The Issue The issues for determination in this case are whether Respondent committed the acts alleged in the Administrative Complaint, and if so, whether Respondent's license to practice massage therapy in Florida should be revoked or otherwise disciplined.
Findings Of Fact Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION (DBPR), is the agency of the State of Florida vested with the statutory duty and authority to administer the provisions of Chapter 480, Florida Statutes, governing massage practice. Respondent, ROBERT WILLIAM IVANY, was initially licensed as a massage therapist in the State of Florida on July 8, 1986, and presently holds license number MA 0006899 (Massage). Respondent's license is currently in "delinquent/renewal notice prepared" status. Respondent's current license biennium expires on January 31, 1997. At all material times hereto, Respondent was employed as a licensed massage therapist at the Pasadena Wellness Center in St. Petersburg, Florida. On or about January 28, 1994, complainant, Linda Schaufele, arrived at the Pasadena Wellness Center to receive a massage. Ms. Schaufele had been experiencing soreness in her shoulder and neck and wanted a massage to alleviate this condition. Ms. Schaufele had previously received massages many times; however, this was her first visit to the Pasadena Wellness Center. Ms. Schaufele was sent by the staff receptionist at the Pasadena Wellness Center to a massage room, where she removed her clothing except for her underwear. Respondent subsequently entered the massage room. Prior to this time, Ms. Schaufele did not know Respondent, and had no previous contact with Respondent. Respondent entered into a therapist-client relationship with Ms. Schaufele. Ms. Schaufele informed Respondent of the soreness in her shoulder and neck. Ms. Schaufele agreed to a full body massage, but requested Respondent concentrate on her shoulder and neck. Respondent began the massage with Ms. Schaufele lying on her stomach. Respondent used oil or lotion during the massage. After massaging her shoulders, neck and working down her back, Respondent turned Ms. Schaufele over to lie on her back and began to massage her from the waist down. At this time Respondent distinctly placed his hand between Ms. Schaufele's legs into her pubic area. Ms. Schaufele immediately stiffened her legs to prevent Respondent from continuing to keep his hand between her legs. Respondent removed his hand from between Ms. Schaufele's legs, and finished the massage. Respondent used the therapist-client relationship to engage in sexual activity with Ms. Schaufele. Ms. Schaufele was very uncomfortable during the remainder of the massage, and was upset about the Respondent's actions. Subsequent to this incident on January 28, 1994, Ms. Schaufele became acquainted with the owner of the Pasadena Wellness Center. Ms. Schaufele then informed the owner of the Respondent's actions which occurred during her massage on January 28, 1994. Ms. Schaufele was told by the owner that there had been other complaints regarding Respondent. On or about May 12, 1993, complainant, Nancy Scotti, arrived at the Pasadena Wellness Center to receive a massage. Ms. Scotti had never received a massage before, and had no prior experience with a licensed massage therapist. Ms. Scotti was instructed by the staff receptionist to fill out certain forms. Respondent then came to the reception area and led Ms. Scotti to a massage room. Ms. Scotti did not know Respondent, and had no previous contact with Respondent. Respondent entered into a therapist-client relationship with Ms. Scotti. Respondent instructed Ms. Scotti to "get ready", which in response to, Ms. Scotti undressed, except for her underwear, and lay down on her stomach on the massage table. Ms. Scotti covered herself with a sheet that was provided in the massage room. Ms. Scotti informed Respondent that she had experienced pain in her upper back, shoulders and neck. Ms. Scotti did not request any particular kind of massage. Respondent began the massage with Ms. Scotti lying on her stomach. Respondent massaged her neck, shoulders, and worked down her back. Respondent used and applied a lotion to Ms. Scotti's body during the massage. Respondent then proceeded to massage Ms. Scotti's arms and legs, working his way back to her inner thighs and crotch area. While massaging her inner thighs Respondent asked Ms. Scotti why she was not indicating her enjoyment of the massage. At this point Ms. Scotti was becoming increasingly uncomfortable and concerned; however, due to her apprehension and her inexperience with a licensed massage