage room. Ms. Scotti remained frightened and alarmed. She dressed, left the Pasadena Wellness Center, and walked outside where her friends Audra Radvil, Bernadette Robinson, and Peg Etchison were waiting for her. At this time Ms. Scotti appeared distraught. She began crying and informed her friends what had occurred. Her friends observed a law enforcement officer in the parking lot, and approached the officer and related the incident. A second officer, Deputy Sheriff Craig Bornstein, was summoned to the scene. Ms. Scotti related the incident to Deputy Bornstein. Ms. Scotti was then transported to the Pinellas County Sheriff's Office where her sworn statement was taken by Detective Kenneth Kanoski. Ms. Scotti was then taken to the Pinellas County Health Unit where she underwent a sexual assault victim examination. The examination was conducted by Sylvia Franklin, an advanced registered nurse practitioner with extensive experience in conducting such examinations. The examination included drawing blood, taking vaginal and breast swabs, and obtaining saliva and urine samples. The chain of custody of the samples obtained during the examination was preserved. Detective Kanoski investigated this incident, and obtained a sample from Respondent of the lotion used by Respondent on Ms. Scotti. The lotion was Revlon Aquamarine Body Lotion. The specimens obtained during the examination of Ms. Scotti and the sample lotion obtained during the investigation by Detective Kanoski were sent for analysis to the Federal Bureau of Investigation (FBI) laboratory. The results of the FBI analysis showed the presence of isopropyl palmitate in the lotion obtained from Respondent, as well as in the vaginal and breast swab specimens taken during the examination of Ms. Scotti. Isopropyl palmitate is not a naturally occurring substance, and is not found in any product normally intended for use in the vaginal area. Isopropyl palmitate was contained in the lotion that was used by Respondent, and was introduced into Ms. Scotti's vagina as a result of Respondent's actions. Following this incident, Ms. Scotti has missed work and become withdrawn, depressed, and apprehensive toward others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Massage, enter a final order revoking Respondent's license to practice massage therapy. DONE and ORDERED this 15th day of October, 1996, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Robert W. Ivany 762 15th Avenue South St. Petersburg, Florida 33701 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anna Polk, Executive Director Board of Massage Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of massage (Chapters 20.30, 455, and 480, Florida Statutes). The Respondent is a licensed massage therapist, holding license number MA 0004771 (P's Exh. 2). The Respondent holds a massage establishment license for Massage by Olga, license number MM001233 (P's Exh. 1). Massage by Olga is located at 643 Tanglewood, Daytona Beach, Florida 32114. No other businesses are located at that address (T-31). The Petitioner is charged with inspecting the establishment premises. Section 480.043(9), Florida Statutes, and Rule 21L-26.005, Florida Administrative Code. It is the usual and common practice of inspectors to make unannounced inspections (T-10-11). To make announced inspections would contravene the reason for the inspection, giving licensees time to clean up their licensed premises (T-11, 28). The Petitioner's inspector, Linda Mantovani, who works out of Jacksonville, Florida, attempted to make an inspection of the establishment, Massage by Olga, on January 30, 1991 (T-13). She knocked on the front door and waited seven (7) minutes. No one came to the door. Ms. Mantovani observed two cars in the driveway of the establishment (T-14). Ms. Mantovani heard noise coming from inside the establishment (T-14- 15). Ms. Mantovani went around to the side entrances and windows, and again knocked on the front door (T-15-16). Ms. Mantovani's knocks were unanswered (T-15). Ms. Mantovani waited outside the establishment for another 15 to 20 minutes to see if anyone left. She observed no one leaving or entering the establishment (T-16). Ms. Mantovani observed a sign on the front door of the establishment which said: Appointments & Information by telephone-only No appointments, No knock!!!! Do not ring bell unless on time (+ or - 5 min.) Phone number....lost it, find it! Inspectors see rule #2. No exceptions (T-14, 23-24; P's Exh. 4). Ms. Mantovani formed the impression that people were inside the establishment (T-15, 18) The Respondent told Ms. Mantovani that although she parked her car at the licensed premises, she frequently walked to lunch in the neighborhood. Ms. Mantovani contacted the Respondent by telephone without difficulty. The Respondent told Ms. Mantovani that she did not live at the licensed