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)
Findings Of Fact Petitioner is a state licensing and a regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30 and Chapters 120 and 480, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Albert Abrev, is now and at all material times hereto was a licensed masseur in the State of Florida having been issued license number MA0007125 on December 19, 1986. Respondent's license is valid through December 31, 1990. Beginning in September of 1988, Respondent worked at an establishment known Geisha Massage, located 3222 South Dixie Highway in West Palm Beach, Florida. Geisha Massage has not been issued a license by the Board of Massage. Geisha Massage is a Florida corporation which was officially incorporated on July 5, 1988. Respondent is not an owner, incorporator or officer of Geisha Massage. On or about September 27, 1988, Officer Olsen of the West Palm Beach Police Department was directed by her supervisor, Detective David E. Henry, to perform an undercover investigation at Geisha Massage. The purpose of the investigation was to determine whether the establishment was involved in prostitution. On or about September 27, 1988, Officer Olsen entered Geisha Massage and posed as an applicant looking for work. Officer Olsen claimed to be responding to an ad placed in the newspaper. Officer Olsen was interviewed by the Respondent who advised her that she did not need a license because she would only being doing "body treatments or Swedish shampoo." Officer Olsen was requested to undress so that Respondent could determine how she reacted in front of a male without clothing. During the job interview, Respondent indicated to Officer Olsen by pointing to his mouth and to his groin and shaking his head that she would not be expected to engage in sexual intercourse or oral sex. However, Respondent indicated by a hand gesticulation that she would be expected to provide "hand jobs." Officer Olsen's interpretation of Respondent's gestures were confirmed by one of the other employees of Geisha Massage. Officer Olsen was told by Respondent that she was hired and that she was to return to work that evening. Respondent was the only licensed massage therapist on the premises at Geisha Massage. There were at least three female employees of Geisha Massage who provided "body treatments" to customers. None of these employees were licensed massage therapists at the time of the incidents in question. One of them, Victoria Ann Seely, was in the process of obtaining licensure. She took the examination in November of 1988 and received her license in December, 1988. Ms. Seely was a ten percent owner of Geisha Massage. The evidence established that patrons of Geisha Massage were masturbated for a fee upon request after their initial visit. On or about September 30, 1988, a customer of Geisha Massage, Kenneth Barnes, was masturbated and massaged by an employee of Geisha Massage. On September 30, 1988, Officer Olsen, and Detective Daniel Henry of the West Palm Beach Police Department entered Geisha Massage with a search warrant and arrested Respondent, Victoria Ann Seely and two other female employees of the establishment. On or about December 8, 1988, the Respondent pled guilty to a felony charge of operating a house of ill-fame. Adjudication of guilt was withheld and he was placed on two years probation. He has successfully completed probation. Respondent's plea of guilty was a "Alford" plea whereby he did not specifically admit the allegations against him but agreed to plead guilty because it was in his best interest to do so. Respondent testified that he agreed to plead guilty because he did not want to subject his wife and children to the publicity of a trial and further court proceedings.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Massage enter a Final Order finding the Respondent, Albert Abrev guilty of Counts I, II and IV of the Amended Administrative Complaint and that the Board of Massage revoke the Respondent's license. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28 day of September, 1990. J. STEPHEN MENTON 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 28 day of September, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 2. Rejected as irrelevant and not established by competent substantial evidence. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 8. 12.-14. Rejected as irrelevant. No evidence was introduced to establish that Respondent hired the employee in question or delegated any responsibilities to her. Adopted in substance in Findings of Fact 11. Rejected as irrelevant. 17.-18. Rejected as irrelevant. No competent substantial evidence was introduced to establish that Respondent any dealings with this particular customer. The customer was unable to positively identify Respondent. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 10. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as constituting legal argument rather than a finding of fact. The evidence did establish that Respondent entered a plea of guilty. See, Findings of Fact 13. As set forth in Paragraph 5 of the Conclusions of Law, the sealing of Respondent's criminal record is not retroactive and competent substantial evidence was introduced regarding the guilty plea. Rejected as subordinate to Findings of Fact 5 through 8. Addressed in Conclusions of Law 8. Addressed in Conclusions of Law 10. COPIES FURNISHED: Michael A. Mone, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Robert P. Foley, Esquire Foley & Colton, P.A. 406 North Dixie Highway West Palm Beach, Florida 33401-4298 Mildred Gardner Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750
