The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against a licensee on the basis of alleged misconduct set forth in a two-count Administrative Complaint.
Findings Of Fact At all times material to this case, the Respondent, Andrea L. Snyder, was a licensed Massage Therapist, having been issued license number MA-0024773 by the Florida Board of Massage Therapy. At all times material to this case, the Respondent was employed part-time at D & D of Broward, Inc., doing business as "Stress Massage Clinic" at an establishment located at 179 State Road 7, Margate, Florida. On February 9, 1998, Broward County Sheriff Detective Steve Drum entered the Stress Massage Clinic, where he encountered the Respondent. Detective Drum arranged for a one- half hour therapy session with the Respondent for a thirty- dollar fee. The Respondent accepted the fee. The Respondent escorted Detective Drum to a private room and advised him to get comfortable. Detective Drum removed his clothing and then laid himself face down on a massage table, naked, and undraped. Shortly thereafter, the Respondent entered the room and began to massage Detective Drum. After a few minutes, the Respondent asked Detective Drum to turn over. Still naked and undraped, Detective Drum turned over onto his back, and the Respondent continued to massage him. The Respondent then asked Detective Drum if he wanted her to put oil on his genital area. He indicated that he did. The Respondent then indicated that she expected additional compensation for doing so, and Detective Drum agreed to additional compensation. Thereupon, the Respondent removed her shirt, which left her naked from the waist up. She then placed oil on her hands and grabbed Detective Drum's penis and attempted to masturbate him. Detective Drum stopped the attempted masturbation. The Respondent made a second attempt to grab the detective's penis, but he stopped her from doing so, and began to get dressed. Detective Drum then paid the Respondent an additional forty dollars and left the establishment. On March 12, 1998, Detective Drum called the Stress Massage Clinic and made an appointment for a two-girl session. Upon entering the facility on March 12, 1998, Detective Drum was greeted by the Respondent and by another female employee named Kira Talis. Detective Drum paid a fee and was escorted to a massage room. The March 12, 1998, massage session began with Detective Drum lying naked and undraped on a massage table. Both the Respondent and Ms. Talis began performing a massage on Detective Drum. Shortly thereafter, the Respondent and Ms. Talis both removed their shirts and both were naked from the waist up. During the course of the March 12, 1998, massage session, both the Respondent and Ms. Talis attempted to masturbate Detective Drum by grabbing his penis. Detective Drum promptly stopped these attempts to masturbate him by moving the women's hands away from his penis, and by asking them to massage other parties of his body. At the conclusion of the March 12, 1998, massage session, Detective Drum gave a one hundred dollar bill to one of the women to be divided between the two of them.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Massage Therapy issue a final order in this case finding the Respondent guilty of the violations alleged in the Administrative Complaint and imposing a penalty consisting of the following: (a) revocation of the Respondent's license; an administrative fine in the amount of $1,000.00; and assessments of costs related to the investigation and prosecution of this case. DONE AND ENTERED this 3rd day of January, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 3rd day of January, 2001.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Parties The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses. On July 31, 2008, the Department issued Respondent license number MA 54053, which authorized her to practice massage therapy in the state of Florida. Respondent's address of record is 2615 South University Drive, Davie, Florida 33328. The Events Respondent was born in China and, at all times relevant to this proceeding, was a citizen of China. In 2001, Respondent immigrated to the United States and became a citizen of the state of California. In or around December 2006, Respondent enrolled at Royal Irvin College ("Royal Irvin"), an institution located in Monterey Park, California, that offered massage therapy instruction. Some three months later, upon Respondent's successful completion of a course of study comprising 500 hours, Royal Irvin awarded her a degree. Thereafter, Respondent obtained permits to practice massage therapy in three California municipalities and, on July 26, 2007, passed the National Certification Examination for Therapeutic Massage and Bodywork. In early 2008, Respondent relocated to south Florida in pursuit of better-paying employment opportunities. Respondent's search ultimately brought her to "Oriental Massage," whose owner, Ah Ming, informed her that she needed to obtain a Florida license to be eligible for hire. As Royal Irvin was not a Board-approved massage school, Respondent needed to complete a course of study at an approved institution or, alternatively, an apprenticeship program. At the suggestion of Mr. Ming, Respondent telephoned Glenda Johnson, the registrar of the Florida College of Natural Health ("FCNH")——a Board-approved massage school. During their initial conversation, Respondent explained her situation to Ms. Johnson, who, in turn, recommended that Respondent come to her office at FCNH's Pompano Beach campus. Respondent's subsequent appointment with Ms. Johnson and her application for licensure are discussed shortly; first, though, a description of FCNH——and its responsibilities under Florida law——is in order. FCNH, an incorporated nonpublic postsecondary educational entity, holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes (2012).2/ In addition to being duly licensed by the state, FCNH is accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy. Finally, FCNH is a "Board-approved massage school" within the meaning of that term as defined in section 480.033, Florida Statutes. At the times relevant to this proceeding, the minimum requirements for becoming and remaining a Board-approved massage school were set forth in Florida Administrative Code Rule 64B7- 32.003 (Oct. 30, 2007), which provided in relevant part as follows: In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must: Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 1005, F.S., or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . . Apply directly to the Board of Massage Therapy and provide the following information: Sample transcript and diploma; Copy of curriculum, catalog or other course descriptions; Faculty credentials; and Proof of licensure by the Department of Education. (emphasis added). As an institution holding a license by means of accreditation, FCNH must comply with the fair consumer practices prescribed in section 1005.04 and in the rules of the CIE.3/ Regarding these required practices, section 1005.04, Florida Statutes (2008), provided during the relevant time frame as follows: Every institution that is under the jurisdiction of the commission or is exempt from the jurisdiction or purview of the commission pursuant to s. 1005.06(1)(c) or (f) and that either directly or indirectly solicits for enrollment any student shall: Disclose to each prospective student a statement of the purpose of such institution, its educational programs and curricula, a description of its physical facilities, its status regarding licensure, its fee schedule and policies regarding retaining student fees if a student withdraws, and a statement regarding the transferability of credits to and from other institutions. The institution shall make the required disclosures in writing at least 1 week prior to enrollment or collection of any tuition from the prospective student. The required disclosures may be made in the institution's current catalog; Use a reliable method to assess, before accepting a student into a program, the student's ability to complete successfully the course of study for which he or she has applied; Inform each student accurately about financial