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 Should discipline be imposed by the Department of Health, Board of Massage Therapy (the Petitioner), against Stanley Carroll's (the Respondent) license as a massage therapist for alleged violations of Sections 480.046(1)(o) and 480.0485, Florida Statutes?
Findings Of Fact Facts Established by the Answer This is an action to impose administrative penalties and assess costs related to the investigation and prosecution of the allegations against Respondent pursuant to Sections 456.072, 480.046(1)(o) and 480.0485, Florida Statutes. This tribunal has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2003). Venue shall be determined pursuant to Florida Administrative Code Rule 28-106.207. Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to Section 20.43, Florida Statutes, and Chapter 480, Florida Statutes. At all times material hereto, Respondent has been licensed as a massage therapist, having been issued license number MA 20209 on September 12, 1995. Respondent's last known address is 5135 San Juan Avenue, Jacksonville, Florida 32210-3137. O.C. was a patient of Respondent during the year 2000. Facts Established by Responses to Request for Admissions Respondent Stanley Carroll possesses Florida massage therapist license number MA 20209. Respondent was issued Florida massage therapist license number MA 20209 on September 12, 1995. Respondent practices massage therapy at the "Hands that Care," 5135 San Juan Avenue, Jacksonville, Florida 32210. Respondent began providing massage therapy to O.C. in late July 2000 or early August 2000. O.C. was referred to Respondent by K.C. O.C. saw Respondent approximately ten times during the year 2000. During massage therapy sessions with Respondent, O.C. would be covered by only a sheet. Respondent would move the sheet that covered O.C. during massage therapy sessions so that Respondent would not be completely covered during massage therapy sessions. When Respondent would massage O.C.'s pectoral muscles, Respondent would fold the sheet covering O.C. down to expose her breasts. During some massage therapy sessions, Respondent would massage O.C.'s left hip and left upper thigh in an attempt to return feeling to those areas that was lost due to the removal of a lymph node when O.C. was a child. When Respondent would massage O.C.'s left hip and left upper thigh, Respondent would move the sheet covering O.C. and expose O.C.'s pubic area. When Respondent would massage O.C.'s left hip and left upper thigh, Respondent would place one of his hands next to her pubic area. Respondent called O.C. and invited her to his massage establishment for a $30.00 massage, which is half of Respondent's normal fee (at that time). After O.C. was dressed, Respondent walked O.C. to her car (in her last visit to Respondent). Respondent told a Department of Health investigator that he did touch "delicate areas" on O.C.'s body. On May 24, 1999, the Florida Department of Health filed an Amended Administrative Complaint against Respondent in discipline case number 98-12083 and his massage therapist license, alleging that Respondent violated Subsection 480.046(1)(c) of the Florida Statutes by being convicted of battery on patient M.J. for inappropriately touching M.J.'s breasts and nipples. Respondent disputed the material facts as alleged in Amended Administrative Complaint 98-12083. In DOAH case number 99-3719, Administrative Law Judge, (ALJ) Suzanne F. Hood found that Respondent violated Subsection 480.046(1)(c) of the Florida Statutes by being convicted of misdemeanor battery for intentionally touching M.J. against her will and that this battery would have not have occurred, but for Respondent and M.J.'s massage therapy session. The Board of Massage Therapy rendered a Final Order in disciplinary case number 98-12083 in which it adopted the findings of fact and conclusions of law of Administrative Law Judge Suzanne F. Hood in DOAH case number 99-3719. The Board of Massage Therapy's Final Order in disciplinary case 98-12083 imposed an administrative fine in the amount of $500.00 and investigative costs in the amount of $1,452.05. Additional Facts O.C. was first seen by Respondent on August 1, 2000. At that time, a questionnaire was completed by O.C., Respondent's Exhibit numbered two. O.C. indicated in her response to the questionnaire that this was the first experience O.C. had with massage therapy. By report, in the questionnaire, the medical history referred to PMS/painful menstruation. Other than the questionnaire which was filled out on the initial visit, no other documentation was established concerning the therapy. That questionnaire, in addition to commenting on the medical history by report, described the fact that O.C. rarely exercised and spent a lot of time in her day standing while at work. Respondent's Exhibit numbered two, the questionnaire, has a statement at its end where it says "I have had the massage treatment and protocol explained to me. I understand that areas will be massaged. With this information I give my permission