The Issue The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of provisions of Florida Administrative Code Rule 64B7- 26.010 and sections 480.046(1)(o) and 480.0485, Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Massage Therapy, is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. At all times material to this proceeding, Ms. Xu was a licensed massage therapist in the state of Florida, holding license number MA56426. During all times relevant to the complaint, Ms. Xu was employed by Massage Elite, located at 800 East Hallandale Beach Boulevard in Hallandale Beach, Florida. On November 22, 2010, Officer F.C., working in an undercover capacity with Officer C.T., went to Massage Elite, where they were greeted by Ms. Xu, who introduced herself as Diana. Ms. Xu stated that a one-hour full body massage was $70.00. They each paid, and Officer F.C. was taken to a separate room and told to disrobe and lie face down. Minutes later, Ms. Xu came into the room and began a massage. After some time, Ms. Xu asked Officer F.C. to turn over. After he did so, Ms. Xu began touching Officer F.C. on his penis, asking, "Do you want me to massage this?" Officer F.C. asked her, "How much?" Ms. Xu replied, "Sixty dollars." Officer F.C. said he only had $30.00, and Ms. Xu replied, "No, not for thirty, maybe next time." The massage was then completed. On November 23, 2010, Officer F.C. returned to Massage Elite. Other arrests were made at that time, but Ms. Xu was not on the premises. On November 30, 2010, Officer F.C. returned to Massage Elite with Officer R.A. He asked for Diana, and they called her from the back. Ms. Xu came in. Officer F.C. made a positive identification, based upon her appearance, that Ms. Xu was the same woman who had earlier introduced herself to him as Diana, and had given him the massage. She was placed under arrest. Ms. Xu's contrary testimony, to the effect that she was not at work on November 22, 2010, that she had never seen Officer F.C. before November 30, 2010, is not credible, and is rejected. Ms. Wei Zhou, Ms. Xu's daughter, testified through deposition that she came to Florida for Thanksgiving in 2010, and that her mother stayed with her the entire time in a hotel. She said she could not remember exactly when she was there or if she arrived before or after Thanksgiving Day. At another point in her testimony, she said she arrived around the 19th or 20th of November. She said she couldn't remember if her grandmother traveled with her or not. She indicated that she did not know what kind of work her mother did. Her testimony, to the extent it was intended to establish that Ms. Xu did not work at Massage Elite on November 22, 2010, was not credible. Her vague account of events did not cast doubt on Officer F.C.'s clear and convincing testimony. As noted in the deposition testimony of Ms. Jennifer Mason, there is no reason for a licensed massage therapist to ever touch the genitalia of a patient. Officer F.C. paid for a massage, and Ms. Xu began to give him a massage. She was governed by the requirements of the massage therapist-patient relationship. Ms. Xu's actions on November 22, 2010, were outside the scope of generally accepted treatment of massage therapy patients. Ms. Xu used the massage therapist-patient relationship to attempt to induce Officer F.C. to engage in sexual activity and to attempt to engage him in sexual activity. Ms. Xu engaged in sexual misconduct in the practice of massage therapy. There is no evidence that Ms. Xu 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 Department of Health, Board of Massage Therapy, enter a final order finding Ms. Ranjie Xu in violation of Florida Administrative Code Rule 64B7-26.010 and section 480.0485, Florida Statutes, constituting grounds for discipline under section 480.046(1)(o), Florida Statutes; revoking her license to practice massage therapy; imposing a fine of $1000.00; and imposing costs of investigation and prosecution. DONE AND ENTERED this 4th day of April, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2017.
