The Issue The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of chapter 480, Florida Statutes, as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The following Findings of Fact are based on the testimony presented at the final hearing, exhibits accepted into evidence, and admitted facts set forth in the pre-hearing stipulation. Petitioner is the State agency charged with regulating the practice of massage therapy pursuant to section 20.43, Florida Statutes; chapter 456, Florida Statutes; and chapter 480, Florida Statutes. At all times material to the Complaint, Respondent was licensed to practice massage therapy in Florida since April 27, 2016, having been issued license number MA81902. Respondent’s address of record is 3830 Williamsburg Park Road, Jacksonville, Florida 32257. She also maintains an address of 121 East Norwood Avenue, Apartment C, San Gabriel, California 91776. Respondent moved from her native country, China, to the United States in 2012. Respondent’s native language is Mandarin Chinese and her ability to communicate in English is very limited. The JSO Vice Unit is the law enforcement office which investigates prostitution at massage therapy establishments in Jacksonville. Detective N.E. has been a civilian law enforcement officer for approximately 13 years. He was working in the JSO Vice Unit on June 29, 2017. As a member of the vice unit, Detective N.E. has conducted approximately 10 to 20 undercover prostitution investigations of massage therapy establishments. On or about June 29, 2017, JSO conducted an undercover prostitution investigation at Luxury Massage located at 3830 Williamsburg Park Road, Suite 4, Jacksonville, Florida. Detective N.E. entered Luxury Massage undercover, posing as a client. Detective N.E. requested a 30-minute massage from Respondent, for which he paid Respondent $50. Respondent escorted Detective N.E. to a massage room where Detective N.E. completely disrobed and laid face down on the massage table. As Detective N.E. lay on his stomach, Respondent began performing a massage on him. A towel was covering him as he lay on his stomach. Respondent massaged Detective N.E.’s back, and she later asked him to flip over onto his back, which he did. While Detective N.E. was on his back, Respondent began massaging his chest. At some point, Respondent pointed to Detective N.E.’s penis. Then Detective N.E. asked Respondent “is $60 good?” Respondent nodded her head indicating, “yes.” Detective N.E. continued to ask Respondent questions, for example, whether Respondent would use oil and Respondent verbally responded, “yes.” When asked whether she had towels to avoid making a mess, Respondent again verbally responded, “yes.” Although Respondent did not testify at hearing, Respondent’s verbal responses were recorded on a concealed recording device as part of the investigation. At hearing, Detective N.E. testified that Respondent grabbed his penis after she pointed to it. However, there was no allegation that Respondent touched Detective N.E.’s penis in the police report, which was prepared following Respondent’s arrest. On cross-examination, Detective N.E. explained that Respondent’s touching of his penis is not routinely included in the police report. The undersigned finds it unusual that touching of genitalia would be excluded from a police report when conducting a prostitution investigation. Detective N.E.’s testimony on this point is not accepted. Respondent denied that she engaged in any sexual activity in her response to the Complaint. Based on the totality of the circumstances, the undersigned finds that Respondent offered to massage Detective N.E.’s penis for $60.00. After the encounter, Detective N.E. gave a signal and Respondent was arrested by other law enforcement officers who came on the scene. Respondent was positively identified by Detective N.E. on the scene and at the final hearing. Katelin Reagh is a licensed massage therapist and based on her education, training, and experience, she is accepted as an expert in massage therapy. Ms. Reagh opined that offering to massage a patient’s genitalia is not within the scope of practice for massage therapy. As noted in the deposition testimony of Ms. Reagh, there is no accepted practice within the scope of licensed massage therapy that allows a therapist to ever touch, or offer to touch, the genitalia of a patient. Respondent’s actions on June 29, 2017, were outside the scope of generally accepted treatment of massage therapy patients. Respondent used the massage therapist-patient relationship to attempt to engage Detective N.E. in sexual activity when she offered to massage Detective N.E.’s penis, by pointing at the detective’s penis and agreeing to accept $60 payment for the service. There is no evidence that Respondent has 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 the following: Ms. Fengyan Liu, L.M.T. in violation of section 480.0485 and rule 64B7-26.010; Revoking her license to practice massage therapy; Imposing a fine of $2,500; and Assessing costs in an amount to be determined by the Board. DONE AND ENTERED this 16th day of November, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2018.
The Issue The issues in this case are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of section 480.0485, Florida Statutes; engaged in improper sexual activity, in violation of Florida Administrative Code Rule 64B7-26.010; or failed to appropriately drape a client, in violation of section 480.046(1)(i); and, if so, what is the appropriate sanction.