therapist Ms. Scotti did not express her concern, or otherwise stop the massage. Respondent then placed his hands inside Ms. Scotti's underwear and massaged her buttocks. Respondent turned respondent over on her back, and massaged her neck and shoulders. Respondent then uncovered and with one hand massaged Ms. Scotti's breasts, and with the other hand digitally penetrated Ms. Scotti's vagina repeatedly. Respondent used the therapist-client relationship to engage in sexual activity with Ms. Scotti. Ms. Scotti was frightened and alarmed. Respondent attempted to remove her underwear, and she pushed him away. Respondent then inquired if Ms. Scotti had reached orgasm. She did not respond, and Respondent concluded the massage session and left the massage room. Ms. Scotti remained frightened and alarmed. She dressed, left the Pasadena Wellness Center, and walked outside where her friends Audra Radvil, Bernadette Robinson, and Peg Etchison were waiting for her. At this time Ms. Scotti appeared distraught. She began crying and informed her friends what had occurred. Her friends observed a law enforcement officer in the parking lot, and approached the officer and related the incident. A second officer, Deputy Sheriff Craig Bornstein, was summoned to the scene. Ms. Scotti related the incident to Deputy Bornstein. Ms. Scotti was then transported to the Pinellas County Sheriff's Office where her sworn statement was taken by Detective Kenneth Kanoski. Ms. Scotti was then taken to the Pinellas County Health Unit where she underwent a sexual assault victim examination. The examination was conducted by Sylvia Franklin, an advanced registered nurse practitioner with extensive experience in conducting such examinations. The examination included drawing blood, taking vaginal and breast swabs, and obtaining saliva and urine samples. The chain of custody of the samples obtained during the examination was preserved. Detective Kanoski investigated this incident, and obtained a sample from Respondent of the lotion used by Respondent on Ms. Scotti. The lotion was Revlon Aquamarine Body Lotion. The specimens obtained during the examination of Ms. Scotti and the sample lotion obtained during the investigation by Detective Kanoski were sent for analysis to the Federal Bureau of Investigation (FBI) laboratory. The results of the FBI analysis showed the presence of isopropyl palmitate in the lotion obtained from Respondent, as well as in the vaginal and breast swab specimens taken during the examination of Ms. Scotti. Isopropyl palmitate is not a naturally occurring substance, and is not found in any product normally intended for use in the vaginal area. Isopropyl palmitate was contained in the lotion that was used by Respondent, and was introduced into Ms. Scotti's vagina as a result of Respondent's actions. Following this incident, Ms. Scotti has missed work and become withdrawn, depressed, and apprehensive toward others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Massage, enter a final order revoking Respondent's license to practice massage therapy. DONE and ORDERED this 15th day of October, 1996, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Robert W. Ivany 762 15th Avenue South St. Petersburg, Florida 33701 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anna Polk, Executive Director Board of Massage Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 this case 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, Mr. John D. Nielsen-Collins was licensed as a massage therapist in Florida, having been issued license number MA 63151. At all times material to this proceeding, Mr. Nielsen- Collins worked as an independent contractor at VCHAC in West Palm Beach, Florida. S.T., an adult female, started receiving massages at VCHAC in 2012. Her physical therapist had recommended massage to help manage some scarring associated with endometriosis and pelvic adhesive disease. S.T. would receive a standard “deep tissue” full body massage about every week or ten days, almost always from Mr. Nielsen-Collins. On September 22, 2014, S.T. went to VCHAC for a massage. She greeted Mr. Nielsen-Collins. He then left the room while she got undressed. She laid face-up on the massage table, covered with draping. Mr. Nielsen-Collins began the massage as usual, massaging her neck, arms, and legs. She then flipped over to a prone position and he massaged her back and upper portions of her buttocks with firm kneading, as he always did. Mr. Nielsen-Collins then began to massage the lower portions of her buttocks. Rather than kneading, it was more of a light rub, which S.T. described as much more “sensual” in nature. Mr. Nielsen-Collins used both hands on either side of S.T.'s buttocks to spread the cheeks and expose her anus. In progressive steps, he moved his hands closer and closer toward S.T.’s anus, finally rubbing it through her thong. This contact was not accidental. S.T. flinched, and Mr. Nielsen-Collins removed his hands from her buttocks. S.T. felt uncomfortable, but she was trying to convince herself that it was just a mishap. She “let it go because when I flinched, he did move away.” The draping was moved to expose S.T.’s right leg, and Mr. Nielsen-Collins began massaging it, beginning at the calf and moving up toward her thigh. She noticed he was gradually pulling her right leg apart from her other leg, further exposing her. He started to rub her inner thigh, and then began to massage S.T.'s vagina through her underwear. S.T. testified that it did not feel like a massage, but like an “attempted arousal.” This contact was not accidental. Mr. Nielsen-Collins then asked her, “How is the pressure?” S.T. reached behind her in an attempt to remove Mr. Nielsen-Collins’s hand. Mr. Nielsen-Collins took S.T.’s hand and held onto it, preventing her from removing his other hand from her vagina. S.T. then tried to move her right shoulder to twist around, and then the hand that was holding her hand pressed down on her back, steadying her in position. S.T. closed her legs tighter, and Mr. Nielsen Collins removed his hand. Mr. Nielsen-Collins let go of S.T.’s shoulder and covered her to the waist. He rubbed her back for a moment. He fanned out the cover and put in on her back. He said that the massage was complete and left the room. S.T. was confused and extremely hurt. She testified that she had trusted Mr. Nielsen-Collins for a year-and-a-half. She was in a vulnerable position and he was supposed to be professional, but he had absolutely violated her trust. She got up, got dressed, left a tip on the counter as she always did, and walked out. She left the building, got in her car, and drove off. When she got to the corner, she determined she had to report the incident, pulled to the side of the road, and called VCHAC on her cell phone. She asked the person who answered to let her speak with the manager. She then told Ms. Samantha Trevegno, the office manager, that she had had an “inappropriate experience” during her appointment, and explained how she had been touched inappropriately by Mr. Nielsen-Collins. S.T. never returned to VCHAC for another massage. Mr. Nielsen-Collins had left VCHAC to go to a local supermarket. When he returned, Ms. Trevegno told him she wanted to talk to him in the pilates studio. She told Mr. Nielsen- Collins that she had received a call from S.T. alleging an inappropriate massage. Mr. Nielsen-Collins did not ask Ms. Trevegno what S.T. had claimed happened, but instead immediately became visibly upset, teared up, and stated, “I thought she was sweet on me, too.” He told Ms. Trevegno that he knew that she needed to end his contract with VCHAC. Ms. Trevegno left and talked to Dr. Horowitz, the chiropractic doctor at VCHAC. When she returned she told Mr. Nielsen-Collins that he should leave. Mr. Nielsen-Collins asked if he should talk to the doctor. Ms. Trevegno said, “No, he wants you to go.” S.T. did not request that Mr. Nielsen-Collins massage the area between S.T.’s buttocks, her anus, or her vagina. Mr. Nielsen-Collins did not request permission to touch the area between S.T.’s buttocks, her anus, or her vagina and she did not give him consent to do so. Consistent with the testimony of Ms. Iris Burman, L.M.T., Mr. Nielsen-Collins’s touching of the area between S.T.’s buttocks, her anus, and her vagina, as described here, was outside the scope of generally accepted examination or treatment of massage therapy patients. Mr. Nielsen-Collins’s contrary contention, to the effect that he only performed standard massage techniques on patient S.T., and that her perception that she had been inappropriately touched must have been based upon transfer of sensation was not credible, and is rejected. Mr. Nielsen-Collins used the massage therapist-patient relationship to engage in sexual activity and to attempt to induce patient S.T. to engage in sexual activity. Mr. Nielsen- Collins engaged in sexual misconduct in the practice of massage therapy. Mr. Nielsen-Collins has never had any prior discipline imposed against his 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 John D. Nielsen-Collins violated section 480.0485, constituting grounds for discipline under section 480.046(1)(p), 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 22nd day of June, 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 22nd day of June, 2015. COPIES FURNISHED: John D. Nielsen-Collins, L.M.T. 321 Fordham Drive Lake Worth, Florida 33460 Lindsay Annette Wells Grogan, Esquire Louise Wilhite-St Laurent, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399 (eServed) Christy Robinson, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399 (eServed)