premises; that she was there only for appointments; and she would make herself available for Ms. Mantovani for inspection purposes. Ms. Mantovani advised the Respondent that the Petitioner made unscheduled inspections. The Respondent told Ms. Mantovani that she could not promise that she would be at the licensed premises when Ms. Mantovani was in Daytona. The Respondent also stated that it was her practice not to answer the door, except to receive scheduled patrons. Ms. Mantovani refused to schedule an inspection, or to call and ascertain that the Respondent was available and inspect at that moment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the charges be dismissed. DONE AND ENTERED this 21st day of February, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 21st day of February, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-6559 Petitioner's Proposed Findings of Fact 1-15. Adopted. 16-17. Rejected as contrary to more credible portion of Ms. Mantovani's testimony. 18. Adopted and moved to Paragraph 3. COPIES FURNISHED: Anna Polk, Executive Director Board of Massage Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Lois B. Lepp, Esq. Department of Professional Regulation Northwood Centre, Suite 60 1940 N. Monroe Street Tallahassee, FL 32399-0792 Rita Brigugulio 643 Tanglewood Daytona Beach, FL 32114
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)
The Issue The ultimate issue for determination at formal hearing was whether Respondent committed the offenses set forth in Petitioner's Administrative Complaint, and if so, what disciplinary action should be taken against Respondent's massage license.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Chapters 455 and 480, Florida Statutes, and rules promulgated pursuant thereto. Respondent is a Florida licensed massage therapist and has been at all times material hereto, having been issued license number MA 0012000. Respondent had been licensed for one (1) year prior to the alleged incidents and has performed approximately 700 massages, with approximately 300 of them being performed on women. In August 1992, P. G. was suffering from tension in her neck, so she contacted Respondent for a massage. P. G. was acquainted with Respondent as a result of them attending the same church and participating for six weeks in "prosperity classes" which met once a week. Respondent agreed to give her a massage at her home. At no time prior to this had P. G. had a massage. In the afternoon, on a day in August 1992, Respondent came to P. G.'s home to give her the massage. He brought with him a table and a sheet. P. G.'s husband was at home when Respondent arrived and was in another room in the home during the first half of the massage. The massage lasted approximately one hour and 15 minutes. Before beginning the massage, Respondent did not obtain any medical or health history from P. G. Also, Respondent gave P. G. the option of being draped with her underwear on or nude. P. G. chose to keep her underwear on. Respondent massaged P. G.'s neck, arms, shoulders, back, legs, feet and breasts. Throughout the massage, P. G. and Respondent conversed continuously. At one point, Respondent told her that she had a great body and that if she ever wanted to get rid of her husband he was available. P. G. did not take Respondent's comments seriously and dismissed them. When Respondent was massaging P. G.'s arms and shoulders, she was lying in a prone position with her arms and hands outstretched forward and with him standing in front of her. Several times, during this part of the massage, when Respondent leaned forward, he brushed his penis against her hands. Prior to massaging P. G.'s breasts, Respondent did not discuss massaging her breasts with her. Also, throughout the massage of P. G.'s breasts, Respondent used his hands to manipulate her breasts and manipulated her nipples. At one point during the massage, Respondent touched P. G.'s vaginal area and began stroking her clitoris. P. G. described Respondent's action as a "stimulation" of her clitoris in a sexual manner "like your husband would do." When Respondent did this, P. G. immediately asked Respondent if this was part of the massage. He asked her if she wanted him to do this and she said no. Respondent ceased and did not do it again. After the massage was over, P. G. paid Respondent $20 or $30, she did not recall which. Additionally, she walked Respondent to his vehicle and requested that he leave some of his advertising material with her, which he did. P. G. reported the incident to Petitioner after her twin sister informed her that Respondent should not have touched her vaginal area and nipples. Approximately two months later, on or about October 1, 1992, S. K. came to Fort Lauderdale, Florida, from California for her father's funeral. After his funeral, she was very stressed and wanted to