assistance and obligations for repayment of loans; describe any employment placement services provided and the limitations thereof; and refrain from promising or implying guaranteed placement, market availability, or salary amounts; Provide to prospective and enrolled students accurate information regarding the relationship of its programs to state licensure requirements for practicing related occupations and professions in Florida; * * * In addition, institutions that are required to be licensed by the commission shall disclose to prospective students that additional information regarding the institution may be obtained by contacting the Commission for Independent Education, Department of Education, Tallahassee. (emphasis added). At the time of the events giving rise to this proceeding, the CIE's rule relating to fair consumer practices provided in relevant part as follows: This rule implements the provisions of Sections 1005.04 and 1005.34, F.S., and establishes the regulations and standards of the Commission relative to fair consumer practices and the operation of independent postsecondary education institutions in Florida. This rule applies to those institutions as specified in Section 1005.04(1), F.S. All such institutions and locations shall demonstrate compliance with fair consumer practices. (6) Each prospective student shall be provided a written copy, or shall have access to an electronic copy, of the institution's catalog prior to enrollment or the collection of any tuition, fees or other charges. The catalog shall contain the following required disclosures, and catalogs of licensed institutions must also contain the information required in subsections 6E- 2.004(11) and (12), F.A.C.: * * * (f) Transferability of credits: The institution shall disclose information to the student regarding transferability of credits to other institutions and from other institutions. The institution shall disclose that transferability of credit is at the discretion of the accepting institution, and that it is the student's responsibility to confirm whether or not credits will be accepted by another institution of the student's choice. . . . No representation shall be made by a licensed institution that its credits can be transferred to another specific institution, unless the institution has a current, valid articulation agreement on file. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: Units or credits earned at and transferred from other postsecondary institutions, when congruent and applicable to the receiving institution's program and when validated and confirmed by the receiving institution. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving institution. * * * (11) An institution is responsible for ensuring compliance with this rule by any person or company contracted with or employed by the institution to act on its behalf in matters of advertising, recruiting, or otherwise making representations which may be accessed by prospective students, whether verbally, electronically, or by other means of communication. Fla. Admin. Code R. 6E-1.0032 (July 23, 2007)(emphasis added). As a duly-licensed, accredited, Board-approved massage school, FCNH was, at all relevant times, authorized to evaluate the transferability of credits to FCNH from other massage schools, so that credits earned elsewhere (including from schools that were not Board-approved) could be applied toward the award of a diploma from FCNH. In making such an evaluation, FCNH was obligated to follow the standards for transfer of credit that the Board had established by rule.4/ Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, sign, and attach to the student's transcript the Board's Transfer of Credit Form, by which the school's dean or registrar certified that the student's previously-earned credits, to the extent specified, were acceptable in lieu of the student's taking courses at FCNH. Returning to the events at hand, Respondent met with Ms. Johnson, FCNH's registrar, on March 17, 2008. Notably, Ms. Johnson possessed actual authority, on that date and at all relevant times, to generate official transcripts and diplomas on behalf of FCNH. The meeting, which took place on a weekday during normal business hours, was held in Ms. Johnson's office——located on the first floor of a multi-story building on FCNH's Pompano Beach campus. Upon Respondent's arrival (at the main entrance), a receptionist summoned Ms. Johnson, who, a short time later, appeared in the lobby and escorted Respondent to her office. During the meeting that ensued, Respondent reiterated (with her limited English skills) her desire to obtain licensure in Florida as a massage therapist. To that end, Respondent presented Ms. Johnson with various documents, which included her diploma and transcript from Royal Irvin, copies of her existing professional licenses, and proof of her national certification. As the meeting progressed, Ms. Johnson made copies of Respondent's records and asked her to sign an FCNH enrollment agreement, which Respondent did. The agreement, which is part of the instant record, indicates that Respondent was enrolling for the purpose of "(Transfer of Licensure) Therapeutic Massage Training." The agreement further reflects, and Respondent's credible testimony confirms, that, on the date of their meeting, Ms. Johnson collected $520.00 in fees5/ from Respondent. In addition to the enrollment agreement,6/ Ms. Johnson filled out, and Respondent signed, a three-page form titled, "State of Florida Application for Massage Therapist Licensure." In the application, Respondent truthfully disclosed, among other things, that she had completed 500 hours of study at Royal Irvin; that Royal Irvin was not approved by the Board; and that she had not attended an apprenticeship program. Before the meeting ended, Respondent observed Ms. Johnson print and sign two documents: an FCNH Certificate of Completion, which reflected that Respondent had satisfied a two- hour course relating to the prevention of medical errors; and an FCNH Certificate of Completion indicating the completion of a "Therapeutic Massage Training Program (Transfer of Licensure)." When asked about the documents, Ms. Johnson informed Respondent, erroneously, that her prior coursework and existing credentials were sufficient for licensure. (Among other things, Ms. Johnson should have advised Respondent that Board-approved coursework in "HIV/AIDS" and the "prevention of medical errors"——neither of which Respondent completed until after7/ the Complaint was filed in this matter——was required8/ for licensure.) All Respondent needed to do, Ms. Johnson incorrectly explained, was read an FCNH-prepared booklet concerning the prevention of medical errors. Consistent with Ms. Johnson's instructions, Respondent took the booklet home and reviewed its contents. In the weeks that followed, the Department received Respondent's application for licensure and various supporting documents, which included: the FCNH certificates (discussed above); a "Transfer of Credit Form" signed by Ms. Johnson, which indicates that FCNH accepted Respondent's credits from Royal Irvin, and, further, that Respondent's coursework at Royal Irvin included a two-credit class involving the prevention of medical errors; an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing that Respondent had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)"; Respondent's diploma and transcript from Royal Irvin; and a copy of Respondent's national certification as a massage therapist. Collectively, the credit transfer form, the FCNH certificates, and the FCNH transcript "signify satisfactory completion of the requirements of an educational or career program of study or training or course of study" and constitute a "diploma" within the meaning of that term as defined in section 1005.02(8), Florida Statutes. (These documents, which Respondent's FCNH diploma comprises, will be referred to hereafter, collectively, as the "Diploma.") On May 30, 2008, the Department provided written notification to Respondent that, upon initial review, her application was incomplete because it failed to include copies of her California esthetician's license and massage permit from the city of Costa