The Issue The issues presented in this case are whether Respondent has violated the provisions of chapters 456 and 480, Florida Statutes, as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The following findings of fact are based on the testimony, evidence admitted at the formal hearing, and the agreed facts in the pre-hearing stipulation. The Department is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43, Florida Statutes, and chapters 456 and 480. At all times material to the allegations in this case, Respondent was licensed to practice as a massage therapist in the State of Florida, having been issued license number MA 79509. At all times material to the allegations in this matter, Respondent was employed as a massage therapist at Daytona College, in Daytona Beach, Florida. Respondent’s address of record is 10 Spanish Pine Way, Ormond Beach, Florida 32174. S.W. is a licensed mental health counselor who has been licensed for approximately 22 years. She resides in Clermont, Florida, which is where she lived at the time of the massage. In July 2017, S.W. and C.W., her 23-year-old daughter, traveled to the Daytona Beach area to visit S.W.’s elderly mother. On July 19, 2017, S.W. and C.W. went to Daytona College, for the first time, for a massage. Upon arriving at the school, they were greeted by the receptionist. S.W. and C.W. were scheduled for 80-minute massages to take place at 3:30 p.m. However, the ladies arrived ten minutes late, so the massages began late. Upon arrival, the ladies were asked whether they needed to use the restroom, which they did. After using the restroom, the ladies were taken to the massage area for their services. S.W. selected the male massage therapist based on her past positive experiences with male therapists. S.W. had received a number of massages in the past, including massages by men. She allowed her daughter to be scheduled with the female massage therapist because she believed her daughter preferred a woman. S.W. was scheduled for a massage with Respondent, and C.W. was scheduled with Elizabeth Branson. Respondent escorted S.W. to the massage room first. Ms. Branson escorted C.W. to the room a few minutes later. As Respondent escorted S.W. to the massage room, S.W. described the areas in which she wanted special attention, including her neck, shoulders, scalp, and feet. Respondent asked S.W. whether she needed massage in the sciatic area. S.W. had problems in the sciatic area, so she consented to have the area massaged. The common room where massages occurred at Daytona College contained eight massage tables separated by curtains. Respondent took S.W. into the massage room and instructed her to undress to her comfort level. Respondent left the room while S.W. undressed down to her underwear. When Respondent reentered the room, S.W. was draped with a sheet. Respondent tucked the drape into S.W.’s underwear and lowered it onto her buttocks. A short time later, S.W. could hear her daughter in the area near her, but she could not see her. C.W. whispered to S.W. to let her know she was in the room. At some point, S.W. heard her daughter exit the room. C.W. finished her massage before S.W., even though S.W.’s service began before C.W.’s. C.W. recalled that her mother was unusually quiet during the massage instead of being “chatty,” as she normally would be. C.W. waited in the hallway outside the massage room for four or five minutes for S.W.’s massage to finish. After S.W. came out of the massage room, C.W. immediately noticed that something was wrong. When S.W. exited the room, she was “wired” and not relaxed, as she would normally appear after a massage. C.W. described her as appearing nervous and agitated. C.W. could tell that something was wrong, but S.W. did not say anything at that time. The two ladies walked to the front desk. As was her routine, S.W. paid for both massages and left a $10 tip. She did not make a complaint regarding the massage with the receptionist before leaving the school. Concerned regarding her mother’s behavior, C.W. asked S.W. what happened. S.W. stated that something weird happened. The ladies left the school and began driving to their destination. S.W. continued to be upset and ultimately, began crying. She was so upset that initially, she could not articulate what occurred. S.W. ultimately told C.W. that Respondent had placed his hand under her underwear and touched her clitoris. S.W. contacted her friend Mike, a law enforcement officer. S.W. explained to Mike what happened, and he suggested that she contact the police to report what happened to her. S.W. and C.W. called the police and requested that an officer meet the ladies at Daytona College. They also contacted the school and advised them that S.W. had been inappropriately touched during her massage. They arrived back at the school approximately 20 minutes later. The officer arrived shortly after S.W. and C.W. The officer interviewed S.W. and she reported to him that while massaging her thighs, Respondent “grazed” her vaginal area with his finger. S.W. also reported that Respondent