get a massage. For S. K., massages were therapy, relieving her of stress, and she had been receiving massages for approximately 10 years. Also, S. K. is a licensed massage therapist in the State of California. On or about October 3, 1992, a Sunday, S. K. called Respondent after selecting him from his advertisement in the yellow pages. Respondent agreed to perform a massage on her that same day in the afternoon at his home. After arriving at Respondent's home, he directed S. K. to a small room which contained a massage table. She undressed completely and was provided with a small rectangular sheet about the width of her body for draping. Prior to the massage, S. K. and Respondent discussed areas in particular that S. K. wanted massaged, i.e., shoulders, neck, and lower back. Further, she requested that Respondent use a special oil that she brought with her, and he agreed to do so; she felt "safe" with the smell of the oil. At no time did Respondent take any medical or health history from S. K. S. K.'s massage lasted for approximately one hour. Respondent talked continuously during the entire massage, relating his real estate dealings. Respondent began the massage by having S. K. lie on the massage table in a prone position. He placed the small sheet on her, leaving her buttocks uncovered. In the course of massaging the top of S. K.'s legs, Respondent brushed S. K.'s genital area, specifically her labia, very briskly at least six or eight times (three or four times on each leg). S. K. began to become suspicious of Respondent but did not object to Respondent's action. While S. K. was still in the face down position, Respondent massaged S. K.'s buttocks. During the massage of her buttocks, Respondent brushed his fingers over S. K.'s anus several times, causing her to believe that Respondent was doing this intentionally. However, S. K. did not object to Respondent's action, wanting to believe, instead, that what was happening really wasn't. Additionally, while in the prone position, Respondent massaged S. K.'s shoulders. She was lying with her arms and hands outstretched in the front of her and with Respondent standing in front of her. Several times, while manipulating S. K.'s shoulders, Respondent would brush his stomach and penis against her hands. Each time the brushing occurred, either with his stomach or his penis, S. K. would move her hands back, but the massage procedure would cause her hands to move forward again. S. K. objected to Respondent's action, and he stopped. When Respondent had S. K. to lie on her back, he did not cover her genital area with any kind of draping. She became angry, accused Respondent of not properly draping her, and proceeded to drape her genital area herself. While S. K. was still lying on her back, Respondent massaged her breasts with his hands. Respondent had not discussed massaging S. K.'s breasts before doing so. During the massage of S. K.'s breasts, Respondent manipulated her nipples with his hands. At the conclusion of the massage, S. K. paid Respondent $20 for the massage and gave him a $10 tip. Neither S. K. nor P. G. were acquainted with one another. Expert testimony was that draping is not universally taught in Florida's massage schools and that there is no universally accepted method of draping by massage therapists in Florida. When a massage therapist performs a massage on a client for the first time, the minimum standard of practice, according to expert testimony, requires the massage therapist to take the client's medical history. Obtaining the medical history guides the massage therapist in the client's massage, such as informing the therapist which areas of the body are appropriate for massage and which are not. A massaging of the breasts is not prohibited; however, according to expert testimony, the minimum standard of practice requires the massage therapist to (a) inform the client, prior to the massage, that the breasts will be massaged, (b) obtain the client's consent, and (c) use the client's hand to massage the breasts (massage through the client's hand). Additionally, the minimum standard of practice prohibits the manipulation of the nipples. Massaging of the genital area, according to expert testimony, is prohibited by the minimum standard of practice, unless the client's physician has ordered such a massage. No physician ordered a massage of the genital area for either P. G. or S. K. According to expert testimony, the anus is involved in a massage procedure referred to as colonic irrigation which is a gloved procedure and requires special equipment. The minimum standard of practice requires a massage therapist to obtain the client's consent for the procedure and requires the client to go through an advance procedure prior to the colonic irrigation massage. No colonic irrigation was performed on either P. G. or S. K.