The Issue The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of provisions of Florida Administrative Code Rule 64B7- 26.010 and sections 480.046(1)(o) and 480.0485, Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Massage Therapy, is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. At all times material to this proceeding, Ms. Xu was a licensed massage therapist in the state of Florida, holding license number MA56426. During all times relevant to the complaint, Ms. Xu was employed by Massage Elite, located at 800 East Hallandale Beach Boulevard in Hallandale Beach, Florida. On November 22, 2010, Officer F.C., working in an undercover capacity with Officer C.T., went to Massage Elite, where they were greeted by Ms. Xu, who introduced herself as Diana. Ms. Xu stated that a one-hour full body massage was $70.00. They each paid, and Officer F.C. was taken to a separate room and told to disrobe and lie face down. Minutes later, Ms. Xu came into the room and began a massage. After some time, Ms. Xu asked Officer F.C. to turn over. After he did so, Ms. Xu began touching Officer F.C. on his penis, asking, "Do you want me to massage this?" Officer F.C. asked her, "How much?" Ms. Xu replied, "Sixty dollars." Officer F.C. said he only had $30.00, and Ms. Xu replied, "No, not for thirty, maybe next time." The massage was then completed. On November 23, 2010, Officer F.C. returned to Massage Elite. Other arrests were made at that time, but Ms. Xu was not on the premises. On November 30, 2010, Officer F.C. returned to Massage Elite with Officer R.A. He asked for Diana, and they called her from the back. Ms. Xu came in. Officer F.C. made a positive identification, based upon her appearance, that Ms. Xu was the same woman who had earlier introduced herself to him as Diana, and had given him the massage. She was placed under arrest. Ms. Xu's contrary testimony, to the effect that she was not at work on November 22, 2010, that she had never seen Officer F.C. before November 30, 2010, is not credible, and is rejected. Ms. Wei Zhou, Ms. Xu's daughter, testified through deposition that she came to Florida for Thanksgiving in 2010, and that her mother stayed with her the entire time in a hotel. She said she could not remember exactly when she was there or if she arrived before or after Thanksgiving Day. At another point in her testimony, she said she arrived around the 19th or 20th of November. She said she couldn't remember if her grandmother traveled with her or not. She indicated that she did not know what kind of work her mother did. Her testimony, to the extent it was intended to establish that Ms. Xu did not work at Massage Elite on November 22, 2010, was not credible. Her vague account of events did not cast doubt on Officer F.C.'s clear and convincing testimony. As noted in the deposition testimony of Ms. Jennifer Mason, there is no reason for a licensed massage therapist to ever touch the genitalia of a patient. Officer F.C. paid for a massage, and Ms. Xu began to give him a massage. She was governed by the requirements of the massage therapist-patient relationship. Ms. Xu's actions on November 22, 2010, were outside the scope of generally accepted treatment of massage therapy patients. Ms. Xu used the massage therapist-patient relationship to attempt to induce Officer F.C. to engage in sexual activity and to attempt to engage him in sexual activity. Ms. Xu engaged in sexual misconduct in the practice of massage therapy. There is no evidence that Ms. Xu has ever had any prior discipline imposed against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy, enter a final order finding Ms. Ranjie Xu in violation of Florida Administrative Code Rule 64B7-26.010 and section 480.0485, Florida Statutes, constituting grounds for discipline under section 480.046(1)(o), Florida Statutes; revoking her license to practice massage therapy; imposing a fine of $1000.00; and imposing costs of investigation and prosecution. DONE AND ENTERED this 4th day of April, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2017.