Findings Of Fact The Department, Board of Massage Therapy, is the state agency charged with regulating the practice of massage therapy within the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. Mr. Pruneda is a licensed massage therapist within the state of Florida, having been issued license number MA 63779. Mr. Pruneda's current address and address of record is 18 Walcott Drive, Boynton Beach, Florida 33426. On or about November 13, 2016, Mr. Pruneda was employed at Shanti Ohm Spa at 321 Northeast Second Avenue, Delray Beach, Florida 33444. On or about November 13, 2016, Patient L.G., a 29-year- old female, received a massage from Mr. Pruneda. Patient L.G. had received massages about 20 times before, and had received a massage from Mr. Pruneda on one prior occasion. The spa was normally closed on Sundays, but Patient L.G. called and requested massage appointments for massages for herself and her fiancé for Sunday, November 13, 2016. Mr. Pruneda testified that when an appointment for a massage is made, the receptionist gives the names of the massage therapists and the patient chooses among them. However, Patient L.G. testified that she did not request Mr. Pruneda. In any event, the spa made special arrangements for Mr. Pruneda and another massage therapist to come in to the spa on that Sunday. On November 13, 2016, Patient L.G. said that after filling out some paperwork, Mr. Pruneda came into the reception area and that was when she first learned he would be her massage therapist. Before the massage began, Patient L.G. disrobed and lay face-down on the massage table and covered herself with a large draping. Patient L.G. was wearing her underwear but no bra. Patient L.G. testified that at the beginning of the massage, Mr. Pruneda spent an excessive amount of time massaging the backs of her legs and that the strokes were coming very close to her buttocks, making her feel uncomfortable. After he moved on to her lower back, the massage went quickly, and she said that she remembered wishing he would spend more time on her back. After her back, he massaged her arms. Then Mr. Pruneda asked Patient L.G. to turn over onto her back, and Patient L.G. complied. Patient L.G. credibly testified that when she turned over, Mr. Pruneda did not avert his eyes and that he then failed to properly drape her, so she had to cover her breasts with the blanket herself. She did not give consent for him to leave her undraped. Patient L.G. testified that Mr. Pruneda again spent an excessive amount of time massaging the tops of her legs and that she felt his hand going under the strap of her underwear. She testified that he then moved her underwear aside and touched her genital area. She testified that she told him "no, no, no, no." She said that her eyes were closed and that she was in shock and fear. Patient L.G. testified that he had his hand on her shoulder and said to her, "If you say no it is no, if you say yes it is yes." She said that he did not try to improperly touch her again. She said that she felt uncomfortable and she adjusted the blanket. She testified that Mr. Pruneda continued the massage on her arms, up to the top, and then massaged her shoulders. Patient L.G. did not give informed consent for Mr. Pruneda to remove the draping from her breasts. Patient L.G. did not give informed consent for Mr. Pruneda to adjust or remove her underwear. Mr. Pruneda agreed that he had performed a massage on Patient L.G. on one prior occasion, but his testimony was otherwise contrary to that of Patient L.G.'s in every relevant aspect. He denied that he exposed Patient L.G's breasts, failed to appropriately drape her breasts, pulled aside her underwear, or touched her genital area. He testified that he simply performed a deep tissue massage with the appropriate level of care and professionalism. Mr. J.N., Patient L.G.'s fiancé, testified that although he and Patient L.G. each had an appointment for a 60-minute massage, his massage was completed first, and he had to wait for 10 to 15 minutes for his fiancé to complete hers. He said that when she came out, he noticed discomfort on her face and asked her if everything was okay. She replied that it was. On the way home, he asked her two more times if everything was okay, receiving the same response. He testified that when they had almost arrived at the house, she finally told him that she had been the victim of sexual misconduct. Patient L.G. confirmed this account, explaining that she said nothing to her fiancé in response to his questioning until they were close to the house to avoid an incident at the spa. Patient L.G. testified that after she returned to the house, she called the spa to report what had happened and, a couple of days later, also contacted the police. Mr. Pruneda introduced Exhibit R-3, a "Square Sales List" from Shanti Ohm Spa, which contained entries dated November 13, 2016, showing a tip of $20 from Patient L.G. to "Jorge," and a tip of $20 from J.N. to his therapist. The list also shows a single line drawn through the tip of $20 from Patient L.G. There was speculation at hearing that this was because the tip was later returned to Patient L.G., but no evidence from spa personnel was offered to explain the entries on the list. Mr. Pruneda argues that Patient L.G. would not have left a tip had she actually been sexually assaulted. Patient L.G. admitted at hearing that she did leave a $20 tip for Mr. Pruneda. She stated that she believed if she failed to do so, her fiancé would realize something was wrong and that she wished to avoid an incident while at the spa. Mr. Pruneda introduced into evidence a copy of a November 14, 2016, posting from a social media internet site belonging to a business specializing in cosmetic makeovers. The document showed Patient L.G. after a cosmetic makeover and contained her comment stating, "Thank you so much . . . I had so much fun today and feel amazing!! Off to rock this photo shoot thanks to you ladies!!" While Mr. Pruneda argues that this social media posting showed that Patient L.G.'s attitude on November 14, 2016, was completely inconsistent with that of a person who had actually suffered a sexual assault on the previous day, this argument is not accepted. Patient L.G. admitted the posting, but explained that the appointment had been made some time before, could not be rescheduled, and that she was obliged to go on with the session in order to meet deadlines for her upcoming wedding. Both the original and the Amended Administrative Complaint also charged that Mr. Pruneda touched Patient L.G.'s breasts without her consent. Further, Ms. Mason, expert witness of Petitioner, testified by deposition, based in part upon her review of the administrative report that had been prepared, that she was of the opinion that Mr. Pruneda's improper touching of Patient L.G.'s breasts constituted sexual misconduct. Yet at hearing, no evidence of Mr. Pruneda improperly touching or trying to massage Patient L.G.'s breasts was presented.1/ At that time, Patient L.G., the only person who could have made such an accusation, testified: Q: Did Mr. Pruneda ever try to massage anywhere on your chest? A: He was massaging my shoulder area. But no. Patient L.G. testified that after the incident, she was very upset for a very long time. Mr. J.N. testified that Patient L.G. felt nervous and had breakdowns. He testified that their relationship had changed a little bit, but that they were working to make it better and improve it going forward. Patient L.G.'s testimony as to the events that took place at the Shanti Ohm Spa on November 13, 2016, was precise, clear, and convincing. Ms. Mason credibly testified that she was familiar with the standards of practice of massage therapists in Florida and that the failure to properly drape a patient without express permission falls below those standards. Mr. Pruneda was fired from Shanti Ohm Spa.2/ He was restricted from the practice of massage therapy on female patients and, at the time of hearing, was no longer working as a massage therapist. Ms. Escalas testified that she has been married to Mr. Pruneda for 20 years and had been with him several years before they were married. She testified that the charges against him have damaged their lives and that it has been shameful to have to admit that he was being investigated. She testified that he was now working in a cleaning company, and eventually, would be working at a shower door company, but was making less money than he made as a massage therapist. Ms. Lima testified that although Mr. Pruneda is not her biological father, he has been just like her father for 20 years. She said that he has always demonstrated high values as a person and that he has never acted badly in all of that time. She testified that the accusations have greatly damaged the family. Mr. Pruneda has been licensed as a massage therapist for 30 years. Mr. Pruneda has never had any prior discipline imposed in connection with his massage therapy license. The case management system of the Clerk and Comptroller of Palm Beach County, Florida, contains no record of felony, criminal traffic, or misdemeanor charges involving Mr. Pruneda.