touched her clitoris with his finger. S.W. declined to pursue criminal charges and stated she would file a complaint with the Department. However, she expressed that she wanted to ensure there was a record of the incident so another woman would not have the same experience. On or about July 26, 2017, one week later, S.W. filed a complaint with the Department of Health. S.W. submitted a typewritten statement regarding the events involving Respondent. S.W. related that at the beginning of the massage, she gave Respondent permission to pull down her underwear and tuck in the drape. She stated that toward the end of the massage, Respondent “grazed” her vagina outside her underwear. He then placed his finger under her underwear and began massaging her clitoris for a couple of seconds. She stated that she grabbed Respondent’s hand and pushed it away. In response, Respondent abruptly told S.W. that the massage was done. In addition to the report to the police and the Department, S.W. also reported the incident to the school administrators, Dr. Ali and Mr. Brooks. Dr. Ali met with S.W. and C.W. when they returned to the school. Dr. Ali described S.W. as appearing embarrassed, subdued, and uncomfortable. Mr. Brooks was also present during the meeting. He was called to campus after he received a report that something inappropriate happened. He observed that S.W. appeared upset. Although there was no expert offered to testify in this matter, Chris Brooks, LMT, provided insight regarding the type of massage provided to S.W. He explained the difference between sensualized touch and sexualized touch. A sensualized touch is not uncommon in massage. On the other hand, sexualized touch is used to evoke sexual pleasure. At hearing, S.W. was clear and unwavering in her recollection of the events involving Respondent touching her vaginal area. S.W. appeared anxious, uncomfortable, and her voice cracked when she testified that Respondent moved her underwear and touched her vaginal area. Specifically, she testified that Respondent grazed her vagina on top of the front of her underwear. She was in such shock that it happened she could not say anything. Respondent then put a bare finger underneath her underwear and began massaging her clitoris. She still could not speak, so she quickly grabbed his hand and pushed it away. Consistent with her statement to the police officer and her written statement, she credibly testified that Respondent touched her vaginal area with his finger. At hearing, Respondent denied touching S.W.’s vagina during the massage. He also denied rubbing her clitoris. Mr. Brooks, who is personally and professionally acquainted with Respondent, testified that Respondent seemed shocked to learn of S.W.’s complaint. Respondent testified that he draped S.W.’s legs in such a way that it caused the draping to “bunch” between the area massaged and the genitalia. Respondent argues that S.W. could not determine whether the draping touched her genitals when Respondent massaged her legs. However, when pressed on this point, S.W. unequivocally testified that she was certain it was Respondent’s finger that touched her clitoris. Respondent had no prior complaints of inappropriate touching before S.W.’s complaint. Although Mr. Brooks asked him about the complaint on the date of the incident, there was no evidence offered at hearing that Respondent was formally interviewed by the school administration. However, Respondent was terminated from his job at Daytona College based on S.W.’s complaint. Respondent was also not interviewed by the police officer investigating the complaint. Respondent was not charged with a crime. Respondent has no prior disciplinary action involving his license to practice massage therapy. The evidence demonstrates that Respondent crossed the boundaries of appropriate massage into sexual misconduct when he massaged S.W.’s clitoris with his finger. While Respondent’s testimony seemed sincere, S.W. was more persuasive. Based on the totality of the evidence presented at hearing, there is clear and convincing evidence that Respondent touched S.W.’s vaginal area or clitoris with his finger. The placement of a massage therapist’s finger on the vaginal area or clitoris of a patient is outside the scope of the professional practice of massage therapy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding: Respondent guilty of violating sections 480.046(1)(p) and 480.0485 as further defined in rule 64B7-26.010; Imposing a fine of $2,500; and Revoking Respondent’s license to practice massage therapy. DONE AND ENTERED this 5th day of April, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2019.
The Issue Whether Respondent engaged in sexual misconduct in the practice of massage therapy, and, if so, what is the appropriate sanction.