Mesa, California. Significantly, the correspondence noted no other irregularities or omissions concerning Respondent's application or supporting documentation. Consistent with the Department's request, Respondent furnished copies of her esthetician's license and massage permit from Costa Mesa. Thereafter, on July 31, 2008, the Department issued Respondent her license to practice massage therapy. Although the Department seeks to characterize the issuance of Respondent's license as a "mistake" on its part, such a contention is refuted by the final hearing testimony of Anthony Jusevitch, the executive director of the Board. Mr. Jusevitch testified, credibly, that the Respondent's application materials contained no facial irregularities or flaws that would have justified a denial: Q. Mr. Jusevitch, is this, then, the complete application file that was received by the board? A. Yes. Q. When you look at all of the documents in this application file, is there anything in the file that would have caused the Board of Massage Therapy to reject this application? A. I didn't see anything that would have cause[d] us to reject this application when I review it; no. * * * A. No, there was nothing irregular about the application. . . . Final Hearing Transcript, pp. 83; 86. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination (which the NCB administers) from FCNH graduates whose transcripts seemed irregular. What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin, and that the same member of FCNH's administration——i.e., Ms. Johnson——had accepted their transfer credits. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected some anomalies in them. She was unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students. Ms. Wade confronted Ms. Johnson with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them, but she denied——untruthfully, at least with respect to her dealings with Respondent——ever having taken money for doing so. (Ms. Johnson provided the rather dubious explanation that she had been merely trying to "help" people.) Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Thereafter, Ms. Wade notified the Department that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH cooperated. The investigation uncovered approximately 200 to 250 graduates, including Respondent, whose credentials FCNH could not confirm.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding Respondent not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 14th day of June, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 14th day of June, 2013.
The Issue The issues to be resolved are whether Respondent committed the offenses charged in the Administrative Complaints and, if so, what penalties should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of massage therapy practice pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. Respondent, Terrence Grywinski, is a licensed massage therapist in the State of Florida and holds license number MA 6049. Respondent’s mailing address is 6419 Meandering Way, Lakewood Ranch, Florida 34202. Respondent, Terrence Grywinski Massage, is licensed as a massage establishment in the State of Florida and holds license number MM 18059. The establishment’s physical location is 1188 Tamiami Trail, Sarasota, Florida 34236, and this location is the location where all appointments relevant to the facts in this case were scheduled and conducted. Respondent has been licensed to practice massage therapy in Florida since on or about July 9, 1985. The establishment was licensed as a massage establishment on or about March 20, 2006. Respondent is the sole owner and sole employee of the establishment, which conducts business as Advanced Craniosacral Therapy. No evidence was presented to indicate that either license has been previously disciplined by the Board. As a licensed massage therapist, Respondent is subject to the state of Florida laws and rules governing licensed massage therapists, and the establishment that he owns is likewise subject to the laws and rules governing massage establishments. Respondent does not practice traditional massage therapy and has not done so since approximately 1995. He was trained in a modality called craniosacral therapy (CST) in 1995, and has performed that modality exclusively since that time. According to Respondent, trauma of any kind, whether emotional or physical, causes a tremendous force of energy to come into the body, and the body tries to protect itself by “shortening” and isolating the energy. This isolation of the energy created by trauma is what creates areas of tension within the body. The theory behind CST is that the body will correct itself when it feels “safe.” CST works with the fascia connective tissue that attaches muscles to the bone, and encases a person’s organs, brain, and spinal cord. CST uses very gentle holds to create a safe space for the body, which will help the body slip into a corrective reorganizational healing mode. When a person undergoes CST, the fascia will start to release and the person will feel a “letting go” or release in the tissue. CST does not involve manipulation of the tissue, but rather, a series of holds that may last in any one place for five to ten minutes. The amount of pressure applied is “whatever pressure the body tells you it needs,” but generally no more than five grams of pressure. According to Faith Buhler, who testified by deposition as an expert for the Department, when there is a release, there is a different pulse in the body. Respondent trained in CST through the Upledger Institute, which was established by John Upledger. Respondent has received extensive continuing education in CST and the majority of his statutorily required continuing education deals with the performance of this modality. Typically, Respondent’s first-time clients make an appointment for CST and are given a code to enter the second floor of the building where Respondent’s office is located. He greets patients in a common waiting room and takes them to the one-room office where therapy takes place. The office contains two chairs, a massage table, a small side table where a “cupping” machine is stored, and a bookshelf. New clients are asked to fill out an intake sheet that requests some basic information about the client and his or her reason for seeking CST. Respondent uses the information on the intake sheet to speak with the client about his or her needs, and places it in a manila folder that he uses to take notes. The notes are on the manila folder itself, as opposed to paper contained in the folder. If additional space is needed for subsequent visits, he simply gets another manila folder and, hopefully, keeps the folders about a particular client together. Respondent admits he is not very organized, and maintaining his files is not his specialty. Most clients have three to six sessions with Respondent, so it is conceivable that for most clients, a single folder would be sufficient. After Respondent speaks with the client, the client lies down on a table during the therapy, fully clothed, facing up. Typically, Respondent is the only person in the room during CST sessions, and the sessions last approximately an hour and a half. He will assess a client by lifting each leg to compare length and will rotate the legs to assess range of motion through the hips. After assessing a client, Respondent goes through a series of gentle holds, generally using the same protocol each time, with some variation depending on the need of the client. He testified that he will tell clients what he is going to do and where he is going to place his hands, and advises clients that if at any time they feel uncomfortable with what he is doing or where he is placing his hands, the client should feel free to tell him. Respondent will review the notes he made from prior visits at the beginning of each session and will discuss any changes that have taken place since the last session. Many times, the notes that Respondent keeps will include sensitive personal information related by a client if that information may reveal a source of trauma. During the time period relevant to these proceedings, Respondent advertised his practice in an alternative medicine magazine called “Natural Awakenings.” M.M. is the managing editor of Natural Awakenings. As part of her job, she writes articles and conducts interviews of professionals who advertise in the magazine. M.M.’s supervisor, Janet Lindsay, assigned her the task of interviewing and writing an article about Respondent and his practice. M.M. was told that Respondent practiced CST. On May 1, 2017, M.M. emailed Respondent and told him that Natural Awakenings wanted to feature him in an article for the June issue, and sent him a series of questions to answer, along with her telephone number. Respondent did not immediately respond, so on May 8, 2017, M.M. emailed him again to make sure he received the first email. Respondent called M.M. the next day and suggested that M.M. come in and receive a CST treatment at no charge, so that she would have a better understanding of the modality when writing the article. M.M. accepted the offer and made an appointment to see Respondent on May 12, 2017. During this first session, M.M. interviewed Respondent for the article, filled out an intake sheet, and provided a medical history. Respondent asked her some questions, then directed her to remove her shoes and lie on the table, fully clothed. Respondent explained what he was doing and where he would place his hands as he performed the various holds. M.M.’s description of the first session is consistent with Respondent’s description of how he conducts all CST sessions. There is no allegation that any improper or unprofessional conduct took place at the May 12, 2017, session. At the end of the session, Respondent offered to continue providing free sessions to M.M. in exchange for M.M. writing additional articles for the magazine about his practice. M.M. agreed to the arrangement. She testified that these kinds of arrangements are not the norm, but that it was not the first time it had occurred. M.M. testified that she felt better after having the CST session, in that her chronic pain was better, her body less tense, and her breathing easier, especially when running. These benefits, however, were temporary. M.M. wrote an article about the first session, which she provided to Respondent for review and approval before it was published. Respondent appreciated the article, felt that it was well written, and benefited his practice. On May 18, 2017, M.M. provided the final copy of the article for publishing. There was no indication from the evidence presented that the parties’ interaction at the initial visit or the exchanges regarding the article in the week following the visit were anything but professional. M.M. saw Respondent for additional sessions on June 9, 2017; September 26, 2017; November 3, 2017; and November 30, 2017. M.M. did not find anything about these visits to be unprofessional or out of the ordinary, with the exception of the last visit on November 30, 2017. M.M. and Respondent’s accounts of the November 30, 2017, visit are not reconcilable. Respondent testified that the visit was much like previous visits, while M.M. contends the visit involved unwanted and inappropriate touching and inappropriate commentary about her body. Leading up to the final visit, M.M. testified that Respondent’s behavior seemed more familiar and personal than the behavior of a health care provider. She claimed that he started calling and emailing her late at night, and referred to her as his “muse.” She specifically indicated that one call came on a weekend, and she chose not to answer it because she was with her sister and did not want to interject work issues into her weekend. Phone records from the providers for both M.M. and Respondent’s phone numbers reveal only one call made from Respondent to M.M., and that call took place May 9, 2017, before her first appointment with him. The Department did not produce any of the emails M.M. claimed that Respondent made to her. Respondent produced most, but not all, of the emails between the two. He testified that he provided to the Department all of the emails he found at the time he responded to the complaint, and that any omissions were unintentional. It is noted that the subpoena issued to Respondent requests patient records, but does not request emails. The request for production issued by the Department to Respondent, which is on the docket for this case, does not specifically request emails, but instead requests documents to be used at hearing. None of the emails in evidence contain any improper statements. All of them involve either questions about Respondent’s practice, or review of the articles that M.M. wrote about his practice.2 2 During hearing, the Department showed Respondent a copy of an email he provided in response to the Department’s request for production. The email appears, from the portions read at hearing, to involve an article that Respondent wrote about his practice. The Department did not offer the email into evidence, but asked Respondent to read where the email apparently stated, “both of you are my angels.” Respondent responded by saying, “Yes, I said that, but I never called her an angel in any session. I was complimentary. Both Lindsay – or Janet Lindsay and Ms. M.M. were very helpful in my professional life, and I see nothing wrong with referring them to angels who are helping me in my profession. And if I said I never called anybody an angel, I couldn’t remember that email until you brought it up now.” Phone records between M.M. and Respondent do indicate that Respondent contacted M.M. either by email or by text, late on some evenings. However, up until March of 2018, well after the final appointment, these contacts were in response to emails sent by M.M. to Respondent. The telephone records reference emails sent by Respondent to M.M. on January 17 and 23, 2018, a few months after M.M.’s last visit. However, neither Respondent nor M.M. were asked about these emails by date, and the record contains no information regarding their contents. The weekend before the November 30, 2017, visit was Thanksgiving weekend, and M.M. and her husband had a lengthy car ride returning from Atlanta where they spent Thanksgiving. For whatever reason, M.M. had a panic attack during the car ride, and remained especially tense at her appointment with Respondent. She recalled that the discussion portion of the visit seemed shorter, and that Respondent used a pendulum to detect energy before commencing with the CST.3 He noticed that her chest area was more closed then usual and asked her if there was some reason why she had tightness there. M.M. testified that she explained to Respondent that she had always had body image issues, specifically with her chest. She stated that Respondent offered to address the tension with a modality called “cupping,” which would also make her breasts look “perkier.” Cupping is a modality that Respondent acknowledges using on occasion. He has cupping equipment that has a variety of cup sizes and is The Department also contends in its Proposed Recommended Order that “Grywinski has no explanation for why he did not provide the January 2018 emails.” However, the record does not reflect that the Department ever specifically asked Mr. Grywinski a question about those emails, either at hearing or in his deposition, so as to require an explanation about them. 3 The use of the pendulum is a technique that Respondent developed himself. It supposedly detects energy in the body, or an absence thereof, and he also used this technique in a prior session. made so that one can use one or two cups at a time, although he generally uses only one. The machine has tubing that attaches to both the machine and the cup(s), and the amount of pressure to create suction can be changed using a dial on the machine. M.M. testified that she was familiar with the concept of cupping, both from research she had performed for articles, and from the then-recent 2016 Olympics where there were stories about Michael Phelps using the technique. She agreed to the cupping, and she testified that Respondent directed her to completely disrobe. According to her testimony, Respondent remained in the room while she disrobed, and did not offer her a drape of any kind. There was no testimony about what Respondent was doing while M.M. disrobed: i.e., whether he turned his back, set up the equipment, or watched her. M.M. testified that she did as Respondent asked because she had seen a number of health care providers for a variety of reasons all of her life, and trusted them. M.M. stated that Respondent instructed her to lay face up on the table and rolled a cart with the cupping machine over to the table.4 According to her, Respondent explained that while “one breast was being suctioned, he was performing what he called lymphatic drainage on the other breast, which basically involved finger motions on my skin that were kind of applied in a – in a rhythmic upward motion with both hands. And the idea behind it was to stimulate blood flow and circulation in the lymph nodes of that region.” M.M. stated that after the cupping of the first breast was completed, Respondent moved the cup to the other breast and duplicated the process. He then explained that he would continue to perform lymphatic drainage on the remainder of her body, and began working his way down her body, performing the same circular motions, including her stomach, hips, and pelvis; down to her pubic area and groin, and eventually her genital area, 4 Respondent testified that there is not a rolling cart in the room, because the room is too small to accommodate one. According to him, the cupping machine sits on the table against the wall, but has lengthy tubing. which she testified could have been either accidental or purposeful contact. M.M. testified that he grazed her buttocks and called them “buns of steel,” as well as referring to himself as a “horny old man.” M.M. also testified that while performing the lymphatic drainage, he touched her genitals with his fingertips. Following the lymphatic drainage, Respondent told M.M. that the session was over, and she could dress. M.M. stated that he asked not to include the last portion of the visit in her article because he was afraid of losing his license. She redressed, with Respondent remaining in the room, and after doing so, they exchanged pleasantries and she left the office. Respondent emphatically denies M.M.’s allegations. He acknowledges that he performed cupping on M.M but denied that he performed it on her breasts. According to Respondent, he performed cupping on her abdomen to relieve constipation. His records for November 30 state in part, “sm + lg. intestines & ileocecal inflamed. – complained about constipation -- cup abdomen?” When M.M. was asked whether Respondent performed cupping of her abdomen for constipation, she could not remember if she mentioned constipation to Respondent, but it was possible, and did not remember if he cupped her abdomen. Respondent testified that he explained cupping to her and told her both about uses for cupping in China, which include cupping of the breast and of the face, but also explained it is used for different purposes in the United States. In his written response to the allegations that he provided to the Department during the investigation, he stated: Because of her interest in health, (she has her own health blog) and a possible future article, I demonstrated the cupping process for her and went into a lot of detail on how it worked and what it was used for in China and the protocols that cupping I had been trained in through Ace Cupping. With cupping, the therapist is able to bring new blood and enhance circulation and lymph flow and drainage in congested and tight muscles or area of the body. * * * I also shared that the Chinese used the machine to cup women’s breasts and they claimed that if a woman breast was cupped everyday for 30 days, it would enhance circulation and lymphatic drainage and that would bring about healthier breasts or uplift them. In no way was I suggesting that we cup her breasts and I did not do so. Respondent also indicated in the investigative response that M.M. seemed uncomfortable with the cupping procedure and that he cut it short. Although his response stated that she seemed uncomfortable with the cupping, it also stated that she did not state that she was uncomfortable with any procedure he employed throughout all of the craniosacral sessions, including the November 30 session. Respondent testified that he did not ask her to undress, but rather, asked her to raise her shirt to the bottom of her ribcage, and to lower her shorts to the top of her hips, so that only that strip of skin was exposed. He placed oil on her skin, used a cup approximately two inches in diameter, and moved the cup in the same direction as the digestive system in a circular motion. M.M., by contrast, testified that no oil was used. Respondent did not perform lymphatic drainage: while he is aware of the technique, he has not been trained in it. A review of his continuing education records do not reveal any classes in lymphatic drainage. Respondent further testified that only a small portion of skin was showing while he performed the cupping, and Respondent did not provide M.M. a drape (although it is unclear that one would be necessary), and did not leave the room while she readjusted her clothing once the procedure was finished. Respondent also denies that he asked M.M. not to include the final portion of the visit in her article because he was afraid he would lose his license. At the time of the visit, there was no article in process. M.M. had already produced two articles about Respondent’s practice, and although M.M. believed she wrote three, no third article was produced, and there are no emails or texts addressing a third article, like there were for the first and second ones M.M. wrote. M.M. claimed that the third article was supposed to be a question/answer column with Respondent and a local chiropractor, Eric Winder, who Respondent says he does not know. It does not appear from the investigative report that Eric Winder was interviewed, and he was not called as a witness at hearing. Respondent likewise denies telling M.M. that she has “buns of steel,” or referring to himself as a “horny old man.” There was no further contact between M.M. and Respondent for several months. The phone logs for AT&T indicate that there were three emails sent by Respondent to M.M. in January, but as noted previously, those emails are not in evidence. On March 11, 2018, Respondent reached out to M.M. by email, asking for permission to use an edited version of one of her articles in some advertising for his practice. M.M. responded by saying, “[y]es that’s fine. Feel free to use the edited version.” On April 14, 2018, Respondent emailed M.M. again, and stated, Dear [M.M.] Hope all is well with you. I want to thank you for allowing me to use your articles in my ads. Very effective and have brought me a number of new clients. I would like to send you a check for $200, a $100 each for the 2 articles in appreciation. Could you send me your address so I can send you the check. As my practice slows down for the summer, I should be able to get you back in for more sessions. With great appreciation, Terry To which M.M. replied, That’s kind of you to offer, but not necessary but appreciated. If you feel compelled to send a check (again, not necessary), you can mail it to [M.M.’s home address]. However, I will tell you that I’m unable to come in for sessions, as I recently moved to the other side of town, and the drive is no longer conducive with my weekly schedule. But you are free to continue to use the articles I’ve written about your practice in any capacity you choose. M.M. testified that she told a friend about the November 30 session about a week after it happened, and it was her friend’s reaction that alerted her that what happened was not appropriate. Notes from her therapist indicate that she stated that she did not tell anyone for several months.5 She did not tell her husband for approximately four months after the incident. Neither her husband nor the friend that M.M. stated she told about the incident testified at hearing. There are other date discrepancies in the therapist’s notes as compared to other events in this case. For example, the September 5, 2019, entry refers to hearing from the Sarasota Police Department regarding the incident, which is, as found below, prior to the time she even reported the incident to the Department of Health, who in turn contacted law enforcement. It may be that even if the dates for the sessions in the notes are incorrect, the inconsistencies are enough to raise concerns. This is especially so given that the subpoena sent to the therapist requests ALL patient records, and the ones provided only covered the time period from August 8, 5 M.M.’s therapist’s records were subpoenaed by the Department. Statements made for the purpose of diagnosis and treatment by a person seeking the diagnosis or treatment which describe medical history, past or present symptoms, pains, sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment, are an exception to the hearsay rule. § 90.803(4), Fla. Stat. While the statements attributed to M.M. in her therapists’ notes may not be hearsay, they are not considered in this case for the truth of the matter asserted, but simply to show that there are differing statements regarding when M.M. shared her story with others. 