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The Respondent, Dana Carlos, is a licensed massage therapist in the State of Florida, having been issued license number MA 0002811. The Respondent has been so licensed at all times material to this proceeding. On December 10, 1986, the Respondent was the co-owner of a massage establishment known as Massage by Dana and Jan, which at that time was located at 721 U.S. Highway 1, Suite 222, North Palm Beach, Florida 33408. That establishment was licensed by the State of Florida, having been issued license number MM 0000202. When Inspector Jean Robinson inspected that establishment on December 10, 1990, Gemma V. Koder was massaging a client without being supervised by either the Respondent or Jan Carlos. The client had come in early and Ms. Koder had called the Respondent by telephone to ask what she should do. The Respondent had told Gemma V. Koder to go ahead and start massaging the client and that she (the Respondent) would be there as soon as possible. The Respondent was approved as a sponsor for Gemma V. Koder, which sponsorship terminated on May 14, 1987. Gemma V. Koder was an apprentice for Dana Carlos. Gemma V. Koder had an apprentice license that allowed her to perform massages only when either the Respondent or Jan Carlos were physically present to supervise her. Either the Respondent or Jan Carlos could supervise Ms. Koder, because they were "co-sponsors." The Respondent later moved her massage establishment to 3700 Georgia Avenue, West Palm Beach, Florida. At that location she practiced massage under the name Massage by Dana and Jan. Dana Carlos leased the premises at that location. On April 13, 1988, the premises at 3700 Georgia Avenue were inspected by Inspector Jean Robinson. On that day Tammy Coxey was working as an unlicensed apprentice for the Respondent. The Respondent had applied for an apprentice license for Tammy Coxey, but the apprentice license was never approved by the Board of Massage. Therefore, the Respondent was never approved as a sponsor for Tammy Coxey and the Respondent knew that Tammy Coxey did not have an apprentice license or any other type of license. Nevertheless, admittedly motivated by profit potential, the Respondent disregarded the licensing requirements and put Tammy Coxey to work. On April 13, 1988, the room in which Tammy Coxey was performing massages as an employee of the Respondent was across the hall from the licensed massage establishment the Respondent was authorized to operate. The room in which Tammy Coxey was performing massages as an employee of the Respondent was never a licensed massage establishment. On the 6th and 7th of October, 1988, Sergeant Harvey Starr, of the West Palm Beach Police Department, called the establishment known as Massage by Dana and Jan and spoke to the Respondent on the telephone. He inquired about a "full body treatment" and was told that "all her girls gave full body treatments that included a release." In street jargon, a massage that includes "full body treatment including release," means a massage that includes masturbation to climax. On October 11, 1988, Sergeant Starr made an appointment for a massage and went to the premises of Massage by Dana and Jan, where he was met by the Respondent. Sergeant Starr told the Respondent that his name was "Richard," that he was the one who had called her on the telephone, and then asked what the charge was for a "full body treatment." The Respondent said it would be $25. Sergeant Starr than asked if that included a "release" and the Respondent told him that would cost $28. Sergeant Starr then specifically asked the Respondent if a "release" meant that he would be masturbated, and the Respondent answered that it did. Sergeant Starr then asked if the Respondent wanted to be paid. She, answered in the affirmative, Sergeant Starr handed her $30, and at that time he identified himself as a police officer and told her that she was under arrest. The Respondent was arrested on the charge of soliciting for the purpose of prostitution. Beginning in 1974 and for several years thereafter, in an effort to compete effectively, attract repeat business, and maintain market share in the Palm Beach County massage market, the Respondent engaged in the practiced of regularly masturbating massage clients.