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 Jorge L. Pruneda in violation of sections 480.0485 and 480.046(1)(i) and rule 64B7-26.010; imposing a fine of $3,500; revoking his license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 1st day of November, 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 1st day of November, 2017.
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 to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of section 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, Na Li was a licensed massage therapist in the state of Florida, holding license number MA71793. Between November 2013 and December 2013, Na Li was employed by A Golden Massage and Spa, located in Hallandale Beach, Florida, where she performed Swedish massages and deep tissue massages. During November and December 2013, M.B. assisted the Hallandale Police Department in a criminal investigation. On November 13, 2013, M.B., working in an undercover capacity with Detective R.S., went to A Golden Massage and Spa as a client seeking a massage. When M.B. and R.S. entered A Golden Massage and Spa, they were greeted by a woman who introduced herself as Cici. They told Cici that R.S. was M.B.’s boss, that he had just won some money in a casino, and that he was treating M.B. to a massage. R.S. paid for two massages and Cici led M.B. to a massage room and told him to disrobe. M.B disrobed and lay face down, covered by a towel. Na Li then came into the room and introduced herself as “Yumi.” She asked M.B. if he needed a massage in any particular place, to which he said “no.” Na Li put oil on her hands and began to massage M.B. from the neck down. Na Li was concentrating on M.B.’s lower back, and then removed the towel and began massaging M.B.'s buttocks and inner legs and thighs, occasionally touching M.B.'s testicles with the back of her hand. Each time Na Li touched M.B’s testicles, she would giggle. Na Li then asked M.B. to lie on his back. M.B. turned over, Na Li put a pillow behind M.B.’s head, and she covered his genitals with a towel. Na Li resumed massaging M.B., working his upper body, shoulders, and chest. Na Li then removed the towel and placed it to the side. Na Li began massaging M.B.’s upper thigh and again occasionally touched M.B.’s genitals with the back of her hand. She then indicated through gestures that M.B. should make a fist with his right hand and put it over his penis. When M.B. complied, she placed her own hand on top of M.B’s hand and began to move it in a circle and up and down. She was moving his hand, as M.B. testified, in a “masturbation way.” M.B. stopped Na Li and asked her “how much for her to do it.” Na Li giggled, and resumed massaging M.B. Then, a second time, she put his hand on his penis and her hand on top of his. Again, M.B. asked her how much. She replied “tip,” indicating that she would expect a better tip. M.B. did not agree to give a better tip, saying that his “boss” had his money. Na Li next began to massage M.B.’s arm, and worked down to his fingers. She then placed her face in M.B.’s left hand and tried to lick his middle finger. On December 4, 2013, M.B. again went to the A Golden Massage and Spa with R.S. as part of the continuing investigation. On this occasion, he paid for himself, and was again shown to a massage room. Na Li came into the room. M.B. and Na Li recognized each other, and Na Li giggled. She again asked M.B. if he needed a massage in any particular place; he again said no. She used oil and began to massage M.B., eventually removing the towel, massaging his thighs, and touching his testicles with the back of her hand. She began tickling M.B. and licking her lips while looking at M.B.’s penis. He asked her how much for her to “do it with her lips.” She giggled and continued tickling him, but gave no answer. When he again asked her how much, she said “no, no,” which M.B. interpreted as declining to engage in oral sex. M.B. did not ask that the draping covering his genitals be removed. He did not ask Na Li to touch his genitals or give her permission to do so on either November 13th or December 4th. Consistent with the testimony of Ms. Jennifer Mason, a licensed massage therapist and expert in massage therapy, there is no reason for draping to be removed during the course of a massage. If draping comes off by accident, it is usually put back on right away. There is no massage technique that requires the use of a massage therapist’s tongue or mouth. While massage of the buttocks and inner thigh of a male patient is sometimes appropriate, it should be done with careful draping and tucking of the drape to avoid inadvertent touching of the genitalia. There is never a reason for a massage therapist to touch a patient’s genitalia. Na Li’s actions on November 13 and December 4, 2013, were outside the scope of generally accepted treatment of massage therapy patients. Na Li’s contrary testimony, to the effect that she performed only standard massage techniques on M.B., was not credible and is rejected. Na Li used the massage therapist-patient relationship to attempt to induce M.B. to engage in sexual activity and to attempt to engage him in sexual activity. Na Li engaged in sexual misconduct in the practice of massage therapy. Na Li has never had any prior discipline imposed against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding Na Li in violation of section 480.0485, Florida Statutes, constituting grounds for discipline under section 480.046(1)(p), Florida Statutes; imposing a fine of $2,500.00; revoking her license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 23rd day of September, 2015, 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 23rd day of September, 2015. COPIES FURNISHED: Kristen M. Summers, Esquire Oaj S. Gilani, Esquire Brynna J. Ross, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Simon Patrick Dray, Esquire S. Patrick Dray, P.A. Penthouse I 40 Northwest Third Street Miami, Florida 33128 (eServed) Christy Robinson, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-3257 (eServed) Daniel Hernandez, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue The issues presented in this case are whether Respondent has violated the provisions of chapters 456 and 480, Florida Statutes, as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The following findings of fact are based on the testimony, evidence admitted at the formal hearing, and the agreed facts in the pre-hearing stipulation. The Department is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43, Florida Statutes, and chapters 456 and 480. At all times material to the allegations in this case, Respondent was licensed to practice as a massage therapist in the State of Florida, having been issued license number MA 79509. At all times material to the allegations in this matter, Respondent was employed as a massage therapist at Daytona College, in Daytona Beach, Florida. Respondent’s address of record is 10 Spanish Pine Way, Ormond Beach, Florida 32174. S.W. is a licensed mental health counselor who has been licensed for approximately 22 years. She resides in Clermont, Florida, which is where she lived at the time of the massage. In July 2017, S.W. and C.W., her 23-year-old daughter, traveled to the Daytona Beach area to visit S.W.’s elderly mother. On July 19, 2017, S.W. and C.W. went to Daytona College, for the first time, for a massage. Upon arriving at the school, they were greeted by the receptionist. S.W. and C.W. were scheduled for 80-minute massages to take place at 3:30 p.m. However, the ladies arrived ten minutes late, so the massages began late. Upon arrival, the ladies were asked whether they needed to use the restroom, which they did. After using the restroom, the ladies were taken to the massage area for their services. S.W. selected the male massage therapist based on her past positive experiences with male therapists. S.W. had received a number of