Findings Of Fact Respondent Kurt Ehlers, L.M.T. is licensed to practice massage therapy in the state of Florida, holding license number MA 67359. Respondent was licensed to practice massage therapy in the state of Florida at all times relevant to the Administrative Complaint underlying this case. Respondent’s address of record on or during May 2017 was 13315 Secret Lane, Hudson, Florida 34667. Respondent performed massage therapy on Patient A.H. on May 18, 2017. Placing hands under the draping on a female patient’s breasts during a massage constitutes sexual misconduct. Massaging, grabbing and/or squeezing a female patient’s breasts during a massage constitutes sexual misconduct. Touching and/or rolling a patient’s nipples during a massage constitutes sexual misconduct. Placing hands under the draping on a female patient’s breasts during a massage, massaging, grabbing and/or squeezing a female patient’s breasts, and/or touching and/or rolling a patient’s nipples is outside the scope of practice and/or generally accepted examination or treatment of a patient. Factual Findings from Evidence Presented at Final Hearing 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. On or about April 18, 2018, Petitioner filed an Administrative Complaint against Respondent. The material allegations against Respondent are as follows: On or about May 18, 2017, Respondent provided massage therapy to Patient A.H. at ME Clermont, LLC (“Massage Envy”), located at 1500 Oakley Seaver Drive, Clermont, Florida 34711. During the above-reference massage, Respondent positioned his hands inside the sheets covering A.H.’s breasts and massaged, grabbed, and/or squeezed A.H.’s breasts without A.H.’s consent. Also, during the massage, Respondent touched A.H.’s nipples and/or rolled them between his fingers without A.H.’s consent. Respondent admits that he provided massage therapy to A.H. on or about May 18, 2017. Respondent, however, vehemently denies that he touched A.H.’s breasts at any time during the massage session at issue. Respondent has no prior history of complaints lodged against him by the Department. In May 2017, the Massage Envy location where Respondent worked recorded clients and workers while in public areas of the building. There is no evidence, however, that recording devices were located in the rooms where individuals received massage therapy. So, with respect to the instant dispute, A.H. and Respondent are the only witnesses to what actually transpired during the massage in question. Recordings from Public Areas Joint Exhibits 2.a., 2.b., and 2.c. are recordings of the Massage Envy reception area and the hallway that workers and clients use to access individual massage rooms. The video portion of each recording is of exceptional quality, whereas the audio portion is spotty, at best. Joint Exhibits 2.a. and 2.b. are from the camera in the reception area, and each recording contains both audio and video. Joint Exhibit 2.c. is video of the hallway leading to the massage rooms, and this exhibit does not contain audio. According to Joint Exhibit 2.a., A.H., on May 18, 2017, checked in with the Massage Envy receptionist at approximately 8:20 p.m. As part of the check-in process, the following exchange occurred between A.H. and the receptionist: Receptionist: Do you want to check out now or [inaudible] A.H.: Yeah. [Inaudible exchange] A.H.: Can I get the foot scrub? Receptionist: Okay, it comes to 30 total for the half-hour and the foot scrub. Do you want to put a tip on there? A.H.: Please. Receptionist: And how much do you want to leave? A.H.: $15.00. Receptionist: Do you want to set up your next appointment? A.H.: I’ll call. At approximately 8:23 p.m., the receptionist opened for A.H. the door leading to the hallway. A.H. walked through the door and entered the hallway that leads to the massage rooms. Joint Exhibit 2.c. does not contain images of A.H. and Respondent walking down the hallway to the room where A.H. received her massage from Respondent. At approximately 8:26 p.m., Respondent entered the reception area and mentioned to the receptionist something pertaining to “a scrub.” It is reasonable to infer from the circumstances that Respondent’s statement is related to A.H.’s request for a foot scrub. Beyond the word “scrub,” the undersigned is unable to decipher, or otherwise discern, the exact words stated due to the poor quality of the audio. Nevertheless, according to the video, Respondent, less than a minute later, retrieved exfoliating scrub and cream from a file cabinet in the reception area so that he could scrub A.H.’s feet. After retrieving the cream and exfoliate, Respondent immediately left the reception area and then apparently returned to continue A.H.’s massage. Approximately two hours after A.H. left the reception area to commence her massage session, Respondent, at approximately 10:38 p.m., re- entered the reception area. The video shows that Respondent had an electronic tablet, and appeared to input information before handing the tablet to the receptionist. Respondent and the receptionist had a brief conversation; however, the particulars of the same are not discernable due to the poor quality of the audio. At approximately 10:39 p.m., Respondent left the reception area, and entered the hallway leading to the massage rooms. According to Joint Exhibit 2.c., Respondent, at 10:38 p.m., is shown