Findings Of Fact At all times material to the allegations of this case, the Respondent has been licensed as a massage therapist in the State of Florida, license no. MA 0007093. The Department is the state agency charged with the responsibility under Florida law of regulating massage therapists. At all times material to the allegations of this case, the Department required that licensees obtain continuing education credits in order to renew massage therapy licenses. The license renewal card sent by the agency to the licensee requires verification that the licensee has met all continuing education requirements. Respondent executed a renewal notice form that represented she had met all requirements for license renewal, including the continuing education commitment. On November 5, 1993, the Department issued a letter to Respondent advising her that her license had been randomly selected for audit for the continuing education requirements for the period January 1, 1991 through January 31, 1993. By such notice, Respondent was requested to complete an audit form and to attach proof of attendance for the continuing education courses attended for the audit period. In order to qualify for acceptance, continuing education courses must be approved by the Department. Courses which have not received approval may not be counted to fulfill continuing education requirements. The Respondent filed a response to the audit including courses which had not been approved by the agency. In follow-up, the Department, by form notice dated December 7, 1993, advised the Respondent that her audit was incomplete. More specifically, the Department advised Respondent that the provider of the continuing education (CE) identified by Respondent was not an approved provider and that the number of courses of approved CE did not show attendance of at least twelve hours. To date, the Respondent has not provided proof of compliance with the CE requirements of the Department. Courses which Respondent attended in connection with another license held by Respondent (nurse), do not comply with the criteria for her license as a massage therapist. Respondent is aware of the different Boards and regulations pertaining to the licenses she holds.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business and Professional Regulation, Board of Massage, enter a final order revoking Respondent's license as a massage therapist and imposing an administrative fine in the amount of $1,000.00. DONE AND RECOMMENDED this 29th day of August, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 29th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0148 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 14 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Susan Lindgard Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Diana Wentworth 1500 Pelican Lane Vero Beach, Florida 32963-2644 Anna Polk Executive Director Board of Massage Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Did Respondent, Cameron Kellogg, L.M.T., attempt to induce patient, L.R.A., to engage in sexual activity as prohibited by section 480.0485, Florida Statutes (2018)?1/
Findings Of Fact Section 20.43 and chapters 456 and 480, Florida Statutes (2019), charge the Florida Department of Health and the Board with licensing and regulating massage therapy. At all times material to the allegations of the Administrative Complaint, Mr. Kellogg was a licensed massage therapist. In August of 2018, Mr. Kellogg was providing massage therapy services for guests of the Opal Sands Resort and Spa (Opal Sands). L.R.A. and her husband G.A. were guests at Opal Sands. August 30, 2018, was their last full day there. L.R.A. scheduled a massage for that day. Before the scheduled time, L.R.A. and G.A. were relaxing at the pool. They had a drink at the pool. There is no credible evidence indicating that either became intoxicated. L.R.A. left the pool to attend her scheduled massage. G.A. stayed at the pool to wait for her. When L.R.A. arrived at the spa, she was directed to a changing area. She removed her clothes and bra, leaving on her underwear, and put on a robe supplied by the spa. Afterwards she met Mr. Kellogg in the waiting room, and he escorted her to the massage room. He left the room. She removed the robe and laid face down on the table covered with a drape. The massage began uneventfully. Midway through the massage L.R.A. turned over at Mr. Kellogg's request. This is typical in massages. During the massage, as is normal, L.R.A. became more and more relaxed, to the point of drowsiness. At the end of the massage period, Mr. Kellogg was standing at L.R.A.'s head massaging