The Issue Whether Respondent violated Sections 480.46(1)(h),(k), Florida Statutes, and Rule 64B7-30.001(1)(d) (formerly 61G11- 30.001(1)(d), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Health, Board of Massage Therapy (Department), is the state agency charged with regulating the practice of massage therapy pursuant to Chapter 480, Florida Statutes. Respondent, Morton Wexler (Wexler), is and has been at all times material to this proceeding a licensed massage therapist in the State of Florida, having been issued license number MA 0021664. In November, 1996, Wexler began working at Beauty Dynamics as a massage therapist. Wexler is 71 years old and has been blind since approximately 1990 due to glaucoma; however he can make out shapes and forms. On or about, January 10, 1997, C. C. went to Beauty Dynamics to receive a massage. Wexler was assigned to perform the massage on C. C. Wexler massaged the back of C. C.'s legs and arms and C. C.'s back. He asked C. C. to turn and lie on her back. A towel covered C. C.'s body from her shoulders to her feet. Wexler began to massage the back of her neck. C. C. told Wexler that she had a knot in her neck area and asked him to work on the knot. Instead of working on the knot, Wexler slipped his hands under the towel, down C. C.'s chest and touched her breasts. C. C. told him not to do that. Wexler again put his hands on and around C. C.'s breasts, pinched her nipples, and moaned. At that juncture, C. C. pulled the towel up and told him to get out of the room. Wexler did not leave at that time. He apologized and said that he did not know what came over him. He said, "I couldn't help myself. I stopped being a massage therapist and became a man." Wexler still did not leave the room, but started to massage C. C.'s feet. C. C. got face to face with him and told him to get out. Wexler went to his employer, Darlene Heckelmoser Sanders, and told her not to charge C. C. for the massage because there had been a misunderstanding. He did not fully explain the situation at that time. C. C. was not charged for the massage. After C. C. left Beauty Dynamics, Wexler told Ms. Sanders that he had touched C. C.'s breasts. He explained that the towel fell off, exposing C. C.'s breasts and that he could not help himself. He told her, "I guess I became a man instead of a massage therapist." Later in the day, C. C. called Ms. Sanders and told Ms. Sanders that Wexler had touched her breasts, squeezed her nipples and moaned. Ms. Sanders terminated Wexler's employment with Beauty Dynamics. At the final hearing, Wexler acknowledged that it was not appropriate for a massage therapist to touch the erectile tissue of a client, including the client's nipples.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Morton Wexler guilty of violating Sections 480.046(1)(h), (k), Florida Statutes, and Rule 64B7-30.001(1)(d), Florida Administrative Code, and suspending his massage therapist license for two years. DONE AND ENTERED this 8th day of May, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building COPIES FURNISHED: Joe Baker, Executive Director Board of Massage Therapy Department of Health 1940 North Monroe Street 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 8th day of May, 1998. Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Craig A. McCarthy, Esquire Agency for Health Care Administration Division of Medical Quality Assurance Post Office Box 14229 Tallahassee, Florida 32319-4229 Morton Wexler, pro se 171 South Hampton Drive Jupiter, Florida 33458
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 The issue in this case is whether Respondent, Hae Suk Bornholdt, committed the offense alleged in an Amended Administrative Complaint issued June 12, 2000, and, if so, what penalty should be imposed upon Respondent.