walking away from the camera towards the door leading to the reception area. Respondent entered the reception area where he stayed for approximately one minute. At approximately 10:39 p.m., Joint Exhibit 2.c. shows Respondent re-entering the hallway where he stopped at what is likely a water cooler, and filled a cup with water. After a brief pause, the video shows Respondent walking down the hallway towards the massage room. The video shows Respondent giving the cup of water to A.H. while they were both standing in the hallway. A.H. accepted the cup of water from Respondent, and they walked side-by-side, at a casual pace, away from the camera towards the door leading to the reception area. As they walked towards the door, both A.H. and Respondent are seen making, what appears to be, casual, conversational type gestures with their hands. A.H. does not appear to make eye contact with Respondent while walking down the hallway. Finally, the video shows that A.H. paused briefly to allow Respondent to open the door so that she could enter the reception area in order to exit the building. Joint Exhibit 2.b. reflects that at approximately 10:40 p.m., Respondent pushed open for A.H. the door separating the hallway from the reception area. As Respondent opened the door, A.H. is heard saying “thank you,” to which Respondent replied, “you’re welcome.” A.H. then walked directly to the main door and exited the building. Before A.H. exited the building, the receptionist told A.H. “have a good night,” to which A.H. replied, “you too.” A.H. did not make eye contact with the receptionist while transitioning through the lobby to the door to exit the building. While walking through the lobby, A.H. does not appear on the video to walk at a pace appreciably different from when she arrived for her massage. Feeling Uncomfortable A.H. had received several (at least six or seven according to Respondent) massages from Respondent prior to her session with him on May 18, 2017. A.H. testified that her child was born in August of 2016, and the massage on May 18, 2017, was her first with Respondent since the birth of her child. A.H. testified that on May 18, 2017, she made an appointment for that evening to receive a massage from Respondent, and that her appointment was for the last slot available for that date. On direct examination, the following testimony was offered: Ms. Hart: When you made your appointment, do you remember how long you made it for? A.H.: No, ma’am, I do not. Ms. Hart: Was it for more than half an hour? A.H.: Yes. It would have been anywhere from an hour to an hour and a half. I just don’t remember the time frame. Respondent testified that his massage sessions with A.H. usually lasted 60 minutes, but the session on May 18, 2017, was scheduled for 90 minutes. While A.H. and Respondent both testified that the massage session was scheduled for 90 minutes, the receptionist, as captured on Joint Exhibit 2.a., is clearly heard saying “Okay, it comes to 30 total for the half- hour and the foot scrub.” A.H. testified that Respondent escorted her from the front desk area to the massage room. As previously noted, Joint Exhibit 2.c. does not capture the period when A.H. left the reception area and went to the massage room. Nevertheless, A.H. testified that before the massage session started, Respondent made her feel uncomfortable when he complimented her on the apparent fitness level of her post-pregnancy body. A.H. offered the following testimony in regards to this issue: Ms. Hart: In your complaint you stated that Mr. Ehlers said several things to you that made you feel uncomfortable. Can you remember any of the things that he said? A.H.: I just remember him stating that I looked really good, and that I reminded him of this lady on this home improvement show … . And I thought it was odd because he’s never talked or complimented me like that. And the way he was complimenting, it was kind of flirtatious. It just made me uncomfortable because our normal talk is how are you doing, do you have any issues that I need to know about before the massage. It’s usually very professional, and this was different. It made me uncomfortable. Respondent denies that he made comments to A.H. about her body or appearance. According to Respondent, prior to the massage he went over his standard questions with A.H., which included the fact that she had given birth, and then excused himself from the room so that A.H. could disrobe. According to A.H., once she disrobed, the following sequence of events happened: A.H.: He left the room so I could disrobe to get on the table underneath the covers like you normally do in massage. Ms. Hart: Okay. And what happened after that? A.H.: Then he knocked on the door, obviously, making sure that I was under the covers. I advised him he could come in. He came in and the massage started. Ms. Hart: Were you face up or face down when the massage started? A.H.: I was face down. The Court: Did you say down or up? A.H.: Face down, face down. I was lying on my stomach. Respondent testified that “[t]his was [A.H.’s] first