her shoulders and clavicle. He slowly moved his hands beneath the drape and began groping and fondling L.R.A.'s breasts. Then he pinched her nipples. L.R.A. was shocked and astonished. Naked and vulnerable, she was speechless and embarrassed. Then Mr. Kellogg asked her if she wanted him to perform oral sex saying, "Do you want me to eat your p---y?" Still speechless and shocked, L.R.A. shook her head no several times vigorously. Mr. Kellogg said "OK" and left the room. The actions described in findings six and seven are not part of an appropriate massage and were not invited or consented to by L.R.A. in any way. Mr. Kellogg violated the massage therapist-patient relationship and used it to attempt to induce L.R.A. in sexual activity. His actions were also sexual activity engaged in through direct contact with L.R.A. Still in shock, L.R.A. dressed, went to the front desk, and signed to charge the massage to her room account, leaving a $5.00 tip. She returned to the pool to meet her husband. She was in emotional distress and trying to decide how to tell her husband of Mr. Kellogg's assault. After meeting and talking a while at the pool, L.R.A. and G.A. went to their room to shower. Afterwards they left the resort and walked to a nearby souvenir and ice cream stand. After leaving the stand, L.R.A. asked her husband to sit down because she had something to tell him. This was only two hours after Mr. Kellogg groped her. During that time L.R.A. was processing her reactions and shock and thinking about how to tell her husband. She recounted the events to G.A., but did not repeat Mr. Kellogg's crass language, at first. She did not tell him about Mr. Kellogg pinching her nipples until a few weeks later. She thought those details would cause too much stress and anger on top of the other events. L.R.A. and G.A. decided that reporting Mr. Kellogg's behavior to the resort management was important and returned to Opal Sands. They told the front desk attendant that they needed to speak to the manager about something that happened in the spa. The attendant asked if they wanted the manager to come to their room. They said yes. The spa manager, Lexandra Gheradini, came to the room of L.R.A. and G.A. They told her about Mr. Kellogg's actions and request to perform oral sex. Ms. Gheradini apologized. But she did not ask them to complete any paperwork to document the assault. The resort only refunded the charge for the massage. L.R.A. reported Mr. Kellogg's actions within a reasonable period of time given her shock and embarrassment. At first she did not contact the police because of her embarrassment. Also, she and G.A. were preparing to leave the next day to return to their home in Pennsylvania. In Pennsylvania, L.R.A. told her friend K.E. about the incident. K.E. encouraged L.R.A. to report the incident to the police. L.R.A. reported it to the Clearwater police. She also reported the incident to the Florida Department of Health. The videotaped depositions provided clear and distinct views of the faces of L.R.A. and G.A. while testifying. Their facial expressions, body language, and reactions to Mr. Kellogg's questions made their testimony compelling and persuasive. Mr. Kellogg denied touching L.R.A.'s breasts. Mr. Kellogg, although he testified in person, was not persuasive. The majority of his testimony was argument about why L.R.A.'s testimony should not be accepted and complaints about how the charges have affected him. His denials were brief and unpersuasive. In addition, Mr. Kellogg testified that "I asked to eat her p---y." He minimizes this as "saying something stupid." Mr. Kellogg argues that L.R.A., G.A., and K.E. should not be believed because, when testifying a year after events, they do not remember some details. The argument is not persuasive. Forgetting some details peripheral to a shocking event a year afterwards is not unusual. The memories of L.R.A., G.A., and K.E. are distinct, clear, and consistent on the important facts. In addition, L.R.A.'s prompt reports of the incident to G.A. and the spa manager enhance her credibility. So too does the consistency of her description of events to K.E. Mr. Kellogg's testimony corroborates half of L.R.A.'s account. The record contains no evidence suggesting any motive for L.R.A. to fabricate her account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Florida Department of Health, Board of Massage Therapy, enter a final order: Finding that Respondent, Cameron Kellogg, LMT, violated section 480.0485, Florida Statutes. Revoking the license of Cameron Kellogg, L.M.T. Imposing a fine of $2,500.00 on Cameron Kellogg, L.M.T. Assessing costs of the investigation and prosecution of this case against Cameron Kellogg, L.M.T.,to be paid to Petitioner, Florida Department of Health. DONE AND ENTERED this 30th day of September, 2019, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2019.
The Issue The issues in this case are whether Respondent, Mehdi Safdari, L.M.T., committed the offenses alleged in the Administrative Complaint issued August 8, 2001, and, if so, to what extent should his license be disciplined or should he be otherwise penalized.