massages in the past, including massages by men. She allowed her daughter to be scheduled with the female massage therapist because she believed her daughter preferred a woman. S.W. was scheduled for a massage with Respondent, and C.W. was scheduled with Elizabeth Branson. Respondent escorted S.W. to the massage room first. Ms. Branson escorted C.W. to the room a few minutes later. As Respondent escorted S.W. to the massage room, S.W. described the areas in which she wanted special attention, including her neck, shoulders, scalp, and feet. Respondent asked S.W. whether she needed massage in the sciatic area. S.W. had problems in the sciatic area, so she consented to have the area massaged. The common room where massages occurred at Daytona College contained eight massage tables separated by curtains. Respondent took S.W. into the massage room and instructed her to undress to her comfort level. Respondent left the room while S.W. undressed down to her underwear. When Respondent reentered the room, S.W. was draped with a sheet. Respondent tucked the drape into S.W.’s underwear and lowered it onto her buttocks. A short time later, S.W. could hear her daughter in the area near her, but she could not see her. C.W. whispered to S.W. to let her know she was in the room. At some point, S.W. heard her daughter exit the room. C.W. finished her massage before S.W., even though S.W.’s service began before C.W.’s. C.W. recalled that her mother was unusually quiet during the massage instead of being “chatty,” as she normally would be. C.W. waited in the hallway outside the massage room for four or five minutes for S.W.’s massage to finish. After S.W. came out of the massage room, C.W. immediately noticed that something was wrong. When S.W. exited the room, she was “wired” and not relaxed, as she would normally appear after a massage. C.W. described her as appearing nervous and agitated. C.W. could tell that something was wrong, but S.W. did not say anything at that time. The two ladies walked to the front desk. As was her routine, S.W. paid for both massages and left a $10 tip. She did not make a complaint regarding the massage with the receptionist before leaving the school. Concerned regarding her mother’s behavior, C.W. asked S.W. what happened. S.W. stated that something weird happened. The ladies left the school and began driving to their destination. S.W. continued to be upset and ultimately, began crying. She was so upset that initially, she could not articulate what occurred. S.W. ultimately told C.W. that Respondent had placed his hand under her underwear and touched her clitoris. S.W. contacted her friend Mike, a law enforcement officer. S.W. explained to Mike what happened, and he suggested that she contact the police to report what happened to her. S.W. and C.W. called the police and requested that an officer meet the ladies at Daytona College. They also contacted the school and advised them that S.W. had been inappropriately touched during her massage. They arrived back at the school approximately 20 minutes later. The officer arrived shortly after S.W. and C.W. The officer interviewed S.W. and she reported to him that while massaging her thighs, Respondent “grazed” her vaginal area with his finger. S.W. also reported that Respondent touched her clitoris with his finger. S.W. declined to pursue criminal charges and stated she would file a complaint with the Department. However, she expressed that she wanted to ensure there was a record of the incident so another woman would not have the same experience. On or about July 26, 2017, one week later, S.W. filed a complaint with the Department of Health. S.W. submitted a typewritten statement regarding the events involving Respondent. S.W. related that at the beginning of the massage, she gave Respondent permission to pull down her underwear and tuck in the drape. She stated that toward the end of the massage, Respondent “grazed” her vagina outside her underwear. He then placed his finger under her underwear and began massaging her clitoris for a couple of seconds. She stated that she grabbed Respondent’s hand and pushed it away. In response, Respondent abruptly told S.W. that the massage was done. In addition to the report to the police and the Department, S.W. also reported the incident to the school administrators, Dr. Ali and Mr. Brooks. Dr. Ali met with S.W. and C.W. when they returned to the school. Dr. Ali described S.W. as appearing embarrassed, subdued, and uncomfortable. Mr. Brooks was also present during the meeting. He was called to campus after he received a report that something inappropriate happened. He observed that S.W. appeared upset. Although there was no expert offered to testify in this matter, Chris Brooks, LMT, provided insight regarding the type of massage provided to S.W. He explained the difference between sensualized touch and sexualized touch. A sensualized touch is not uncommon in massage. On the other hand, sexualized touch is used to evoke sexual pleasure. At hearing, S.W. was clear and unwavering in her recollection of the events involving Respondent touching her vaginal area. S.W. appeared anxious, uncomfortable, and her voice cracked when she testified that Respondent moved her underwear and touched her vaginal area. Specifically, she testified that Respondent grazed her vagina on top of the front of her underwear. She was in such shock that it happened she could not say anything. Respondent then put a bare finger underneath her underwear and began massaging her clitoris. She still could not speak, so she quickly grabbed his hand and pushed it away. Consistent with her statement to the police officer and her written statement, she credibly testified that Respondent touched her vaginal area with his finger. At hearing, Respondent denied touching S.W.’s vagina during the massage. He also denied rubbing her clitoris. Mr. Brooks, who is personally and professionally acquainted with Respondent, testified that Respondent seemed shocked to learn of S.W.’s complaint. Respondent testified that he draped S.W.’s legs in such a way that it caused the draping to “bunch” between the area massaged and the genitalia. Respondent argues that S.W. could not determine whether the draping touched her genitals when Respondent massaged her legs. However, when pressed on this point, S.W. unequivocally testified that she was certain it was Respondent’s finger that touched her clitoris. Respondent had no prior complaints of inappropriate touching before S.W.’s complaint. Although Mr. Brooks asked him about the complaint on the date of the incident, there was no evidence offered at hearing that Respondent was formally interviewed by the school administration. However, Respondent was terminated from his job at Daytona College based on S.W.’s complaint. Respondent was also not interviewed by the police officer investigating the complaint. Respondent was not charged with a crime. Respondent has no prior disciplinary action involving his license to practice massage therapy. The evidence demonstrates that Respondent crossed the boundaries of appropriate massage into sexual misconduct when he massaged S.W.’s clitoris with his finger. While Respondent’s testimony seemed sincere, S.W. was more persuasive. Based on the totality of the evidence presented at hearing, there is clear and convincing evidence that Respondent touched S.W.’s vaginal area or clitoris with his finger. The placement of a massage therapist’s finger on the vaginal area or clitoris of a patient is outside the scope of the professional practice of massage therapy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding: Respondent guilty of violating sections 480.046(1)(p) and 480.0485 as further defined in rule 64B7-26.010; Imposing a fine of $2,500; and Revoking Respondent’s license to practice massage therapy. DONE AND ENTERED this 5th day of April, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2019.