postnatal [massage], so she was going to be lying face down,” so he “opened up with [a] massage on [her] back.” A.H. testified that the following happened once Respondent started to massage her body: Ms. Hart: What was the first disconcerting thing to happen during the massage? A.H.: I remember he - - it started out normal. I was still lying on my back. And he was just breathing really heavy. Like, I don’t really know how to describe it other than in a sexual manner. It was weird. And I thought this was - - it caught me off guard because I’ve gone to him before. I’ve never felt uncomfortable. He’s never made me feel uncomfortable. And then as I was lying on my back, my palm is - - like, my hands are down and my palm is up, facing up on the table. And I kept feeling this, like, soft, like, fleshy feeling on my hand, brush up against my hand. And I was - - I was very uncomfortable. Ms. Hart: Did you look to see what was brushing up against your hand? A.H.: No, ma’am. I froze. Ms. Hart: Did you - - based on your experience as an adult woman with children, did it remind you of anything when you felt it? A.H.: It reminded me of like the head of a penis, to be honest. Ms. Hart: Okay. Did you take any action with regard to your uncomfortable feelings at this point? A.H.: No. The Administrative Complaint does not charge Respondent with any violations related to A.H.’s suggestion that Respondent caused the head of his penis to touch her hand. This portion of A.H.’s testimony is included herein for the limited purpose of providing context for A.H.’s testimony, as discussed below, that after the massage she dressed herself much faster than usual so that she could expeditiously leave the building. Respondent testified that during the massage, A.H.’s hands were under a sheet and blanket that he used to cover A.H. during her massage. As for his breathing, Respondent admits that he was breathing heavily because he had just completed four consecutive deep tissue massages, which are “a little more strenuous,” and he was suffering from “a slight head cold.” Respondent denies that he removed his penis from his pants and pressed it against A.H.’s hand during the massage. Respondent explained that while performing the massage on A.H., he had holstered on his hip a smooth- surfaced plastic bottle which contained lotion, and it is possible that the plastic bottle brushed against A.H.’s hand. The Breasts A.H. offered the following testimony with respect to her allegations that Respondent fondled her breasts: A.H.: I remember the next thing that made me uncomfortable is when I had to turn over. They typically pull up the sheets. It’s angled upward, but kind of low so that you can turn because you still have your privacy, because a lot of females are topless. So I just remember this time he had it exceptionally high to where you - - I wasn’t really that covered. And I turned around as quickly as I could, and I grabbed the covers to kind of put them back on me because it - - it was weird. He’s usually kept them really low on an angle so that you can’t see - - you know, so I’m not exposed as I’m turning around. But this time it was really high. So, yeah. Ms. Hart: What did you do? A.H.: Like I said, I just turned around as quickly as I could. I grabbed the covers from him and covered myself. Ms. Hart: Did you say anything to him? A.H.: No. Ms. Hart: Okay. And then what happened? A.H.: And then the massage continued as normal. The heavy breathing was still constant throughout. And then the next thing that obviously was like, okay, this is why red flags are going in my head and I feel uncomfortable. And towards the end he was putting his hands down underneath the cover to like I guess get the spine to your torso and massage, which I had had before. However, when he could come up, a lot of times massage therapists, and even him, go wide as to not graze, you know, your breast area as a woman. His thumbs were grazing the sides of my breasts, and this happened a couple times. And then he actually started to put his hand on my breasts and twirled. Like, take my nipples in between his fingers and like twirl them. And he kept saying, I’m sorry, I’m sorry. But he kept doing it. So, yes. Ms. Hart: And what happened after he said that he was sorry? A.H.: Nothing. He - - nothing. He didn’t say anything after that. I didn’t acknowledge his apology. It was nothing. Ms. Hart: Did the massage continue? A.H.: I think it continued for like - - I think he massaged a couple more times, my breasts, and then he stopped the massage. As previously noted, Respondent vehemently denies that he touched A.H.’s breasts at any time during the massage session at issue. Post-Massage Actions A.H. offered the following testimony regarding the alleged events that occurred following the massage: Ms. Hart: Okay. After he massaged your breasts and the massage was over, what happened after that? A.H.: I remember he said - - he said something like, okay. And I opened my eyes and he was just -- he was standing to the side of me. And usually he’s like - - he goes, okay, well, I’ll