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. Chapters 20, 456, and 480, Florida Statutes. Respondent, Hae Suk Bornholdt, applied for licensure as a massage therapist in the State of Florida on December 1, 1999. Ms. Bornholdt's application for licensure was approved and she was licensed as a massage therapist in the State of Florida effective December 28, 1999. Respondent's license number is MA 30419. At all times relevant to this proceeding, Ms. Bornholdt was employed by Fame Limited, Inc. (hereinafter referred to as "Fame"). Fame is located at 4799 North Federal Highway, Boca Raton, Florida. Fame is a massage establishment. On December 2, 1999, an undercover policy investigation was begun of Fame in response to anonymous complaints of sexual activities between massage therapists and male clients of Fame. Robert F. Flechus, a detective with the Boca Raton Police Department, entered Fame posing as a client. Detective Flechus paid $80 for a massage. He was greeted by Ms. Bornholdt, who identified herself as "Tina." Ms. Bornholdt led Detective Flechus to a locker room where he undressed, left his clothes in a locker, and wrapped a towel around himself. Detective Flechus took a sauna and was then led by Ms. Bornholdt to a shower room where he showered. Ms. Bornholdt washed Detective Flechus, including his buttocks, with a sponge. After showering, Ms. Bornholdt led Detective Flechus into a room where she gave him a massage. During the massage, Ms. Bornholdt suggested that Detective Flechus masturbate while she massaged his stomach. When he refused, Ms. Bornholdt took Detective Flechus' hand and attempted to place it on his penis. Detective Flechus immediately pulled his hand away. Ms. Bornholdt then removed the towel that was partially covering Detective Flechus' genitalia and began to stroke his penis. Detective Flechus stopped Ms. Bornholdt and got up off the massage table. Ms. Bornholdt failed to properly drape Detective Flechus when she allowed his penis to be exposed to her during the shower and while he was on the massage table. Ms. Bornholdt was not licensed as a massage therapist on December 2, 1999. Ms. Bornholdt acted as a massage therapist with Detective Flechus and other clients prior to receiving her license on December 28, 1999. Detective Flechus' testimony in this matter was clear, consistent, and credible. Ms. Bornholdt's testimony on the other hand was inconsistent, unconvincing, and not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Massage Therapy finding that Hae Suk Bornholdt committed the offense alleged in the Amended Administrative Complaint issued on June 12, 2000; it is further RECOMMENDED that the Board of Massage revoke Ms. Bornholdt's license to practice massage therapy and assess the costs of investigating and prosecuting this case. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 16th day of August, 2000. COPIES FURNISHED: Dennis G. King, Esquire Rudolph C. Campbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Mail Stop 39 Tallahassee, Florida 32308 Lawrence K. Fagan, Esquire LaValle, Brown, Ronan & Soff 750 South Dixie Highway Boca Raton, Florida 33432 William H. Buckhalt, Executive Director Board of Massage Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue The issues in these consolidated cases are whether Respondent committed sexual misconduct as charged in the Administrative Complaints, and, if so, what penalty should be imposed.
Findings Of Fact The Department is charged with regulating the practice of massage therapy pursuant to chapters 456 and 480, Florida Statutes. At all times material to this case, Respondent was a licensed massage therapist in Florida, having been issued license number MA 11149. Respondent has practiced massage therapy for approximately 30 years. Client M.S., DOAH Case No. 20-4754PL On January 10, 2018, M.S. completed her initial client intake form with Respondent which contained several sections. M.S. wrote that she suffered from post-concussion syndrome. According to M.S., she was diagnosed with post-concussion syndrome and mild traumatic brain injury after a log fell on her head in August of 2017. Under the heading “concerns,” M.S. wrote: “I’m going crazy and losing memory completely—eyes burning.” Under “recent changes,” M.S. wrote: “loss of memory, confusion, irate, irritability, uncontrollable anxiety, depression, extreme vertigo, unable to focus or comprehend, extreme nervousness and feeling out of control emotions.” M.S. had four massage sessions with Respondent on January 10, 19, 24, and 31, 2018. M.S. removed her shoes but was otherwise fully clothed during all four massage sessions. The Department alleges that the sexual activity occurred during M.S.’s fourth and final session on January 31, 2018. Specifically, the Department alleges that Respondent touched M.S.’s labia with his fingers, rested his fingers on M.S.’s vagina, and cupped her vagina.2 During her testimony, M.S. demonstrated how Respondent touched her vagina. Using her own hand to demonstrate, M.S. placed her hand above her vagina with her fingers pointed in a horizontal position. M.S. did