Recommendation Upon consideration of all of the foregoing, it is recommended that the Board of Massage enter a Final Order in this case to the following effect: Dismissing all charges of violations set forth in Count II of the Amended Administrative Complaint; Dismissing the charges in Count III of the Amended Administrative Complaint that allege violations based on Section 480.47, Florida Statutes (the violations alleged at subparagraphs (a) and (c) of Paragraph 18 of the Amended Administrative Complaint); Finding the Respondent guilty of the violation charged in Count I of the Amended Administrative Complaint; Finding the Respondent guilty of the violations of Section 480.046(1)(e) and 480.046(1)(k), Florida Statutes, alleged in subparagraphs (b) and (d) of Paragraph 18 of Count III of the Amended Administrative Complaint; and Imposing a penalty , for the foregoing violations consisting of the revocation of the Respondent's license. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 4th day of June, 1990. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 89-6091 Consistent with the requirements of Section 120.59(2), Florida Statutes, the following are my specific rulings on the proposed findings of fact contained in the Petitioner's Proposed Recommended Order. Paragraphs 1 through 5: Accepted in substance. Paragraph 6: Rejected as constituting a conclusion of law rather than a finding of fact. Paragraph 7: Rejected as irrelevant to charges in this case. Paragraphs 8 through 14: Accepted in substance. Paragraph 15: Rejected because only record basis is uncorroborated hearsay. Paragraphs 16 through 23: Accepted in substance. Paragraph 24: Rejected as subordinate and unnecessary, even though supported by record evidence. Paragraph 25: Accepted in substance. With regard to the post-hearing submissions of the Respondent, it is first noted that, even after a deadline extension of over a month, the Respondent's post-hearing submissions were filed late. Section 120.59(2), Florida Statutes, requires a ruling on each proposed finding only where proposed findings are submitted "in accordance with agency rules." Rule 22I-6.031(1), Florida Administrative Code, provides for the filing of proposed findings of fact and other proposed matters "within a time designated by the Hearing Officer." The Respondent's post-hearing materials were not submitted in accordance with the cited rule because they were filed beyond the extended deadline. Therefore, Section 120.59(2), Florida Statutes, does not require a specific ruling on each and every random sentence that might arguably constitute a proposed finding wherever found within the 47 pages of assorted post-hearing material submitted by the Respondent. Accordingly, while I have carefully read each of the 47 pages of post-hearing material submitted by the Respondent, I have not attempted the herculean task of gleaning through the Respondent's eclectic accumulation of papers and attempting to sort out the few statements that might arguably be construed as proposed findings of fact from the morass of arguments, statements of law, total irrelevancies, inappropriate documents (such as rejected exhibits), and other documents that serve no useful purpose. Suffice it to say that it is clear that the Respondent is of the view that the Petitioner has failed to prove its case, and it is clear from the findings of fact made in the Recommended Order that the Hearing Officer is, for the most part, of the view that the record in this case warrants an opposite finding. COPIES FURNISHED: Cynthia Gelmine, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Ms. Dana Carlos 4425 Rachael Way West Palm Beach, FL 33406 Mildred Gardner Kenneth D. Easley, Esquire Executive Director General Counsel, Department Board of Massage of Professional Regulation Northwood Centre 1940 North Monroe Street 1940 North Monroe Street Tallahassee, FL 32399-0792 Tallahassee, FL 32399-0792
The Issue The issues in this case are whether Respondent committed sexual misconduct in the practice of massage therapy and failed to appropriately drape a client as alleged in the First Amended Administrative Complaint1 (AAC), and if so, what disciplinary action should be taken against Respondent’s license.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. At all times material to this proceeding, Respondent was licensed as a massage therapist in Florida, having been issued license number MA 80545. In the time since Respondent was licensed, no prior disciplinary action has been taken against her license. Respondent was born in the Liaoning Province, North China, and came to the United States in 2005. Respondent is a U.S. citizen. Respondent attended a Beauty School for her massage education and her educational instruction at school was in English. Further, when she took the examination to become a Florida licensed massage therapist, the examination was in English, and no one helped her to translate the material. Respondent’s address of record is 9986 Red Eagle Drive, Orlando, Florida, 32826.4 At all times relevant to the AAC, Respondent practiced massage therapy, as defined in section 480.033(3), at Golden Asian Massage, LLC, doing business as The Wood Massage (Golden Asian). Golden Asian was located at 1218 Winter Garden Vineland Road, Suite 124, Winter Garden, Orange County, Florida. 