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Board of Massage enter a final order: Determining James J. Maes guilty of violating Subsection 480.046(1)(k), Florida Statutes, by violating Board of Massage Rule 21L-30.001(1)(d), Florida Administrative Code, as set forth in the Administrative Complaint; and Imposing an administrative penalty of five years suspension. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of April 1993 ERROL H. POWELL 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 16th day of April 1993. APPENDIX Rulings on findings proposed by the Petitioner. 1-6. Rejected as subordinate to Findings of Fact 23-27. Adopted in Finding of Fact 25, except for the reference to appropriate draping which is rejected. Expert testimony revealed that there was no universally accepted method of draping. See Finding of Fact 23. Adopted in Finding of Fact 27. Adopted in Finding of Fact 26. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 11. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Rejected as unnecessary. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12. Rejected as unnecessary. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Rejected, see Finding of Fact 23. Adopted in Finding of Fact 17, except the reference to the clitoris which is rejected. Taking the deposition testimony about S. K.'s clitoris and labia indicates that S. K. meant her labia, not her clitoris. Adopted in Finding of Fact 18. Adopted in Finding of Fact 20, except the reference of failing to properly drape which is rejected. See Finding of Fact 23. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Rulings on findings proposed by the Respondent. Client I Adopted in Findings of Fact 3 and 4, except the reference to the date which is rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented, except as to P. G. wearing panties throughout the massage which is adopted in Finding of Fact 5. Rejected as contrary to the evidence presented, except as to the last sentence which is adopted in Finding of Fact 10. Client II Adopted in Finding of Fact 13. Rejected as contrary to the evidence presented, except for the expert testimony on draping which is adopted and modified in Finding of Fact 23. Rejected as contrary to the evidence presented. Rejected as contrary to the evidence presented, see Finding of Fact 17. Rejected as contrary to the evidence presented, see Finding of Fact 20. Rejected as contrary to the evidence presented, see Finding of Fact 18. Rejected as unnecessary and contrary to the evidence presented, except the reference to the tip which is adopted in Finding of Fact 21. COPIES FURNISHED: Susan E. Lindgard, Esquire Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 James J. Maes 1498 Northeast 34th Court Oakland Park, Florida 33334 Anna Polk, Executive Director Board of Massage Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent violated Section 480.046(1)(c), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with the duty to regulate the practice of massage therapy in Florida. At all time relevant to this proceeding, Respondent was licensed to practice massage therapy, holding license No. MA0020209. In September 1997, Respondent provided massage therapy treatment on three occasions to a client, M.J. The treatment was intended to be therapeutic for injuries suffered by M.J. in an automobile accident. The last of the massage therapy sessions occurred on September 19, 1997, at the home of M.J.'s mother. M.J. subsequently filed a formal complaint with the Duval County Sheriff's Office. The complaint alleged that Respondent touched M.J.'s breast and nipple inappropriately during the September 19, 1997, massage therapy session. On November 24, 1997, the State Attorney, in and for Duval County, Florida, filed an Information, charging Respondent with misdemeanor battery in violation of Section 784.03(1)(a), Florida Statutes. In a jury trial on April 15, 1998, Duval County Court Case No. 97-66371 MM, Respondent was convicted of simple battery, a criminal violation of Section 784.03(1)(a), Florida Statutes. The above-referenced criminal conviction arose directly out of Respondent's massage therapy session with M.J. on September 19, 1997. Respondent would not have been charged with and convicted of simple battery but for Respondent's massage therapy practice on M.J. Respondent had to pay a $200 fine and $115 in court costs as a result of his criminal conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $500 and assessing costs of investigation and prosecution. DONE AND ENTERED this 10th day of October, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of October, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Stop 39 Tallahassee, Florida 32308 Stanley Michael Carroll 1535 San Juan Avenue Jacksonville, Florida 32210 William H. Buckhalt, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