not indicate that Respondent “cupped” her vagina during this demonstration. Respondent denies that he touched M.S.’s labia with his fingers, rested his fingers on her vagina, or cupped her vagina. Respondent’s testimony as to the touching that occurred during the January 31, 2018, massage session was credible and more precise than that of M.S. Respondent’s testimony is accepted over the testimony of M.S. where it conflicts. Dr. George Rozelle is the physician who owns the facility where Respondent performed massage therapy on M.S. The Department offered hearsay testimony from a witness who heard Dr. Rozelle say “not again” when M.S. told him that Respondent had touched her inappropriately during the massage session that occurred that day. The inference suggested by the Department is that Respondent had been previously accused of inappropriately touching other massage therapy clients on other occasions. 2 The Department also states in its PRO that Respondent touched M.S.’s breasts. The Administrative Complaint in DOAH Case No. 20-4754PL does not, however, identify the touching of M.S.’s breasts as a sexual activity that occurred when Respondent massaged her, and therefore cannot serve as a basis for disciplinary action in this case. Trevisani v. Dep’t of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Delk v. Dep’t of Prof’l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992). The testimony is hearsay for which the Department failed to establish an exception, and is unreliable because Dr. Rozelle did not testify to explain what he meant when he said “not again.” Even if Dr. Rozelle said “not again,” because there were one or more prior similar complaints about Respondent, such unproven allegations cannot be relied upon here to establish that Respondent had a propensity to commit sexual misconduct on massage therapy clients. § 120.57(1)(d), Fla. Stat. For all of these reasons, the “not again” statement is not accepted as evidence against Respondent. The Department failed to prove that Respondent engaged M.S. in sexual activity, or that Respondent touched M.S. in a manner that was intended to, or likely to, erotically stimulate himself or M.S. Client S.B., DOAH Case No. 20-4755PL S.B. presented to Respondent for massage therapy for the first time on August 15, 2017. S.B. completed a client information form indicating that the reason for her visit was “low energy, lost, depressed.” S.B. wrote that she experienced these conditions for four years, that they followed an undisclosed accident, trauma, or illness, and that they were aggravated by “life.” S.B. was seen by Respondent for massage therapy on nine different occasions on August 17 and 20, and October 10 and 19, 2017; January 16, 23, and 30, and February 6 and 15, 2018. Respondent was fully clothed during all the massage sessions with Respondent. S.B. testified that Respondent told her that he “loved” her and that he was “never going to leave” her during several visits, but she could not identify when Respondent made those statements. S.B also testified that Respondent told her that she may experience an orgasm when he applied pressure to her groin during a session, but she could not recall when that happened. S.B. testified that she returned to see Respondent for message therapy after he touched her groin and allegedly made the “orgasm” comment, but that she had another female massage therapist with her during the session. Additionally, S.B. testified that Respondent put his hands over her breasts during more than one session, but she could not say how often or when this occurred. S.B. denied that Respondent ever “grasped” her breasts and admitted that she never complained to Respondent about allegedly touching her breasts. Respondent denied that he told S.B. that he “loved” her, that he was “never going to leave” her, or that she might experience an “orgasm.” According to Respondent, he touched S.B.’s adductor muscles and pubic bone—not her vagina—to help reduce her complaint of hip pain during her third visit on October 10, 2017. S.B.’s testimony was imprecise and the facts to which she testified were not distinctly remembered. Respondent’s testimony is accepted over S.B.’s testimony where it conflicts. The Department failed to prove that Respondent engaged S.B. in sexual activity or that Respondent touched S.B. in a manner that was intended to, or likely to, erotically stimulate himself or S.B.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy, enter a final order dismissing the Administrative Complaints. DONE AND ENTERED this 26th day of May, 2021, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2021. COPIES FURNISHED: Mary A. Wessling, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Richard A. Greenberg, Esquire Rumberger Kirk & Caldwell 101 North Monroe Street, Suite 120 Tallahassee, Florida 32301 Julisa Renaud, Esquire Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Kama Monroe, JD, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 Ann L. Prescott, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
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)