2019, through September 10, 2019, a period of time that is much shorter than M.M. testified that she saw her therapist.6 In April 2018, M.M. emailed her employer and told her about the incident. In the emails, she states in part that he “ended our session by asking me to omit this portion of the treatment from my article, as he could lose his license. I did not report the incident, and I wrote the article as he requested, highlighting the benefits of his practice.” As noted above, there was no article after the November 30 session. She also wrote in a follow-up email that “Over the next couple of months, he tried calling/texting me in a friendly way that suggested he viewed us as more than professional acquaintances.” The telephone records do not support M.M.’s statement. M.M.’s employer responded by terminating M.M.’s advertising with Natural Awakenings and providing M.M. with the contact information for an attorney. M.M. filed her complaint with the Department on September 11, 2019, nearly two years after the incident. She did not file a complaint with law enforcement, but upon receiving her complaint, the Department investigator notified the Sarasota Police Department on September 26, 2019. Ultimately, no criminal charges were filed, but the decision of the State Attorney’s Office has no bearing on whether or not there is a basis for discipline in this case. Both M.M. and Respondent had some inconsistencies in their stories. Respondent’s, in large part, appear to be based on the fact that his records for the sessions he had with M.M. were not together, and he did not find the records for the earlier session (i.e., his first manila folder) until after his deposition. As noted previously, clients typically have three to six sessions, so it was not unreasonable for Respondent to assume that he only had one folder for M.M., especially given that the records were requested two years after his 6 It may be that notes related to couple’s counseling were not provided because those notes were not just about M.M. but M.M. and her husband. That does not, however, address the inconsistencies in the timeframes reflected in the notes. last session with M.M. His counsel turned those records over to the Department, but not when requested in discovery, and some of those records were not admitted as a result.7 The Department takes issue with a statement Respondent made about M.M. telling him that she was sexually assaulted in college, stating that there is “no mention of sexual assault, or assault of any kind, in either set of Patient M.M.’s treatment notes.” (Petitioner’s Proposed Recommended Order at 15, ¶ 111). However, given that Petitioner successfully objected to some of Respondent’s records regarding M.M. being admitted into evidence, what is in evidence does not reflect all of the records regarding M.M.’s sessions with Respondent. There can be no finding that the records contain no mention of sexual assault when, as the result of Petitioner’s objections, not all of Respondent’s records are in evidence. The Department also finds Respondent’s records to be untrustworthy because their physical appearance is somewhat different. As noted previously, Respondent writes his notes on manila folders and writes from edge to edge. He testified that when he tried to copy the manila folders for the Department, some of the notes were cut off, so he rewrote what was on the notes and provided them to the Department. There are some minor differences in the notes and in a few places, he wrote the dates as 2019 as opposed to 2017. Given that the records were requested in 2019, such an error is not significant. While the copies of the records are not exact, the differences are extremely minor. Furthermore, the Department points to no statute or rule that requires a massage therapist to have patient records at all, much less one that dictates a format to which they must conform. Most importantly, the Department does not point to any discrepancy that 7 The Department also appears to question Respondent’s and Respondent’s counsel’s good faith regarding these records, stating that Respondent testified that he found the records two to three weeks before the hearing, and yet counsel for Respondent was able to use these records in questioning M.M. in her deposition June 22, 2021. A specific date for when Respondent gave the records to his attorney is not in the record. materially affects Respondent’s account of what happened on November 30, 2017. There are other concerns with M.M.’s account of the incident in addition to those issues listed with respect to the telephone records, discrepancies in dates, and references to an article that was not written. For example, M.M. testified that she has had a great deal of medical procedures performed on her, and she is accustomed to doing what medical professionals ask of her. Kacee Homer and Lisa Caller are character witnesses who testified on behalf of Respondent. Both are healthcare professionals who testified that when a patient is asked to disrobe, they generally do. Ms. Homer, a nurse, said that generally when a patient is asked to disrobe, she leaves the room while the patient is undressing, and if possible, the patient is draped. Here, M.M. testified that Respondent asked her to disrobe, and stood there while she did so. It seems odd that M.M., who writes articles about healthcare, and by her own admission has had several medical procedures in her life and is fairly knowledgeable regarding the medical field, would not at least ask for a drape, or wait for Respondent to leave the room before undressing. M.M.’s description of the cupping and lymphatic drainage also raises more questions than it answers. She testified that while the cup was placed on one breast, Respondent massaged the other with both hands. That means the cup had to remain in place based solely on the suction or pressure provided by the cupping machine. It seems that it would be difficult for the cupping machine to provide enough suction for the cup to remain in place on her breast without causing discomfort or pain, and possibly bruising, but there was no testimony that she found the experience physically painful or it left any discernible marks. Finally, the undersigned is troubled that M.M. would willingly give her home address to a man that she claimed sexually assaulted her. It does not seem plausible that she would so easily provide this type of information to Respondent when it could enable him to make further contact with her. After careful consideration of all of the evidence presented, the undersigned finds that there is not clear and convincing evidence to support a finding that Respondent asked M.M. to disrobe in front of him without providing a drape. There is not clear and convincing evidence that Respondent massaged M.M.’s breasts, buttocks, and groin area, and touched her vagina with his fingertips, all without a valid medical reason. Likewise, there is not clear and convincing evidence that Respondent told M.M. that she had “buns of steel” or that he was a “horny old man.” The evidence failed to establish that Respondent’s conduct toward M.M. constituted sexual activity outside the scope of practice, or an attempt to engage or induce M.M. to engage in such activity.