for a massage, I know I may stop the massage at any time for whatever reason. (pain, discomfort or just being uncomfortable with the massage.)" What O.C. hoped to gain from the massage therapy was relaxation, given the stress levels she experienced at the time. All the massage therapy which Respondent provided was at his location referred to as "Hands That Care," 5135 San Juan Avenue, Jacksonville, Florida. There were 10 sessions involved with the therapy, which commenced around 7:30 p.m. on each occasion. At these visits, Respondent and O.C. would be alone in the room where the therapy was provided. At the therapy sessions, O.C. would be completely undressed with a drape over her when she was on the massage table receiving therapy. That drape was a sheet with which she covered herself. She tried to ensure that the private or sensitive areas of her body were covered with the sheet. The sheet was sufficient to cover her exposed body. Nonetheless, the client felt a draft at times around her genital area, and her breasts were exposed during certain forms of massage. This was referred to as frontal massage. That massage involved the pectoral area of her body. O.C. did not feel that there was a problem with her pectoral area being massaged. When O.C. first went for a massage, she and Respondent discussed clothing options for the course of the massage. Respondent told her that there were different options, among them that she could completely disrobe and there would not be any restriction, taken to mean any restriction in the performance of the massage. He told her that she could wear her panties if that made her feel comfortable. She chose to completely disrobe. On an estimated two or three times, O.C. describes that Respondent's ". . . hand might have swept across my nipple, but (she) tried to disregard it and hoped that it was an accident." When O.C. described the "swipe" across her nipple, she meant the actual touching of the nipple. She was not persuaded that the touching was intentional. She hoped that it was not and, at the time, did not believe that it was. O.C. had not consented to any type of lymphatic drainage breast massage or any type of breast massage from Respondent. Her request was for "relaxation massage." On the last visit with Respondent, which took place sometime in 2001, presumably the earlier part of that year, O.C. experienced a problem with Respondent in which he engaged in inappropriate conduct. On that occasion when O.C. entered the room, the room was dimly lit, as it had been on her other visits, and music was provided. The massage session began with a frontal massage, with O.C. on her back draped. The massage period took approximately two hours. O.C. was relaxed with her eyes closed. In the last massage period, one of the areas being addressed was the scar tissue on the inside of O.C.'s upper left thigh. This area is roughly portrayed on the drawing which was admitted as Respondent's Exhibit numbered three. That scar was the result of surgery, in which nerve damage was suffered by O.C. Respondent was trying to break down the tissue associated with the scar to bring about some correction in the condition. Respondent explained to O.C. that massage therapy can help nerve damage. During the last visit when Respondent was working on the scar that was left when the lymph node was removed, the massage did not feel pleasant, in that some sensation in the area was still being experienced by O.C., notwithstanding related areas of numbness. At some point while Respondent was working on the scar tissue, the draping was not covering the area to include her genitalia. At this juncture, Respondent put his hand on O.C.'s genitalia, the clitoris, and began rubbing the clitoris for a period of a minute or less. The touching involved the clitoris itself and the area around it. After that Respondent pulled O.C. up from the table. The sheet was not covering her at the time and as Respondent was pulling O.C. up his hand was still in the clitoris area. O.C. was shocked by Respondent's conduct and did not know how to handle the situation. She had not given Respondent permission to touch, rub, or massage the genital area, to include her clitoris. O.C. never experienced pain in her genital area and never asked Respondent to touch the clitoris or the area around the clitoris or to massage in those places. O.C. had never requested fertility massage or an approach known as the Wurn technique. After helping O.C. up from the table, Respondent asked O.C. to get dressed and to meet him outside. When Respondent left the room, O.C. left the table and went to the dressing room and dressed herself. She met Respondent outside the office area of the building. At this time Respondent asked O.C. if he had ever touched her inappropriately. O.C. simply shook her head in acknowledgement of his comment. She was embarrassed. Respondent also made a comment to the effect that younger people are more susceptible to certain touches than older persons. Respondent encouraged O.C. to come back for more massage therapy and assured