leave so you can dress. Do you want water? And he just stood there for a couple of minutes. And then he looked at me. And he was - - and I - - he looked at me and he - - I don’t remember - - he goes, well, what are - - he goes, what are you thinking right now, or what are you thinking. And I looked at him. And I said, I just - - I think I need to go, I want to go home. And he then left the room. Ms. Hart: And what did you do after he left the room? A.H.: I got dressed as quickly as I could so that I could leave. Ms. Hart: How long does it usually take you to get dressed after a massage? A.H.: I don’t know. A couple of minutes. I mean, I take my time usually when I’m getting dressed, so. Ms. Hart: And how long did it take you to get dressed this time? A.H.: I wouldn’t know the time frame, but I would assume faster than normal. Ms. Hart: Okay. And after you got dressed, what happened? A.H.: I didn’t see anybody. I really for - - until I got to the lobby, I thought I was the only one in the building with him, so I just tried to leave as quickly as I could. Ms. Hart: Did you tell anyone about the incident? A.H.: I went home and told my husband. Ms. Hart: Anyone else? A.H.: No, not that night. It was late. I woke up the next morning and called Clermont P.D. In explaining why she did not end the massage once she started feeling uneasy about Respondent and his alleged actions, A.H. testified as follows: A.H.: Because I had gone to him so many times in the past when I was pregnant, and I had felt comfortable with him before. So it was kind of one of those denial things where like, ah, this is in your head maybe, or you’re - - you know, you’re just - - you’re just in denial that it’s anything more than what it is. In piecing together the images and time stamps from the Joint Exhibits, it is reasonable to conclude that it took A.H. less than two minutes to put on her undergarment(s), flip-flops, chino style pants, and tank-top that she wore to Massage Envy.
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, Kurt Ehlers, L.M.T. 1 On January 22, 2021, Respondent, through counsel, filed a “Motion for Attorney’s Fees and Sanctions Against Petitioner for Raising Unsupported Claims or Defenses Pursuant to § 57.105, Fla. Stat. (2020).” Should there be a dispute regarding Respondent’s entitlement to recovery under section 57.105, Florida Statutes, the matter may, as appropriate, be referred to DOAH for resolution. DONE AND ENTERED this 8th day of April, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 8th day of April, 2021. COPIES FURNISHED: Dannie L. Hart, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Alyssa Ward, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Adrian Shawn Middleton, Esquire Middleton & Middleton, P.A. 1469 Market Street Tallahassee, Florida 32312 Kevin Gransee 1437 Market Street Tallahassee, Florida 32312-1725 Kama Monroe, JD, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257
The Issue The issues are whether Respondent violated Section 480.046(1)(c), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with the duty to regulate the practice of massage therapy in Florida. At all time relevant to this proceeding, Respondent was licensed to practice massage therapy, holding license No. MA0020209. In September 1997, Respondent provided massage therapy treatment on three occasions to a client, M.J. The treatment was intended to be therapeutic for injuries suffered by M.J. in an automobile accident. The last of the massage therapy sessions occurred on September 19, 1997, at the home of M.J.'s mother. M.J. subsequently filed a formal complaint with the Duval County Sheriff's Office. The complaint alleged that Respondent touched M.J.'s breast and nipple inappropriately during the September 19, 1997, massage therapy session. On November 24, 1997, the State Attorney, in and for Duval County, Florida, filed an Information, charging Respondent with misdemeanor battery in violation of Section 784.03(1)(a), Florida Statutes. In a jury trial on April 15, 1998, Duval County Court Case No. 97-66371 MM, Respondent was convicted of simple battery, a criminal violation of Section 784.03(1)(a), Florida Statutes. The above-referenced criminal conviction arose directly out of Respondent's massage therapy session with M.J. on September 19, 1997. Respondent would not have been charged with and convicted of simple battery but for Respondent's massage therapy practice on M.J. Respondent had to pay a $200 fine and $115 in court costs as a result of his criminal conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $500 and assessing costs of investigation and prosecution. DONE AND ENTERED this 10th day of October, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of October, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Stop 39 Tallahassee, Florida 32308 Stanley Michael Carroll 1535 San Juan Avenue Jacksonville, Florida 32210 William H. Buckhalt, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues in this case are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of section 480.0485, Florida