Conclusions For Petitioner: Dannie L. Hart, Esquire Andrew James Pietrylo, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 For Respondent: Lance O. Leider, Esquire Amanda I. Forbes, Esquire The Health Law Firm Suite 1000 1101 Douglas Avenue Altamonte Springs, Florida 32714
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaints against Terrence Grywinksi, L.M.T., and Terrence Grywinski Massage, be dismissed. DONE AND ENTERED this 5th day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LISA SHEARER NELSON 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 5th day of November, 2021. Dannie L. Hart, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Amanda I. Forbes, Esquire The Health Law Firm Suite 1000 1101 Douglas Avenue Altamonte Springs, Florida 32714 Kama Monroe, JD, Executive Director Board of Massage Therapy Department of Health Bin C-06 4052 Bald Cypress Way Tallahassee, Florida 32399-3257 Lance O. Leider, Esquire The Health Law Firm Suite 1000 1101 Douglas Avenue Altamonte Springs, Florida 32714 Andrew James Pietrylo, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Louise St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399
The Issue Did Respondent, Jianping Liu, L.M.T. (Ms. Liu), induce patients N.D. and J.H. to engage in sexual activity or engage in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment? Did Ms. Liu massage patient N.D. at a location not licensed as a massage establishment and without exemption? Did sexual misconduct occur in Respondent, Queen Spa, Inc.’s (Queen Spa), massage establishment? Did Queen Spa’s backpage.com and anyitem.org advertisements induce or attempt to induce, or engage or attempt to engage, clients in unlawful sexual misconduct? Did Queen Spa fail to include its license number in its backpage.com and anyitem.com advertisements?
Findings Of Fact Section 20.43 and chapters 456 and 464, Florida Statutes, charge the Department with licensing and regulation of massage therapy. At all times material to the allegations in the Administrative Complaint, Ms. Liu was a licensed massage therapist in the State of Florida. She holds license MA 68834. At all times material to the allegations in the Administrative Complaint, Queen Spa was a licensed massage therapy establishment in the State of Florida. It holds license MM 32567 registered at 10915 Bonita Beach Road, Unit 1121, Bonita Springs, Florida 34135, and license MM 32546 registered at 51 9th Street South, Naples, Florida 34102. Patient N.D. was a criminal investigation detective for the narcotics and vice division of Lee County Sheriff’s Office. On March 27, 2014, N.D., as part of an undercover investigation, scheduled an appointment for a massage at Ms. Liu’s home, 9951 Utah Street, Bonita Springs, Florida 34135. During the massage, Ms. Liu touched N.D.’s penis and asked if he wanted it massaged. N.D. offered an additional $50.00 tip and Ms. Liu began masturbating his penis. Ms. Liu was charged with prostitution. On April 30, 2014, Ms. Liu entered into a deferred prosecution agreement with the Lee County State Attorney’s Office. Ms. Liu’s home on Utah Street has a home occupational license issued by the city for a massage therapy administration office. It is not a licensed massage establishment. J.H. is a police officer in the crime suppression unit for the City of Naples, Florida. On May 9, 2014, the Naples Police Department began investigating Ms. Liu’s massage parlor. On July 24, 2014, J.H., as part of an undercover investigation, scheduled a massage appointment with Ms. Liu at the Queen Spa in Naples. After the massage, J.H. gave Ms. Liu a $20.00 tip and she gave him a separate business card. She explained this card was for “special customers” and had a different phone number than her regular card. J.H. scheduled a second massage for July 29, 2014. At some point near the end of that massage, J.H. asked if Ms. Liu offered special or extra services. Ms. Liu replied by asking if he was trouble or a cop. J.H. asked how much it would cost, but Ms. Liu did not take additional payment. Ms. Liu then began masturbating J.H.’s penis until he ejaculated. Ms. Liu contends that penis manipulation is part of a “full body” massage. But she testified during the hearing that this was an additional service to the full body massage. Further, she testified that she only conducted each “extra service,” because J.H. and N.D. requested it. This establishes that masturbation was not part of the massage. It was a sexual service. Testimony of the expert witness Jennifer Mason also proves this fact. Backpage.com is a classified advertising website that contains listings explicitly for prostitution. The adult entertainment section of backpage.com is linked to the majority of the Naples police investigations into prostitution. Ms. Liu posted ads for Queen Spa on backpage.com and anyitem.org. The backpage.com ad titled “erotic pleasure” was listed in the adult services section. The anyitem.org ad titled “erotic pleasure” was listed in the escort section. Ms. Liu contends the postings did not advertise sexual services and that the application on her phone mistranslated the word erotic from Mandarin to English. However, the character of backpage.com and posting the advertisements as adult services, rather than as massage services, supports the conclusion the postings advertised sexual activities. The backpage.com and anyitem.com advertisements did not include the license number of Queen Spa. Touching of the genitalia is not within the scope of a full body massage. Stimulation of the genital area is considered sexual misconduct. It is not part of an ethical massage. There is no therapeutic value to massaging a client’s penis. Sexual innuendo or stimulation is a problem in massage therapy. The industry has worked to remove it from the practice to create a safe and therapeutic environment. Training of massage therapists requires them to “decline, leave the room, terminate the massage” when sexual stimulation is requested by a patient. When discussing “extra services,” Ms. Liu told J.H. about her friend who got into trouble after performing certain acts and that the friend had lost her license; “no license, no job”. Ms. Liu engaged in sexual misconduct with J.H. just three months after she signed a deferred prosecution agreement disposing of the Lee County charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Health, Board of Massage Therapy, enter a final order: finding that Respondent, Jianping Liu, L.M.T., violated sections 480.0485 and 480.046(1)(o), Florida Statutes; revoking her license; requiring the payment of an administrative fines in the amount of $2,750.00; and awarding costs for the investigation and prosecution of this case to the Department. Based on the foregoing Findings of Fact and Conclusions of Law, it is also RECOMMENDED that Petitioner, Department of Health, Board of Massage Therapy, enter a final order: finding that Respondent, Queen Spa, Inc., violated sections 480.046(1)(e) and 480.0465, Florida Statutes, and Florida Administrative Code Rule 64B7-26.010; revoking its license; requiring the payment of an administrative fine in the amount of $4,000.00; and awarding costs for the investigation and prosecution of this case to the Department. DONE AND ENTERED this 2nd day of October, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2015.