her that he would work with her schedule and that if money to pay for the therapy was an issue, then he would work with her on that subject as well. She shook her head as if to agree. She left and never came back. The experience which O.C. had with Respondent on her last visit left her very embarrassed beyond the event. She had not had massage therapy before her experience with Respondent and did not know what to expect, but realized that his placing his hands on her clitoris or the area around the clitoris was not appropriate. The Respondent describes the massage performed on O.C. as a full body massage. This involves the neck, back, legs, feet, hands and head. The therapy is a mix between deep tissue and what Respondent considers Swedish Massage. Ordinarily, the patient is uncovered in the specific areas that are being worked on. Respondent asks permission before performing massage in the delicate areas such as around the breast. It is assumed that is what transpired with patient O.C. Respondent's involvement with O.C. in massaging an area related to her breast was addressing her pectoral muscles. Respondent did not deny the possibility that he touched O.C.'s nipple. He explained, "I don't recall swooping across the breast. If I touched any, it would have been when your pushing breast up and the breast tissue slipping and I would move my hand down to adjust for that. . ." Respondent stated that he had no intention to touch the nipple. Upon the facts presented it is not found that Respondent intended to touch her nipple, unlike the experience with the clitoris and clitoral area. Respondent acknowledges that the drape covering O.C. when he helped her to sit up on the massage table fell down to her waist when he last saw her. Respondent acknowledges that the deliberate touching of the nipples or the area of the clitoris or vaginal area is inappropriate conduct for a massage therapist. EXPERT OPINION TESTIMONY Jennifer Mason has been licensed in Florida as a massage therapist for 10 years. No discipline has ever been imposed against her license. She is an anatomy instructor at the CORE Institute of Massage Therapy in Tallahassee, Florida, where she instructs in musculoskelatal anatomy. Ms. Mason has instructed hundreds of students at Core Institute, and she has given hundreds of massages as a licensed therapist. She is expert in the field of massage therapy and was received as an expert for offering opinions concerning the practice of massage therapy. Ms. Mason practices a form of massage therapy that is similar in technique to that employed by Respondent in this case. From what Ms. Mason explained, the size and manner of draping employed by Respondent in the O.C. case and the amount of clothing worn by the patient are not at odds when taking into account what Ms. Mason believes is appropriate. Ms. Mason established that the massage therapist would never engage in the touching, rubbing, or massaging of a female patient's nipples. She does not believe that touching the nipples would be appropriate even if its accidental. Under the facts in this case, her belief that accidental touching would be inappropriate is not accepted. Ms. Mason established that it is inappropriate for a massage therapist to rub or touch a female patient's genital area, including the clitoris. Kenneth C. Oram has been licensed as a massage therapist in Florida and is an expert in the field of neuromuscular massage therapy. He has no disciplinary history in Florida in his field. He believes that a therapist could inadvertently touch the patient's nipple. He does not ascribe fault to that form of touching. His opinion in that sense is accepted given the facts in this case. Mr. Oram agrees with Ms. Mason that intentional touching of the nipples and genital area, to include the clitoris, is sexual misconduct. Those opinions are accepted. His opinion is that touching the genital area when assisting a patient from the massage table, such as was the case with O.C. is inappropriate. That opinion is accepted. Prior Disciplinary Action In Department of Health, Petitioner v. Stanley Michael Carroll, Respondent, before the State of Florida Board of Massage Therapy, Case No. 98-1208A3, Respondent was required to pay an administrative fine of $500.00 for violating Subsection 480.047(1)(c), Florida Statutes, as more particularly described in the Answers to Request for Admissions reported in these facts.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding Respondent in violation of Section 480.0485, Florida Statutes (2000), and revoking his massage therapist license. DONE AND ENTERED this 20th day of May, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 20th day of May, 2004.