The Issue The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of section 480.0485, Florida Statutes, and, if so, the appropriate sanction.
Findings Of Fact Based on the stipulations of the parties, evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner, Department of Health, Board of Massage Therapy (Petitioner or Board), is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43, and chapters 456 and 480, Florida Statutes. Stipulated Facts At all times material to this proceeding, Respondent was a licensed massage therapist in the state of Florida, holding license number MA48984. Respondent’s current address of record is 4069 Old Mill Cove Trail West, Jacksonville, Florida 32277. At all times material to this proceeding, Respondent worked for Massage Envy, a massage establishment in Jacksonville, Florida. On or about August 28, 2020, Respondent performed a massage on A.M., a 32-year-old female. In preparation for her massage, A.M. undressed, laid down on a massage table, and covered herself with a draping. In the course of the massage, Respondent uncovered A.M.'s right leg and massaged her quadricep. Sexual misconduct is outside the scope of generally accepted practices of massage therapy. No massage therapist may engage in sexual misconduct with his or her patient. Facts Adduced at Hearing Respondent was educated in massage therapy, and has practiced massage therapy for roughly 13 years. As part of his education, he received education in ethics and professional conduct. He has also received continuing education as part of his Florida licensure. His education included instruction that sexual misconduct is not allowed. Respondent worked for Massage Envy at two of its Jacksonville branches, though he was released after the report of the August 28, 2020, incident. He also works as a massage therapist for the Jacksonville Jaguars professional football team. Respondent indicated that if a client raises a sexual issue during a massage, a massage therapist is instructed to give the client every opportunity to correct their pattern of behavior and/or try to divert the behavior back to the massage. If the client persists, the therapist may ask the client to stop or leave the room. Respondent testified that prior to August 28, 2020, he had not been accused of misconduct of any form in connection with his practice of massage therapy, nor had a client objected about his touching them inappropriately during a massage. There was no evidence to the contrary. A.M. was a regular client of Respondent on a generally month-to- month basis, having become a member at Massage Envy in July 2015. She received massages on a monthly basis until services were suspended for an undisclosed period due to Covid-19. The Massage Envy facility had reopened at some time prior to August 28, 2020. Respondent was A.M.’s primary massage therapist, though she was treated by another massage therapist, Ross, when Respondent was unavailable or when A.M. saw him by choice to provide specialty service. Ross was regarded as being particularly skilled in treating the neck area. A.M. and Respondent had no interaction, professional, social, or otherwise, outside of Massage Envy. A.M. and Respondent would talk during treatment. The subject matter previously varied, and A.M. may have occasionally strayed into areas that could be perceived as inappropriate, but there was nothing to cause concern on Respondent’s part that would have resulted in termination of a session. A.M. typically kept her eyes closed during treatment, occasionally falling asleep. The massages generally had their desired effect of relaxation such that A.M. was often in a “massage daze” afterwards. At some time prior to the events at issue, Respondent wrote his telephone number on the back of a Massage Envy tip envelope and gave it to A.M. The reason for Respondent providing his number to A.M. was, as is the case with many of the facts of this case, disputed. A.M. testified that due to the Covid-19 outbreak, Massage Envy had closed. She stated that Respondent told her that he had been seeing clients at their homes, and gave her his number in case she wanted him to give her a massage at her home. Respondent, on the other hand, testified that he had a favorite pair of “massage pants” that were in need of repair, and that he had given them to A.M., who is a seamstress, to have her take a look at them. Respondent stated that he gave A.M. his telephone number so that she could call him to let him know if they were worth trying to fix. A.M. acknowledged that at some point during her professional relationship with Respondent, they discussed whether she could repair the pants. However, A.M. denied that he had provided her with his number when he gave her the pants, stating that it made her uncomfortable that she was not able to contact him regarding the work that it would entail. The events of August 28, 2020, could not be more contested. This is not a case of nuanced behavior. Sexual activity occurred, or it did not occur. The testimony of each is summarized as follows:1 A.M.’s Testimony A.M. testified that she appeared at Massage Envy at 9:00 a.m. on August 28, 2020, for a scheduled 90-minute massage. She undressed and laid face down on the massage table, covered by a sheet. There was no evidence as to whether A.M. completely disrobing was her routine, but neither A.M. nor Respondent indicated it to be outside of the norm. The massages with Respondent were “mostly the same order of operation,” but on the 28th, since A.M. was sore from a workout, she asked that Respondent not do a deep massage. Respondent massaged A.M.’s back, legs, and arms without incident. During the first part of the massage, A.M. engaged in conversation with Respondent. She did not believe the discussions were sexual in nature. She told Respondent about her new fitness routine and the workouts involved. Respondent noted that that he had noticed, and that she looked really good, to which A.M. replied “oh, thanks.” In the second conversation, A.M. asked Respondent to weigh in with his thoughts about a situation in which a client asked if he should take A.M. to dinner after the completion of a job. A.M. stated that she told the client “look, I'm down to go to dinner with you, but I have to let you know that I do have a partner and he will know about this.” She stated that the prospective 1 The recitation of testimony that follows is graphic and unfiltered. In a case dependent entirely on the testimony of the only two witnesses to the event, it seems necessary to consider, in full, the testimony of the only two witnesses to the event. client said “Oh, no you got me all wrong,” decided not to go through with the work, and never spoke with her again. A.M. was curious as to Respondent’s speculation as to the client’s intentions. She also indicated that although she was in a relationship, she was open to dating other men, as long as her partner knew about it. Roughly halfway through the massage, A.M. turned over so Respondent could massage the front of her body, as was normal. Respondent began to massage