Statutes; engaged in improper sexual activity, in violation of Florida Administrative Code Rule 64B7-26.010; or failed to appropriately drape a client, in violation of rule 64B7-30.001(5); and, if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Massage Therapy, is the state agency charged with regulating the practice of massage therapy within the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. Mr. Rodriguez is a licensed massage therapist within the state of Florida, having been issued license number MA 75735. He has been licensed since 2014. Mr. Rodriguez's current address and address of record is 812 Northeast 2nd Street, Apartment 1, Hallandale, Florida 33009. On or about January 9, 2017, Mr. Rodriguez was employed at Om'echaye Wellness & Fitness Center (Om'echaye) located at 1100 East Hallandale Beach Boulevard, Hallandale Beach, Florida 33009. On or about January 9, 2017, Patient R.A., a 24-year- old female, received a body scrub and a massage from Respondent. Patient R.A. had never received a massage at Om'echaye before, though she and her boyfriend lived close by and had eaten lunch at the Om'echaye restaurant a few times. It was on one of these earlier visits that she saw a special promotion for a body scrub and Swedish massage. She bought a gift card for the promotion for her boyfriend for his birthday. He was not enthusiastic about getting a massage there, however, so they decided that Patient R.A. would use the card herself. She reported what happened during the massage shortly after the incident. Her testimony at hearing was detailed and was consistent with previous accounts. These factors, along with her demeanor at hearing, made her testimony clear and convincing, and her testimony is credited. Patient R.A.'s appointment was at 6:15 p.m., and she arrived a few minutes early. The receptionist introduced her to Mr. Rodriguez. In the massage room, Patient R.A., having never received a body scrub before, asked Mr. Rodriguez whether she should leave her underwear on, as she had always done during massages she had received. He told her that no one did that, saying that otherwise it would be difficult to perform the body scrub. Patient R.A. asked if she should go under covers, but he directed her not to. He asked her to lie face up on the massage table and left the room so that she could undress. There were two 16" x 24" towels on the table, with which she covered herself notwithstanding his instruction, placing one over her lower body and one over her breasts. Mr. Rodriguez returned to the room and began to wet her skin with a hot towel. He asked her how she heard about Om'echaye. She told him about the gift card she had originally bought for her boyfriend's birthday, and that it was almost her birthday and that she was using the card. He learned that she was a foreign student from Germany studying psychology. He told her that his sister-in-law was a psychologist in Brazil. Patient R.A. asked him if he was from Brazil, and he told her no, that he was from Peru. He began the body scrub as they were talking. He applied a coconut and sugar body scrub solution, pushing her legs apart as he quickly worked up her legs, the back of his hands touching her vagina several times. As he bent her leg at the knee the towel slid onto her stomach, exposing her. He removed the towel completely, touched her vagina again, and then scrubbed the front part of her vagina with the body scrub. Mr. Rodriguez continued working up her body, removing the upper towel and, without asking her, began scrubbing her breasts. Afterwards, he removed the scrubbing solution from the front of her body with a hot towel. He then asked her to turn over. Mr. Rodriguez scrubbed the back body of Patient R.A. He scrubbed her buttocks and touched her anus with the side of his hands. After wiping off the body scrub solution, he told her that he would begin the Swedish massage. Mr. Rodriguez did not receive consent from Patient R.A. that she would remain undraped. He dripped hot oil onto Patient R.A. and rubbed it over her body, rubbing her buttocks, with his hands frequently against her anus, spilling oil down her buttocks. He then asked her to turn over. He massaged Patient R.A.'s front, including her breasts, and touched her vagina. He then began to rub his finger against her clitoris. Patient R.A. grabbed his wrist and told him not to touch her down there. He then returned his massage to her breast area and began to tickle her nipples. He moved his hands to her lower body several other times, touching her vagina. He came close to her clitoris, but did not touch her there again. Less clear and convincing was Patient R.A.'s testimony that Mr. Rodriguez pressed his penis against her elbow at some point during the massage. In cross examination, she stated: Q: Now, did you say in your direct testimony that there was an erect penis that touched you? A: At first was the--I believe so, but I'm not sure. That's what I said first. And even--then I mentioned I felt his genitals, but I don't think he was erect. I'm not sure. I felt it, but if he was