The Issue The issue to be decided is whether Respondent 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 Department of Health 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 times material to the allegations in the Administrative Complaint, Respondent, Giuseppe Chiarizia, was licensed as a massage therapist in the State of Florida, having been licensed on August 26, 2008, and issued license number MA54313. At the time of the alleged incident in this case, his license was clear and active. Teri Ingram and M.C. are close friends who reside, with their respective spouses, in Illinois. In late September, early October of 2008, the two couples were vacationing in Panama City. On or about October 1, 2008, Ms. Ingram and T.C. went to the Salon Baliage and Spa for a massage. Upon arriving at the spa, the women were led to a room to fill out paper work, and offered some refreshments, which they declined. Each woman was then taken back for the services they were receiving. Ms. Ingram was called back first, and had a facial and a massage. M.C. was having similar services. After Ms. Ingram's massage was finished, she returned to the waiting room to wait for M.C. At some point, an employee at the spa came to her and told her that M.C. was in another room and wanted to see her immediately. As Ms. Ingram approached the room, M.C. came out. She was dressed, but was shaking and crying hysterically. Ms. Ingram described her as "all hunched over, more like hugging herself." M.C. wanted to call the women's husbands and leave the spa. Ms. Ingram notified the manager that something had happened but she was not sure what, and that they were leaving the spa. Ms. Ingram paid for her services; she did not know if M.C. did so as well. The two women went outside, and while waiting for their husbands, M.C. told Ms. Ingram that the massage therapist, Respondent, had touched her. Ms. Ingram asked her what she meant by that statement, and M.C. told Ms. Ingram that the massage therapist had rubbed his genitals across her hands and her shoulders during her massage, and that once he began the massage he slipped his finger inside her vagina. M.C. stated that she told him to leave the room and to leave her alone, and in response, he held her down and told her he was sorry. She asked him repeatedly to leave the room and he finally did so. Once their husbands arrived, the two couples drove to the Panama City Beach Police Station to report the incident. Deputy Andrew LoTurco was employed by the Bay County Sheriff's Office. He was dispatched to the Panama City Beach Police Department to respond to M.C.'s complaint of sexual battery. When he encountered M.C., she was very distraught and embarrassed. After hearing her complaint and speaking with M.C., her husband and a lady, presumably Ms. Ingram, Deputy LoTurco transported M.C. to the Bay Medical Center for examination, and turned over the investigation to Deputy Jason Larson. Deputy Larson met with M.C. and also observed that she was extremely upset and had been crying. During the interview, she was withdrawn. M.C. related to Deputy Larson an account of what happened that was essentially the same as what she had stated to Ms. Ingram. She identified the massage therapist as Respondent. At some point, Respondent was taken to the Sheriff's Office, and Deputy Larson interviewed him and advised him of his Miranda rights. Respondent declined to give a taped statement, but did speak with Officer Larson. Initially, he denied M.C.'s report, but as the interview continued, he stated that it was possible he may have accidentally penetrated M.C.'s vagina with the tip of his finger. He also stated that if he was in his country, M.C. would have given him a tip and thanked him. At the hospital, a rape kit was administered. M.C. continued to be very upset by the incident, and the two couples shortened their planned vacation to return home as a result. Respondent claims that M.C. was a difficult client to massage because she was heavy-set. By contrast, Ms. Ingram testified that she thought M.C. was approximately five feet, four inches tall, and weighed approximately 140 pounds. Respondent also testified that during the massage, M.C. brought her hands out too far, making it difficult for him to continue massaging her and also avoid intimate contact with her hands. Finally, he claimed, essentially, that M.C. was masturbating during the massage. Respondent's testimony is not credited. Massage therapy training often involves blindfold massage, and 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 Florida Administrative Code 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 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.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Board of Massage Therapy enter a final order finding Respondent guilty of violating sections 456.063(1); 456.072(1)(v); 480.046(1)(h) and(o); and 480.0485, Florida Statutes, and Florida Administrative Code Rule 64B7-26.010; finding Respondent not guilty of violating rule 64B7-30.001(5); and imposing a fine of $1,000 and revoking his license to practice massage therapy. DONE AND ENTERED this 1st day of September, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 September, 2011. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Manshi Shah, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Giuseppe Chiarizia P.S.C. 451, Box 490 FPO, AE 09834 (giuseppechiarizia@hotmail.com) Nicholas W. Romanello, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32299-1701 Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32299-1701