the quad at the front of A.M.’s upper right leg. A.M. testified that, when Respondent started massaging her quad, instead of downward strokes along the quad towards her feet, he started to massage upward and around the top of her quad behind her upper thigh until he was touching her buttocks and her vulva. As Respondent began to touch A.M., she clenched her buttocks, and asked, “Is this a thing that's happening?” Respondent started to finger A.M.’s vagina and asked, “Is this okay?” to which A.M. replied “yes, that's fine.” Respondent continued to insert his finger into A.M.’s vagina. She remembered Respondent saying, “Damn, it's so wet and tight,” to which she replied “And smooth.” A.M. testified that as Respondent fingered her vagina with one hand, he had the other on her clitoris, but would intermittently massage the nipple and areola of her right breast. A.M. testified that Respondent again remarked about how tight her vagina was, and that she responded, “My asshole is, too.” A.M. later testified that she was shocked that the event was happening, but that “when it happened I tried to enjoy it,” and put her hands over her head and moaned. A.M. testified that she did not run or resist because “I didn't know what would happen if I did. Like, I felt very vulnerable, and, I thought, you know, like, I'll just lay here and let it finish.” Although Respondent had never given A.M. reason to believe he was violent, she testified that “he is still tall and bigger than me and muscular and I was naked. I'm 4' 11. I was very vulnerable.” At no point during the incident did A.M. tell Respondent to stop. Rather, A.M. recounted that after a while, she ultimately said, “look, I'm not going to cum from this, can you please just make sure my muscles are even,” to which Respondent stated, “I guess I have to go back to doing my job.” She remembered him continuing to finger her vagina for a bit longer before he stopped and said, “I’m sorry. I'm sorry,” to which she “thanked him” and said, “Don't be sorry. I guess people just like touching me.” As Respondent concluded, A.M. asked Respondent if he had a crush on her, and told him she “would try to be better prepared the next time.” A.M. testified that Respondent then proceeded to massage her low back from underneath. She thought he may have been wiping his hands on her. He then moved to massage her shoulders, at which time A.M. said, “oh, great, I'm going to smell like pussy juice now.” She testified that Respondent then said, “you're going have guys hawking all over you from all the pheromones.” A.M. testified that as Respondent concluded, she said a few more things because it seemed awkward, and remembered Respondent saying “I wanted to do that for a long time, but, you know, had to keep it professional.” A.M. testified that after the sexual act was concluded, she told Respondent that “I actually had a sex dream about you once, but it was no big deal.” He asked “was it one of those when you felt like you were really there?” A.M. said, “yeah,” and Respondent said, “That's awesome.” She also indicated that she asked “is this why girls at the front desk are like, oh, you were with Mike, he's so amazing,” to which he just kind of laughed. A.M. also stated to Respondent “I've always honestly come here for a massage,” to which he replied “I think my clients come back to me because I use a lot of pressure.” A.M. also testified that, again after the sexual act was concluded, she told Respondent “that one time while I was receiving a massage from Ross that he had his hands on my neck and I just wondered to myself what it would be like if he choked me.” She recounted that Respondent replied that “[w]e often wonder what our clients are thinking.” Respondent finished the massage and left the room, closing the door behind him as was normal. A.M. got dressed and headed for the front desk. She noticed a clock that read 10:59 a.m., well beyond the scheduled 90- minute massage. A.M. testified that she saw Respondent in the hallway, and said “Bye. See you next time.” She testified that she was in a “massage daze” as she walked to the front desk to check out. She spoke with the manager, telling her that she felt very relaxed. She paid for the massage, and left a tip for Respondent. She did not say anything else to anyone about the massage before she left the premises. As to the reason for not alerting anyone at Massage Envy to the incident, A.M. testified that “I was confused. You know, like, obviously, I said I wasn't injured. So, maybe, you know, I thought to myself, oh, maybe that's a thing that happened and I can get over it.” Respondent’s Testimony A.M. had a 9:00 a.m. appointment with Respondent on August 28, 2020. A.M. went to the massage room alone, undressed, and laid face down on the massage table. She was draped with a sheet. Respondent testified that the appointment was normal. He greeted A.M., asked if there was anything that needed particular attention, and tried to get an understanding of what she was looking for in the massage that day. A.M. was sore from exercise, and did not want a deep massage, as she typically received. She did request a full body massage. From what he could recall, Respondent performed a “normal service,” with no specific out of the ordinary requests. Respondent has an established routine when performing massage, working around the body in a clockwise pattern to ensure that he does not skip a body part or miss something along the way. Patients typically start lying on their stomachs and, about halfway through a session, turn over. The general pattern is the same on both sides. That has been his practice since therapy school. Respondent testified that A.M.’s massage as she was positioned on her stomach was uneventful, and conversation routine. About midway through the massage, A.M. turned over, which was the normal course for a full body massage. Respondent testified that “the conversation quickly changed and it went into one of that was off the topic of massage of what we had been talking about.” He recounted three topics of conversation during the course of A.M.’s massage that started to get “off track.” First was the discussion, also a topic of A.M.’s testimony, regarding a client she had done some work for. Respondent stated that A.M. wanted his advice because “you're a guy, you might understand why he reacted this way.” Purportedly, to Respondent’s recollection, after A.M. completed the work, the client asked A.M. to dinner “and other things.” Respondent indicated that A.M. told the client “yeah, I'm cool with that, but I have to ask my boyfriend,” which caused the client to be taken aback. A.M. was curious about the client’s reaction, and wanted Respondent’s opinion as to his reaction. Respondent testified that “I guess it's because he wasn't expecting the response about your boyfriend.” Respondent testified that the question was off the topic of massage, and “a little strange and a little weird.” However, it was not to the point of what he perceived as “crossing that line.” Respondent testified that he redirected the conversation, with