The Issue Whether Respondent violated provisions of chapter 480, Florida Statutes, as alleged in the Administrative Complaint, and; if so, what penalty should be imposed?
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following factual findings are made: The Department is the state agency charged with the licensing and regulation of massage therapists pursuant to section 20.42 and chapters 456 and 480, Florida Statutes. At all times material to the allegations in this proceeding, Respondent was a licensed massage therapist in the State of Florida, having been issued license number MA 80938. During May 2016 Respondent worked at Massage Envy (“M.E.”) as a massage therapist. M.E. is a spa facility offering massage services. D.W. is a 46-year-old female with significant back issues. D.W. was in a boating accident as a child, and has had at least eight back surgeries in attempts to alleviate her back pain. Since 2012, D.W. has had numerous massages to help ease her back pain. She initially received massages through her chiropractor’s massage therapist. The chiropractor’s massage therapist was unable to continue, and D.W. started obtaining massages at M.E. D.W. obtained free massages from M.E. when she participated as a “mystery shopper”4/ for M.E. Following that experience, D.W. became a client of M.E. D.W. usually received full-body massages on a monthly basis,5/ except when she had the back surgeries. On May 27, 2016, D.W. contacted M.E. requesting a massage appointment. She was assigned Respondent as her regular masseuse was unavailable. D.W. arrived for the massage and met Respondent. The massage was scheduled for two hours. D.W. and Respondent discussed D.W.’s back pain. Respondent left the treatment room to allow D.W. time to completely disrobe and cover herself with the drape cloth or sheet. During the first half of the massage, D.W. was face down while Respondent stretched her out. She was comfortable with this part of the massage as she remained fully covered by the sheet. Approximately half way through the massage, Respondent briefly left the room, and D.W. turned over to be face up for the remainder of the massage. In the face-up position, Respondent began the next phase of the massage. While he was working on D.W.’s left leg, Respondent bumped her vagina. D.W. initially thought the touching was an accident; however, Respondent kept touching her clitoris. Respondent then put two to three fingers inside D.W.’s vagina. D.W. was “very scared,” and initially felt frozen in fear. After a few minutes Respondent asked if he needed to stop the massage. After a few seconds, D.W. was able to say, “It’s making me feel like I have to pee, please stop.” Respondent stopped. Respondent then asked if D.W. wanted to have her hands or feet massaged as there were a couple of minutes remaining in her appointment. D.W. did not want Respondent’s hands touching her hands; she indicated he could message her feet. Respondent finished the massage by working on D.W.’s feet. After the massage ended, D.W. dressed. D.W. went to the restroom, received a cup of water from Respondent and checked out at M.E.’s front desk. D.W. went to the parking lot, called the M.E. manager, and told the manager what happened. D.W. then went home. D.W. told her husband what had happened and the two of them returned to M.E. The Largo Police Department was called and a report was filed. While testifying about this very intimate type of contact, D.W.’s demeanor was distressed. She cried as if it were painful to recount. D.W. now is unable to use massage therapy to treat her back pain. Additionally, D.W. has trouble sleeping, and is unable to have sex because she considers what Respondent did to her was “foreplay.” Respondent denied that he engaged in any form of sexual activity with D.W. Respondent attempted to blame D.W.’s allegation as either a “counter-transference” or “transference” event. Respondent postulated that the counter-transference or transference is “where the client imposes a negative feeling or a negative association upon their therapist after something is awoken during massage.” Respondent agreed that D.W. had been getting massages for years, and that she would be accustomed to the massage experience. Respondent also agreed that there was nothing special about the massage he gave to D.W. Respondent’s testimony is not credited. Massage therapy training teaches that massage in the vicinity of the genital area is to be conducted very carefully. If a massage therapist properly draped a patient consistent with the requirements of rule 64B7-30.001, it would not be possible to inadvertently touch a client's genital area. The placement of a massage therapist's finger (or fingers) into the vagina of a massage client is outside the scope of the professional practice of massage therapy and is below the standard of care. There is no therapeutic value to massaging or penetrating the vagina, and there is no circumstance by which a massage therapist should touch a client’s vagina.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding Respondent guilty of violating section 480.0485 and rule 64B7-26.010; and imposing a fine of $2,500 and revoking his license to practice massage therapy. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2017.