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 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 rule 64B7-30.001(5); 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 within the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. Mr. Rodriguez is a licensed massage therapist within the state of Florida, having been issued license number MA 75735. He has been licensed since 2014. Mr. Rodriguez's current address and address of record is 812 Northeast 2nd Street, Apartment 1, Hallandale, Florida 33009. On or about January 9, 2017, Mr. Rodriguez was employed at Om'echaye Wellness & Fitness Center (Om'echaye) located at 1100 East Hallandale Beach Boulevard, Hallandale Beach, Florida 33009. On or about January 9, 2017, Patient R.A., a 24-year- old female, received a body scrub and a massage from Respondent. Patient R.A. had never received a massage at Om'echaye before, though she and her boyfriend lived close by and had eaten lunch at the Om'echaye restaurant a few times. It was on one of these earlier visits that she saw a special promotion for a body scrub and Swedish massage. She bought a gift card for the promotion for her boyfriend for his birthday. He was not enthusiastic about getting a massage there, however, so they decided that Patient R.A. would use the card herself. She reported what happened during the massage shortly after the incident. Her testimony at hearing was detailed and was consistent with previous accounts. These factors, along with her demeanor at hearing, made her testimony clear and convincing, and her testimony is credited. Patient R.A.'s appointment was at 6:15 p.m., and she arrived a few minutes early. The receptionist introduced her to Mr. Rodriguez. In the massage room, Patient R.A., having never received a body scrub before, asked Mr. Rodriguez whether she should leave her underwear on, as she had always done during massages she had received. He told her that no one did that, saying that otherwise it would be difficult to perform the body scrub. Patient R.A. asked if she should go under covers, but he directed her not to. He asked her to lie face up on the massage table and left the room so that she could undress. There were two 16" x 24" towels on the table, with which she covered herself notwithstanding his instruction, placing one over her lower body and one over her breasts. Mr. Rodriguez returned to the room and began to wet her skin with a hot towel. He asked her how she heard about Om'echaye. She told him about the gift card she had originally bought for her boyfriend's birthday, and that it was almost her birthday and that she was using the card. He learned that she was a foreign student from Germany studying psychology. He told her that his sister-in-law was a psychologist in Brazil. Patient R.A. asked him if he was from Brazil, and he told her no, that he was from Peru. He began the body scrub as they were talking. He applied a coconut and sugar body scrub solution, pushing her legs apart as he quickly worked up her legs, the back of his hands touching her vagina several times. As he bent her leg at the knee the towel slid onto her stomach, exposing her. He removed the towel completely, touched her vagina again, and then scrubbed the front part of her vagina with the body scrub. Mr. Rodriguez continued working up her body, removing the upper towel and, without asking her, began scrubbing her breasts. Afterwards, he removed the scrubbing solution from the front of her body with a hot towel. He then asked her to turn over. Mr. Rodriguez scrubbed the back body of Patient R.A. He scrubbed her buttocks and touched her anus with the side of his hands. After wiping off the body scrub solution, he told her that he would begin the Swedish massage. Mr. Rodriguez did not receive consent from Patient R.A. that she would remain undraped. He dripped hot oil onto Patient R.A. and rubbed it over her body, rubbing her buttocks, with his hands frequently against her anus, spilling oil down her buttocks. He then asked her to turn over. He massaged Patient R.A.'s front, including her breasts, and touched her vagina. He then began to rub his finger against her clitoris. Patient R.A. grabbed his wrist and told him not to touch her down there. He then returned his massage to her breast area and began to tickle her nipples. He moved his hands to her lower body several other times, touching her vagina. He came close to her clitoris, but did not touch her there again. Less clear and convincing was Patient R.A.'s testimony that Mr. Rodriguez pressed his penis against her elbow at some point during the massage. In cross examination, she stated: Q: Now, did you say in your direct testimony that there was an erect penis that touched you? A: At first was the--I believe so, but I'm not sure. That's what I said first. And even--then I mentioned I felt his genitals, but I don't think he was erect. I'm not sure. I felt it, but if he was