mixed success, back to what was needed in terms of the massage, but did not report the conversation to any other employee or manager at Massage Envy. Respondent testified that at another point in the massage, A.M. advised him that she had “a wet dream” in which Respondent performed oral sex on her. Respondent testified that he again tried to redirect the conversation to one of massage. A.M. had been a client quite a long time, and he was giving her every opportunity to continue to be a client. Finally, Respondent testified that when he started to work on A.M.’s neck, she advised him that when she was worked on by Ross, a massage therapist known for his neck work, she wondered what it would be like for him to choke her. Respondent perceived the choking to be for sexual gratification. As “shocking” as he perceived the comment to be, Respondent testified that “I tried to redirect it towards massage,” saying “Ross is good at neck work and a lot of his clients see him for neck work.” He was close to the end of the massage, tried to quickly finish the massage and said, “okay, hey, that's it, we're done.” Respondent testified that as he went to walk out of the room, A.M. noted that he forgot to work her pectoralis muscles on the upper part of her chest. Although he was already running over the scheduled time, he came back, massaged both sides for a few minutes, and left the room. It is Respondent’s normal custom to leave the room after a massage so the client can dress in privacy. Respondent testified that as A.M. left, “she said bye to me, and she goes I'll see you later.” She left him a “generous” tip -- over $30. Respondent testified that he found the nature of the conversations with A.M. to be “shocking.” However, he did not mention them to either his coworkers or management at Massage Envy. He testified that, in retrospect, he should have left the room and gone directly to management. He indicated that clients discussing topics that may be inappropriate -- politics, religion, things of a sexual nature -- are not uncommon. He tries to act professional and go about his business. He stated that, as he goes from client to client to client throughout the day, “[y]ou never think it's going to go to something like this or this point.” Respondent denied touching on or near A.M.’s vagina. Respondent denied touching A.M.’s breasts, though he did massage her pectoralis muscles along the collarbone and the upper path of the muscle tissue. Respondent denied that he experienced any type of sexual arousal during A.M.’s massage. Post-Incident Events - A.M. On August 31, 2020, while A.M. was masturbating, the events of August 28, 2020, came back to her. She came to the conclusion that what happened was wrong. Up until that point, A.M. had not told any other person about the alleged incident. The next day, September 1, 2020, A.M. went to Massage Envy to cancel her membership. She did not tell the representative about her allegations regarding Respondent. Massage Envy did not permit A.M. to cancel her membership that day. However, they allowed her to freeze her account. She could then cancel within the time needed to cancel without having to pay for another month.2 That same day, after her effort to cancel her membership proved unsuccessful, A.M. sent two text messages to Respondent. In her first, sent at 12:59 p.m., she said “Hey Mike, it’s A.M.,” to which Respondent replied at 2:12 p.m. “How are you?” A.M. then responded at 4:43 p.m.: I’m not okay I’m sad and angry over what happened Friday. I feel taken advantage of regardless of anything I said. None of what I said was an invitation to do that to me. I was in a very relaxed state of being. I’m disappointed that I built trust with you and that I paid you to do this to me. This was something I routinely made part of my fitness 2 Despite having frozen her membership, her next month’s dues were still withdrawn from her account. Massage Envy was apologetic and cancelled the membership. A.M. did not ask for a refund, and it is unclear, and ultimately irrelevant, whether she received one. and wellness the past several years. I had to cancel my membership today. I really hope you don’t do this with anyone else. A.M. then blocked Respondent from her contacts, though Respondent indicated that he did not try to reply. On September 2, 2020, A.M. discussed the incident with her friend, Dr. Ferrer-Bruker. The initial contact between A.M. and Dr. Ferrer-Bruker occurred that afternoon, when A.M. asked to discuss something “heavy.” They spoke around 6:00 or 7:00 p.m. Dr. Ferrer-Bruker recalled that A.M. told her that she received a massage from her regular massage therapist, and that he “fingered her,” and that she regretted that she did not do something different as a reaction at the time. Dr. Ferrer-Bruker tried to comfort A.M., and recommended that she go to the police, a discussion confirmed by A.M. Dr. Ferrer-Bruker remembered little else of the conversation. After having spoken with Dr. Ferrer-Bruker, A.M. filed a police report with the Jacksonville Sheriff's Office (“JSO”) later in the evening on September 2, 2020. At 8:53 p.m., A.M. texted Dr. Ferrer-Bruker that “[t]hey are sending a police officer to me now.” The JSO conducted an investigation of the August 28 incident. A.M. testified that she recalled telling the police that she was shocked and terrified and scared at the time the incident was going on. However, she testified that Respondent had never previously given her reason to believe he was violent, nor had he made her feel threatened in a physical manner. Between the time A.M. made the police report and the date she reported the incident to Massage Envy, she stated that she discussed the incident with other persons. None of those persons testified and there is no other evidence of any such discussions. On September 14, 2020, A.M. reported the incident to Massage Envy. She advised the manager, Katherine Petrino, that she had a massage with Respondent on August 28, 2020. She reported that the massage started as normal, but as Respondent starting to massage her quad, he instead fingered her vagina. Later that day, A.M. emailed Ms. Petrino with an account of the incident that, despite her statement that her “[m]emory is foggy on the sequence of what else was done and said,” differed little, if at all, from her testimony. A.M. was then contacted by Redirect, a third-party investigator for Massage Envy. She restated the events to the representative. Post-Incident Events - Respondent About two weeks after August 28, 2020, Ms. Petrino, the clinic manager for Massage Envy - Harbor Village, advised Respondent that there was a complaint against him for inappropriate touching. She did not give details. Respondent was placed on suspension until further notice. A couple of days later, Respondent was contacted by the third-party investigator, and gave a statement. He testified that he told the investigator how the massage went, what body parts were worked on, and described the conversation. He advised of having received both of A.M.’s text messages on September 