4 On November 26, 2019, the parties filed a Joint Pre-hearing Stipulation, stipulating that Respondent’s address of record was in New York. At some point after the March 2016 investigation, Respondent moved out of Florida. Then, either before or after November 26, 2019, Respondent moved back to Florida, but failed to advise her counsel or DOH of her address change. Respondent’s counsel stated that he would ensure Respondent filed the appropriate change of address information with DOH. At the time of the investigation, the LEO had been trained at the police academy, had multiple courses in vice-related investigations, human trafficking investigations, and drug trafficking investigations, including prostitution activities. The LEO has participated in “well over a hundred” undercover prostitution operations. The LEO’s investigation assignments “as a whole” include “anything that would be vice-related, drug trafficking or human trafficking.” The MBI is a joint police task force for the Ninth Judicial Circuit, which includes Orange County and Osceola County. MBI routinely investigates vice, human trafficking crimes, and mid-level to upper-level narcotic organizations. Once the MBI receives a complaint about a massage parlor, an undercover investigation is initiated. An undercover investigation team usually consists of five law enforcement personnel: a supervisor-in-charge; the undercover agent (agent); and two to three additional support personnel. An agent goes into the establishment, posing as a customer. Once the agent is on the massage table, the agent waits for the massage therapist to initiate, either via conversation or through an overt act, a predisposition for sexual activity. In some instances, the massage therapist might glide their fingers in the inner thigh, or speak of some sexual activity. Once the massage therapist initiates an actual sex act, the agent then tries to stop the sex act, while engaging in conversation. On March 9, 2016, after receiving a tip or complaint about the establishment, the MBI conducted an undercover investigation of the Golden Asian. The LEO arrived at the Golden Asian, met Respondent at the counter, and in English, asked for a 30-minute massage. Respondent responded in English and told the LEO it would cost $50 for a 30-minute massage. The LEO agreed to the cost, and Respondent led the LEO to a massage room within the Golden Asian. The LEO got completely undressed and positioned himself on his stomach, face-down on the massage table. Upon entering the room, Respondent grabbed a towel and placed it on the LEO’s back midsection. The LEO described the area covered as “pretty much my buttocks to, like, my lower back,” but the towel was not tucked in. Using oil, Respondent massaged the LEO’s back, thighs, and neck. While the LEO was still on his stomach and roughly ten to 15 minutes through the massage, the towel fell off. The LEO did nothing to dislodge the towel while he was on his stomach. Roughly halfway through the 30-minute massage, Respondent “stopped massaging and it was more of a gliding motion from [the LEO’s] back to [the LEO’s] inner thighs.” With this action, the LEO determined that Respondent was predisposed to engage in sexual activity. Respondent directed the LEO to turn over, which he did. The LEO testified that after he turned over his genitals were exposed. Respondent put more oil on her hands and massaged the LEO’s chest to his thigh area. Respondent further testified that Respondent “would glide and touch [the LEO’s] penis and scrotum.” Respondent asked the LEO if he liked it when Respondent “tapped” the LEO’s penis. The LEO answered “yes” to Respondent’s question. The touching of the LEO’s penis and scrotum again provided the predisposition that sexual activity could be engaged. The LEO then asked Respondent for oral sex, i.e. a blow job. Respondent declined to perform oral sex. The two engaged in talking and hand gesturing regarding manual masturbation and its cost. The LEO testified Respondent raised her hand to indicate manual masturbation would be $40.00. Respondent testified that she said “no” and did not state a price. As provided below, Respondent’s testimony was not credible. The LEO told Respondent that $40.00 was too expensive for masturbation. He then grabbed the original towel that had draped him from between his legs, cleaned the oil, dressed, and