erect-- Q: Okay. So something-- A: --I'm not sure-- Q: --something touched you, but you don't know whether it was his penis or his arm or-- A: His genitals. Patient R.A. stated at the hearing that she did not see Mr. Rodriguez touch her, but felt him touch her right arm. She did not remember how many times. Her testimony that Mr. Rodriguez pressed his penis against her was not clear and convincing. After the massage, Mr. Rodriguez asked Patient R.A., "How was it?" Patient R.A. responded that it was not a Swedish massage and that he needed to be careful about the way he performed massages. She asked him if he always did his massages like that. He responded saying, "That's how I do it with my clients. I don't know what other massage therapists do." She again said that he needed to be very careful with what he was doing. He apologized, saying, "Thank you for being cool." He gave her his business card. He offered to give her a deep tissue massage for free at his studio. He said that all of his clients come there because "it is too expensive here." Patient R.A. declined. The door to Om'echaye was locked because of the late hour that she was leaving, and Mr. Rodriguez had to open the door to let her out. At hearing, Patient R.A. said that she did not do more to prevent the assault because at first she refused to believe it was happening and later she was afraid. Patient R.A. was ashamed of herself when she got outside Om'echaye, thinking she should have stood up for herself more. At first, she was not going to tell anyone that she had been sexually assaulted, but ended up telling her boyfriend and going back to Om'echaye early the next morning and talking to the owner. She met with police later that day and gave them statements. She later notified the Department. Respondent denied Patient R.A.'s account in every material element. He testified that he never touched her vagina, anus, breasts, nipples, or clitoris, either intentionally or accidently. He testified that he acted within the scope of massage therapy practice and that no sexual misconduct occurred. He testified that she remained properly draped the entire time. He suggested that Patient R.A. made up the entire incident and that there was no video recording or witnesses.1/ Respondent also asserted that he would not have committed sexual misconduct against Patient R.A. because she was a female and he was gay, and so was not attracted to her. Curiously, Mr. Rodriguez sought to bolster this claim with testimony that he had performed some massage therapy at Ed Logan's, represented to be a gay resort, and that at one time he had advertised in a gay publication. Since the massage therapist-patient relationship does not appropriately involve sexual motivation of any kind--whether homosexual, bisexual, or heterosexual--it is not entirely clear why Mr. Rodriguez was suggesting that these activities, even had they been supported by additional documentary evidence of some sort, somehow confirmed his testimony. In any event, the assertion that he was gay, even if accepted, would not exonerate Mr. Rodriguez in light of the clear and credible testimony of R.A. in this case. The definition of sexual activity is not limited to physical contact intended to erotically stimulate the therapist, but also includes contact intended to erotically stimulate the patient, as well as contact which is likely to cause such stimulation, regardless of intention, as discussed further in the Conclusions of Law below. Respondent's touching of Patient R.A.'s breasts, nipples, anus, vagina, and clitoris, as described by Patient R.A., was direct physical contact likely to erotically stimulate either person or both. It was clearly outside the scope of practice of massage therapy. The touching described by Patient R.A. was sexual activity as defined under the rule. Patient R.A.'s testimony was clear and convincing and proved that Respondent used the therapist-patient relationship to engage in sexual activity. Patient R.A. testified that after reporting the incident, she "could not function anymore." She saw a poster saying "get a massage for $20 for 30 minutes" on campus, and she broke out in tears. She started counseling and soon after that was put on an antidepressant for a period of five months. Mr. Rodriguez testified that he depends on his massage business to make his living, that he is no longer working at Om'echaye spa, and that he has been painting buildings to pay his bills. There was no evidence to indicate that Mr. Rodriguez has ever had any prior discipline imposed in connection with his massage therapy 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 Ernesto Rodriguez in violation of section 480.0485, Florida Statutes, and Florida Administrative Code Rules 64B7-26.010 and 64B7-30.001(5), constituting grounds for discipline under section 480.046(1)(p), Florida Statutes; imposing a fine of $2,500.00; revoking his license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 30th day of August, 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 30th day of August, 2017.