1, 2020, and that he did not respond to her second, lengthier message. He indicated that his discussion with the investigator was consistent with his statements at the hearing and otherwise. Social Media Starting around December 4, 2020, A.M. posted her thoughts regarding the incident on Instagram. The posts, with a few exceptions, were not dated. The text of the first post was as follows: TW: Sexual Assault I keep thinking about how the scariest thing I feel like I did this year was pick up the phone to report my abuser. I felt the most shame because I didn't think anyone would believe me because a) I'd known them so long b) they were well-loved at the place and c) I'm a sex pot so maybe it would just be “on-brand” to have “let it happen and regret it” (second quotes are actual words from a JSO officer in 2020). Please, the “brand” is pleasure. The brand is consent. The brand is joy, not confusion and fear and freezing and trying to just say anything to get through a situation. The brand is context and that it never should have happened in the first place. How sad is it that I just said the scariest thing was reporting my abuser and not the fact that it happened at all? Life is not happy and positive as a default. I've never been fake about anything, just learned that people love to see joy on here. Anyway, I am very grateful for this escape and the support I have gotten from my beautiful partner, friends, and family. Most of all grateful for myself because I'm mf-ing that bitch. A second post, also undated, provides that: TW: Sexual Assault I was gonna blame a man for molesting me and stressing me the fuck out and sending me into uncontrollable depression for setting me behind on all of my work but the reality is I'm actually just celebrating the fact that I've made it, I pushed through, and I am THAT bitch who was able to crush three custom wedding gowns in a week so ??????????? Try not to fuck with me THANKS!!! ?? Unlike the JSO investigation, the question here is not one of consent. If the acts alleged occurred between A.M. and Respondent, acting in the course of his licensed profession, they constitute a violation of section 480.0485, whether they were engaged in between two consenting adults, or whether they were forced upon the client entirely without consent. In short, if the acts occurred, they violated the massage therapy practice act. The testimony of Dr. Ferrer-Bruker, who was not a witness to any of the alleged acts of Respondent, played no direct role in the determination of the outcome in this matter. A.M.’s testimony was forceful and emotional. Despite her self- perceptions and her “brand,” she was precise about the facts, and adamant as to the role of consent in a sexual encounter. Respondent’s testimony was equally forceful, but more reserved in delivery. He testified that he loved his family and his job, that he had built a reputation and a career over many years, and performed at a high level. He stated that he would not jeopardize his work, his reputation, and his clients’ trust -- in short that he “would never do that, to sit there and throw it away on something like this.”
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 Complaint against Respondent, Michael E. Maloy, L.M.T. DONE AND ENTERED this 16th day of March, 2021, in Tallahassee, Leon County, Florida. S GARY EARLY 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 16th day of March, 2021. COPIES FURNISHED: T. A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Ryan Sandy, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Kama Monroe, JD, Executive Director Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 James C. Poindexter, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Kristen M. Summers, Esquire Prosecution Services Unit Department of Health 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
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 Whether the Respondent, a licensed massage therapist, should be disciplined under section 480.046(1)(p), Florida Statutes (2016),1/ for sexual misconduct in the practice of massage therapy; and, if so, the appropriate discipline.
Findings Of Fact The Petitioner licenses and regulates the practice of massage therapy in Florida, including discipline of licensees who are in violation of the governing statutes and rules. The Respondent holds massage therapy license MA 80154. In March 2017, the Respondent was employed as a massage therapist at Hand and Stone Massage and Facial Spa in Brandon, Florida. On March 29, 2017, Y.B., went to Hand and Stone to use a gift card for a free massage that had been given to him by his fiancée. The Respondent approached and introduced himself to Y.B., and asked if he could help him. Y.B. told him why he was there, and the Respondent led him back to a therapy room. In the therapy room, Y.B. asked the Respondent to focus on his upper body, arms, and fingers. The Respondent had him undress and lay down on the massage table face down, covered only by a sheet. The massage proceeded without incident at first. Then, the Respondent asked for permission to massage Y.B.’s legs. Y.B. granted permission. As the massage proceeded, Y.B. closed his eyes and relaxed. When the Respondent finished massaging the back of Y.B.’s legs, he asked Y.B. to roll over onto his back. As the massage proceeded, Y.B. again closed his eyes and relaxed. After massaging Y.B.’s upper body, arms, and fingers, the Respondent asked, “May I?” Thinking the Respondent was asking if he had permission to massage the front of his legs, Y.B. said, “yes, do what you have to do.” Before Y.B. knew what was happening, the Respondent grasped Y.B.’s penis in his hand and put it in his mouth. Startled and shocked, Y.B. opened his eyes, sat up, and made the Respondent stop, saying “Whoa, whoa, whoa, what do you think you’re doing? I’m not gay.” At that point, the Respondent stopped and brought Y.B. water and a towel. What the Respondent did was very upsetting to Y.B. He was so upset and angry that he was distracted while being checked out by another employee of Hand and Stone. He unwittingly presented his gift card and answered questions. He discovered later that he not only had paid for the massage but also had given the Respondent a tip. Y.B. continued to be bothered by what happened and returned to Hand and Stone the next day to confront the Respondent and have him explain the reason for what he had done the day before. During this confrontation, the Respondent admitted to his misconduct and tried to apologize, saying “I thought we had a connection.” Y.B. continues to be affected by what the Respondent did to him. He received counseling through his employer. He still is less affectionate than he used to be, even towards his family. To this day, he still becomes anxious when reminded of the incident.
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 the Respondent guilty as charged; revoking his license; and fining him $2,500. DONE AND ENTERED this 23rd day of January, 2018, 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 23rd day of January, 2018.