left the massage establishment. Shortly thereafter, Respondent was arrested.5 5 The dismissal of Respondent’s criminal charges is not probative of whether she committed the regulatory violations. Respondent’s hearing testimony of how the towel fell off during the LEO’s massage differs from her deposition testimony. At hearing, Respondent testified that when the LEO flipped over, the towel fell off and she did not grab it fast enough. Respondent then added it took her “one minute, two minutes” to adjust the towel. Respondent admitted that she exposed the LEO’s genitals without his permission. However, during her deposition, Respondent blamed the type of oil massage that she was administering to the LEO for the towel falling off. Respondent claimed that her hand movement was “pretty hard. So with the movement, the towel shifting a little bit by little bit, and then [the towel] fell off completely.” Respondent also testified that she “saw it [the towel] dropped off, then [she] put it back right away.” In either instance, the LEO’s genitals were exposed without his consent. At the hearing, Respondent’s description of the towel used on the LEO changed from her deposition. During the hearing, Respondent testified the towel was “one to two feet wide . . . the length is about 1.5 meters [over four feet]. I’m not exactly sure.” However, in her deposition, Respondent provided that the towel was “more like a facial towel. It’s not a very big shower towel, but it’s more a facial towel size . . . one [foot] by two [foot].” Respondent’s testimony describing the LEO’s massage is not clear or credible and is rejected. The LEO’s testimony was credible, clear, convincing, and credited. Ms. Buhler is a licensed massage therapist and based on her education, training, and experience, she is accepted as an expert in massage therapy. “Draping” is covering the body while a massage therapist is working on it for the client’s comfort and privacy. Usually, a sheet is used for draping a client (if the room is too cold, a blanket could be added). As a massage therapist works on specific body areas, that body part is uncovered and the towel repositioned when the therapy to that area is completed. Ms. Buhler opined that the size of the towel (“1 [foot] x 2 [foot]” as described by Respondent in her deposition) is “very small,” and is an unusual drape size. Further, she opined that a “1 x 2 towel barely covers anything. It would be almost impossible not to either view something or potentially accidentally bump something with a drape of that size.” If any drape were displaced during a massage, the standard of care requires that the drape be put back in place immediately, not in one or two minutes. Ms. Buhler opined that “anytime a therapist attempts to, either for their own pleasure or for the pleasure of the client, to get any sort of sexual gratification, that is considered sexual misconduct.” A therapist has a choice when any type of sexual activity is suggested or offered. A therapist can redirect someone, state that the activity is not appropriate for the setting, threaten to terminate the massage, or in fact, terminate the massage by leaving the treatment room. Respondent provided that she continued to massage the LEO for one or two minutes after the request for oral sex. Although Respondent claimed she said “No,” she did not take any affirmative action to terminate the session or remove herself from the situation. Respondent’s actions on March 9, 2016, were outside the scope of generally accepted treatment of massage therapy patients. There is no evidence that Respondent has ever had any prior discipline imposed against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Massage Therapy enter a final order finding Respondent, Mingli Li, in violation of sections 480.046(1)(i) and 480.0485, Florida Statutes, constituting grounds for discipline under section 480.046(1)(p), imposing a fine of $3,500.00; revoking her license to practice massage therapy; and assessing the cost of investigating and prosecuting the Department’s case against Respondent. DONE AND ENTERED this 13th day of February, 2020, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2020. COPIES FURNISHED: Zachary Bell, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Michael S. Brown, Esquire Law Office of Michael S. Brown, PLLC 150 North Orange Avenue, Suite 407 Orlando, Florida 32801 (eServed) Christina Arzillo Shideler, Esquire Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Kama Monroe, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
The Issue The 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