erect-- Q: Okay. So something-- A: --I'm not sure-- Q: --something touched you, but you don't know whether it was his penis or his arm or-- A: His genitals. Patient R.A. stated at the hearing that she did not see Mr. Rodriguez touch her, but felt him touch her right arm. She did not remember how many times. Her testimony that Mr. Rodriguez pressed his penis against her was not clear and convincing. After the massage, Mr. Rodriguez asked Patient R.A., "How was it?" Patient R.A. responded that it was not a Swedish massage and that he needed to be careful about the way he performed massages. She asked him if he always did his massages like that. He responded saying, "That's how I do it with my clients. I don't know what other massage therapists do." She again said that he needed to be very careful with what he was doing. He apologized, saying, "Thank you for being cool." He gave her his business card. He offered to give her a deep tissue massage for free at his studio. He said that all of his clients come there because "it is too expensive here." Patient R.A. declined. The door to Om'echaye was locked because of the late hour that she was leaving, and Mr. Rodriguez had to open the door to let her out. At hearing, Patient R.A. said that she did not do more to prevent the assault because at first she refused to believe it was happening and later she was afraid. Patient R.A. was ashamed of herself when she got outside Om'echaye, thinking she should have stood up for herself more. At first, she was not going to tell anyone that she had been sexually assaulted, but ended up telling her boyfriend and going back to Om'echaye early the next morning and talking to the owner. She met with police later that day and gave them statements. She later notified the Department. Respondent denied Patient R.A.'s account in every material element. He testified that he never touched her vagina, anus, breasts, nipples, or clitoris, either intentionally or accidently. He testified that he acted within the scope of massage therapy practice and that no sexual misconduct occurred. He testified that she remained properly draped the entire time. He suggested that Patient R.A. made up the entire incident and that there was no video recording or witnesses.1/ Respondent also asserted that he would not have committed sexual misconduct against Patient R.A. because she was a female and he was gay, and so was not attracted to her. Curiously, Mr. Rodriguez sought to bolster this claim with testimony that he had performed some massage therapy at Ed Logan's, represented to be a gay resort, and that at one time he had advertised in a gay publication. Since the massage therapist-patient relationship does not appropriately involve sexual motivation of any kind--whether homosexual, bisexual, or heterosexual--it is not entirely clear why Mr. Rodriguez was suggesting that these activities, even had they been supported by additional documentary evidence of some sort, somehow confirmed his testimony. In any event, the assertion that he was gay, even if accepted, would not exonerate Mr. Rodriguez in light of the clear and credible testimony of R.A. in this case. The definition of sexual activity is not limited to physical contact intended to erotically stimulate the therapist, but also includes contact intended to erotically stimulate the patient, as well as contact which is likely to cause such stimulation, regardless of intention, as discussed further in the Conclusions of Law below. Respondent's touching of Patient R.A.'s breasts, nipples, anus, vagina, and clitoris, as described by Patient R.A., was direct physical contact likely to erotically stimulate either person or both. It was clearly outside the scope of practice of massage therapy. The touching described by Patient R.A. was sexual activity as defined under the rule. Patient R.A.'s testimony was clear and convincing and proved that Respondent used the therapist-patient relationship to engage in sexual activity. Patient R.A. testified that after reporting the incident, she "could not function anymore." She saw a poster saying "get a massage for $20 for 30 minutes" on campus, and she broke out in tears. She started counseling and soon after that was put on an antidepressant for a period of five months. Mr. Rodriguez testified that he depends on his massage business to make his living, that he is no longer working at Om'echaye spa, and that he has been painting buildings to pay his bills. There was no evidence to indicate that Mr. Rodriguez has ever had any prior discipline imposed in connection with his massage therapy license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy, enter a final order finding Ernesto Rodriguez in violation of section 480.0485, Florida Statutes, and Florida Administrative Code Rules 64B7-26.010 and 64B7-30.001(5), constituting grounds for discipline under section 480.046(1)(p), Florida Statutes; imposing a fine of $2,500.00; revoking his license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 30th day of August, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2017.