Findings Of Fact Petitioner, the Department of Health, Board of Massage Therapy (hereinafter referred to as the "Board") is the state agency charged with the authority and duty to regulate the practice of massage therapy in the State of Florida. Pursuant to Subsection 20.43(3)(g), Florida Statutes, the Department of Health has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Board, as appropriate. Respondent, Mehdi Safdari, was a licensed massage therapist in the State of Florida at all times material to the allegations in the Administrative Complaint. Respondent's license number is MA 11488. He was originally certified on January 14, 1991; his current license will expire on August 31, 2003. The complainant, R.C., a 44-year-old female who has an associate's degree in social services from Hesston College in Hesston, Kansas, is a certified activities director. At all times material to the allegations in this matter, she was employed as an activities director at an assisted living facility, Altera Wynwood. On May 4, 2000, Respondent and another person presented an educational program on occupational therapy, physical therapy, and speech and massage therapy for the residents of Altera Wynwood. Incidental to the program, Respondent brought his massage chair and performed massages at the facility. On that day, Respondent performed a chair massage on R.C. R.C. had not known Respondent prior to that day. R.C. advised Respondent that she had been involved in an automobile accident and had injured three discs in her neck. Respondent suggested that she allow him to perform massage therapy on her to alleviate discomfort incidental to the neck injury. On May 15, 2000, R.C. presented herself to Respondent's place of employment for massage therapy. After disrobing, R.C. dressed herself in a hospital gown and towel which was provided. She wore the towel like a diaper. Respondent massaged R.C.'s head and neck and around her breasts. R.C. testified that Respondent "touched her genital area in a very, very subtle manner, almost as if it was an accident." The remainder of the "full body" massage consisted largely of leg stretching. On May 17, 2000, R.C. presented herself for a second massage. On this occasion she found no gown, but was provided a sheet and towel. During this massage, Respondent pulled down the sheet and exposed R.C.'s breasts without her consent. During the massage, Respondent touched R.C.'s breasts, but she was uncertain as to whether the touching was "out of line." Her next massage was on May 19, 2000. She again found only a sheet and towel in which to dress. During this massage, Respondent got up on the massage table and straddled R.C., sitting on her hips and buttocks with his legs on each side of her body. She advised him that the pressure of him sitting on her buttocks was causing her pain in the back, so he got off. At all times she was covered by the sheet and had the towel between her legs. Respondent did not advise her that he was going to straddle her nor did he have her permission to do so. On her fourth and final visit, she dressed herself in the sheet that was provided, but left her underpants on because she was having a menstrual period. After massaging R.C.'s upper body, Respondent turned her over on her stomach. He then got up on the massage table, straddling R.C., and pulled her underwear back. He then unzipped the zipper of his trousers and placed his penis between R.C.'s buttocks. Respondent was leaning up against R.C. and pumping against her. She advised Respondent that he was hurting her and, as a result, he got off. He then told her to lie on her side and face the wall; he then got up on the massage table beside her and with his full body began pushing up against her from behind. She was afraid she was going to be raped and was afraid to say anything. Respondent remained behind R.C. for a short period of time and then left. R.C. went to the bathroom and washed herself but did not discover any semen on herself. She then left, seeking to avoid Respondent. R.C. believed that she had been sexually assaulted and filed a report with an appropriate law enforcement agency. R.C.'s testimony in this matter was clear, consistent, and credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health, Board of Massage Therapy, finding that Mehdi Safdari violated Rule 64B7-26.010(1) and (3), Florida Administrative Code, Section 480.0485, Florida Statutes, and Subsection 455.624(1)(u), Florida Statutes (1999), as alleged in the Administrative Complaint issued on August 8, 2001; it is further RECOMMENDED that the Department of Health, Board of Massage Therapy, suspend Mehdi Safdari's license to practice massage therapy for a period of three (3) years, during which time he must present himself for examination and/or treatment by a psychiatrist licensed to practice medicine in the State of Florida, who, upon conclusion of his examination and/or treatment, shall opine to the Board of Massage Therapy that Respondent is not a threat to his patients as a prerequisite to Respondent returning to the practice of massage therapy; impose an administrative fine against Respondent of $3,000; and assess against Respondent the costs of investigating and prosecuting this case. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2002. COPIES FURNISHED: Scott L. Richardson, Esquire 126 East Jefferson Street Orlando, Florida 32801 Ruby Seymour-Barr, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 39 Tallahassee, Florida 32308 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, 339 Health Studio, Inc., was licensed as a massage establishment, having been issued license number MM0005810, and conducted business at 339 Northeast 167th Street, North Miami Beach, Florida. On December 19, 1995, Denise Quintela, an inspector employed by the Department of Business and Professional Regulations, visited the licensed premises to conduct an inspection. Ms. Quintela identified herself to the "front desk clerk," who allowed her admission ("opened the door") to the premises. (Transcript, page 10). Apparently, in the "office where the front desk clerk was sitting down," there was a sign posted which listed the services, and their prices, offered by the establishment, including a massage for $80.00. (Transcript, page 17). Following admission, Ms. Quintela "started opening the curtains to make sure there was people working," and, upon opening one of the curtains, she observed "a lady working there with a gentleman," "the lady was standing, and the gentleman was lying down, and she was performing a massage." (Transcript, pages 10 and 11). Observing such activity, Ms. Quintela asked the lady for her massage license, but received no response. Thereupon, the "front desk clerk" volunteered that "she doesn't have a license."1 (Transcript, page 11). By examination of the lady's driver's license, Ms. Quintela identified her as You Won Park. According to the Department's records, You Won Park was not then, nor had she ever been, licensed as a massage therapist in the State of Florida. (Petitioner's Exhibit 1). Apart from any inferences that could be drawn from the foregoing findings, the only proof offered regarding You Won Park's relationship with the Respondent was the following testimony of Ms. Quintela: DIRECT EXAMINATION * * * Q. And did you determine whether Ms. Park was employed at the 330 Health Studio? A. Yes. * * * CROSS-EXAMINATION * * * Q. Were there any documents showing that that lady was employed there that you saw? A. No. Q. Was the sole basis for your determining that she was employed there your seeing her there? A. She was working there, yes. Q. Do you know if she was paid a salary? A. At the moment, I didn't see any money exchanged, no. Q. Not just at the moment, I mean in the whole world: Have you any indication that she received payment -- either cash, checks -- A. No. Q. Anything of that nature? A. No. * * * Q. . . . So is the answer you don't know if she was employed there or not? A. Well, she was employed because she was working there. Q. Well -- A. And the lady -- the front desk clerk told me that she was an employee there. And I believe I put down how long she worked there. Did I? Q. You noted in the report three weeks. But you don't know that she was an employee, do you? A. (No response.) Q. I mean, you don't have any evidence that she was an employee or that she was being paid other than the fact that she was there; is that true? A. Right. * * * Q. You do not know, do you, whether any money was exchanged between the supposed patron or the person allegedly getting the massage and the lady supposedly giving the massage? A. No. * * * REDIRECT EXAMINATION * * * Q. Was there any discussion with regard to a fee? A. No. Q. In your investigative report, there's a reference to the amount of time that Ms. Park was working there. How did you make a determination how long Ms. Park was working at the establishment? A. I asked the person in charge -- the front desk clerk. . . . (Transcript, pages 13 through 16, and 18). Apart from the statements attributed to the "front desk clerk," the results of Ms. Quintela's inspection, as evidenced by her testimony, are ambiguous, and are not sufficiently detailed to provide a reliable foundation on which to base a conclusion, with any degree of confidence, as to what relationship, if any, existed between the Respondent and You Won Park. Notably, based solely on Ms. Quintela's observations, You Won Park's presence and activities were equally consistent with what one would expect of an employee practicing massage or a non-employee who Respondent was permitting to practice massage on the licensed premises.2 You Won Park's activities were also consistent with those of a volunteer, as where one would accord an acquaintance a rub down. As for the comments Ms. Quintela attributes to the "front desk clerk" regarding You Won Park's status on the premises, they too are ambiguous and lacking in adequate detail. In this regard, it is observed that the statements of the "front desk clerk" may have simply meant that You Won Park had "worked" on the premises for three weeks, which is not necessarily the same as being engaged as an "employee." Apart from the ambiguity of the statements attributed to the "front desk clerk," they are also hearsay, and not subject to a hearsay exception.3 Consequently, the clerk's comments cannot support the conclusion that You Won Park was Respondent's employee. In sum, it must be concluded that, due to the paucity of proof, Petitioner has failed to demonstrate that You Won Park was Respondent's employee.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be rendered which dismisses the Administrative Complaint. DONE AND ENTERED this 12th day of June, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1998.
