The Issue The issues in this case are whether Respondent committed sexual misconduct in the practice of massage therapy and failed to appropriately drape a client as alleged in the First Amended Administrative Complaint1 (AAC), and if so, what disciplinary action should be taken against Respondent’s license.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. At all times material to this proceeding, Respondent was licensed as a massage therapist in Florida, having been issued license number MA 80545. In the time since Respondent was licensed, no prior disciplinary action has been taken against her license. Respondent was born in the Liaoning Province, North China, and came to the United States in 2005. Respondent is a U.S. citizen. Respondent attended a Beauty School for her massage education and her educational instruction at school was in English. Further, when she took the examination to become a Florida licensed massage therapist, the examination was in English, and no one helped her to translate the material. Respondent’s address of record is 9986 Red Eagle Drive, Orlando, Florida, 32826.4 At all times relevant to the AAC, Respondent practiced massage therapy, as defined in section 480.033(3), at Golden Asian Massage, LLC, doing business as The Wood Massage (Golden Asian). Golden Asian was located at 1218 Winter Garden Vineland Road, Suite 124, Winter Garden, Orange County, Florida. 4 On November 26, 2019, the parties filed a Joint Pre-hearing Stipulation, stipulating that Respondent’s address of record was in New York. At some point after the March 2016 investigation, Respondent moved out of Florida. Then, either before or after November 26, 2019, Respondent moved back to Florida, but failed to advise her counsel or DOH of her address change. Respondent’s counsel stated that he would ensure Respondent filed the appropriate change of address information with DOH. At the time of the investigation, the LEO had been trained at the police academy, had multiple courses in vice-related investigations, human trafficking investigations, and drug trafficking investigations, including prostitution activities. The LEO has participated in “well over a hundred” undercover prostitution operations. The LEO’s investigation assignments “as a whole” include “anything that would be vice-related, drug trafficking or human trafficking.” The MBI is a joint police task force for the Ninth Judicial Circuit, which includes Orange County and Osceola County. MBI routinely investigates vice, human trafficking crimes, and mid-level to upper-level narcotic organizations. Once the MBI receives a complaint about a massage parlor, an undercover investigation is initiated. An undercover investigation team usually consists of five law enforcement personnel: a supervisor-in-charge; the undercover agent (agent); and two to three additional support personnel. An agent goes into the establishment, posing as a customer. Once the agent is on the massage table, the agent waits for the massage therapist to initiate, either via conversation or through an overt act, a predisposition for sexual activity. In some instances, the massage therapist might glide their fingers in the inner thigh, or speak of some sexual activity. Once the massage therapist initiates an actual sex act, the agent then tries to stop the sex act, while engaging in conversation. On March 9, 2016, after receiving a tip or complaint about the establishment, the MBI conducted an undercover investigation of the Golden Asian. The LEO arrived at the Golden Asian, met Respondent at the counter, and in English, asked for a 30-minute massage. Respondent responded in English and told the LEO it would cost $50 for a 30-minute massage. The LEO agreed to the cost, and Respondent led the LEO to a massage room within the Golden Asian. The LEO got completely undressed and positioned himself on his stomach, face-down on the massage table. Upon entering the room, Respondent grabbed a towel and placed it on the LEO’s back midsection. The LEO described the area covered as “pretty much my buttocks to, like, my lower back,” but the towel was not tucked in. Using oil, Respondent massaged the LEO’s back, thighs, and neck. While the LEO was still on his stomach and roughly ten to 15 minutes through the massage, the towel fell off. The LEO did nothing to dislodge the towel while he was on his stomach. Roughly halfway through the 30-minute massage, Respondent “stopped massaging and it was more of a gliding motion from [the LEO’s] back to [the LEO’s] inner thighs.” With this action, the LEO determined that Respondent was predisposed to engage in sexual activity. Respondent directed the LEO to turn over, which he did. The LEO testified that after he turned over his genitals were exposed. Respondent put more oil on her hands and massaged the LEO’s chest to his thigh area. Respondent further testified that Respondent “would glide and touch [the LEO’s] penis and scrotum.” Respondent asked the LEO if he liked it when Respondent “tapped” the LEO’s penis. The LEO answered “yes” to Respondent’s question. The touching of the LEO’s penis and scrotum again provided the predisposition that sexual activity could be engaged. The LEO then asked Respondent for oral sex, i.e. a blow job. Respondent declined to perform oral sex. The two engaged in talking and hand gesturing regarding manual masturbation and its cost. The LEO testified Respondent raised her hand to indicate manual masturbation would be $40.00. Respondent testified that she said “no” and did not state a price. As provided below, Respondent’s testimony was not credible. The LEO told Respondent that $40.00 was too expensive for masturbation. He then grabbed the original towel that had draped him from between his legs, cleaned the oil, dressed, and left the massage establishment. Shortly thereafter, Respondent was arrested.5 5 The dismissal of Respondent’s criminal charges is not probative of whether she committed the regulatory violations. Respondent’s hearing testimony of how the towel fell off during the LEO’s massage differs from her deposition testimony. At hearing, Respondent testified that when the LEO flipped over, the towel fell off and she did not grab it fast enough. Respondent then added it took her “one minute, two minutes” to adjust the towel. Respondent admitted that she exposed the LEO’s genitals without his permission. However, during her deposition, Respondent blamed the type of oil massage that she was administering to the LEO for the towel falling off. Respondent claimed that her hand movement was “pretty hard. So with the movement, the towel shifting a little bit by little bit, and then [the towel] fell off completely.” Respondent also testified that she “saw it [the towel] dropped off, then [she] put it back right away.” In either instance, the LEO’s genitals were exposed without his consent. At the hearing, Respondent’s description of the towel used on the LEO changed from her deposition. During the hearing, Respondent testified the towel was “one to two feet wide . . . the length is about 1.5 meters [over four feet]. I’m not exactly sure.” However, in her deposition, Respondent provided that the towel was “more like a facial towel. It’s not a very big shower towel, but it’s more a facial towel size . . . one [foot] by two [foot].” Respondent’s testimony describing the LEO’s massage is not clear or credible and is rejected. The LEO’s testimony was credible, clear, convincing, and credited. Ms. Buhler is a licensed massage therapist and based on her education, training, and experience, she is accepted as an expert in massage therapy. “Draping” is covering the body while a massage therapist is working on it for the client’s comfort and privacy. Usually, a sheet is used for draping a client (if the room is too cold, a blanket could be added). As a massage therapist works on specific body areas, that body part is uncovered and the towel repositioned when the therapy to that area is completed. Ms. Buhler opined that the size of the towel (“1 [foot] x 2 [foot]” as described by Respondent in her deposition) is “very small,” and is an unusual drape size. Further, she opined that a “1 x 2 towel barely covers anything. It would be almost impossible not to either view something or potentially accidentally bump something with a drape of that size.” If any drape were displaced during a massage, the standard of care requires that the drape be put back in place immediately, not in one or two minutes. Ms. Buhler opined that “anytime a therapist attempts to, either for their own pleasure or for the pleasure of the client, to get any sort of sexual gratification, that is considered sexual misconduct.” A therapist has a choice when any type of sexual activity is suggested or offered. A therapist can redirect someone, state that the activity is not appropriate for the setting, threaten to terminate the massage, or in fact, terminate the massage by leaving the treatment room. Respondent provided that she continued to massage the LEO for one or two minutes after the request for oral sex. Although Respondent claimed she said “No,” she did not take any affirmative action to terminate the session or remove herself from the situation. Respondent’s actions on March 9, 2016, were outside the scope of generally accepted treatment of massage therapy patients. There is no evidence that Respondent has ever had any prior discipline imposed against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Massage Therapy enter a final order finding Respondent, Mingli Li, in violation of sections 480.046(1)(i) and 480.0485, Florida Statutes, constituting grounds for discipline under section 480.046(1)(p), imposing a fine of $3,500.00; revoking her license to practice massage therapy; and assessing the cost of investigating and prosecuting the Department’s case against Respondent. DONE AND ENTERED this 13th day of February, 2020, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2020. COPIES FURNISHED: Zachary Bell, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Michael S. Brown, Esquire Law Office of Michael S. Brown, PLLC 150 North Orange Avenue, Suite 407 Orlando, Florida 32801 (eServed) Christina Arzillo Shideler, Esquire Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Kama Monroe, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
The Issue 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 to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of section 480.0485, Florida Statutes, and, if so, the appropriate sanction.
Findings Of Fact Based on the stipulations of the parties, evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner, Department of Health, Board of Massage Therapy (Petitioner or Board), is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43, and chapters 456 and 480, Florida Statutes. Stipulated Facts At all times material to this proceeding, Respondent was a licensed massage therapist in the state of Florida, holding license number MA48984. Respondent’s current address of record is 4069 Old Mill Cove Trail West, Jacksonville, Florida 32277. At all times material to this proceeding, Respondent worked for Massage Envy, a massage establishment in Jacksonville, Florida. On or about August 28, 2020, Respondent performed a massage on A.M., a 32-year-old female. In preparation for her massage, A.M. undressed, laid down on a massage table, and covered herself with a draping. In the course of the massage, Respondent uncovered A.M.'s right leg and massaged her quadricep. Sexual misconduct is outside the scope of generally accepted practices of massage therapy. No massage therapist may engage in sexual misconduct with his or her patient. Facts Adduced at Hearing Respondent was educated in massage therapy, and has practiced massage therapy for roughly 13 years. As part of his education, he received education in ethics and professional conduct. He has also received continuing education as part of his Florida licensure. His education included instruction that sexual misconduct is not allowed. Respondent worked for Massage Envy at two of its Jacksonville branches, though he was released after the report of the August 28, 2020, incident. He also works as a massage therapist for the Jacksonville Jaguars professional football team. Respondent indicated that if a client raises a sexual issue during a massage, a massage therapist is instructed to give the client every opportunity to correct their pattern of behavior and/or try to divert the behavior back to the massage. If the client persists, the therapist may ask the client to stop or leave the room. Respondent testified that prior to August 28, 2020, he had not been accused of misconduct of any form in connection with his practice of massage therapy, nor had a client objected about his touching them inappropriately during a massage. There was no evidence to the contrary. A.M. was a regular client of Respondent on a generally month-to- month basis, having become a member at Massage Envy in July 2015. She received massages on a monthly basis until services were suspended for an undisclosed period due to Covid-19. The Massage Envy facility had reopened at some time prior to August 28, 2020. Respondent was A.M.’s primary massage therapist, though she was treated by another massage therapist, Ross, when Respondent was unavailable or when A.M. saw him by choice to provide specialty service. Ross was regarded as being particularly skilled in treating the neck area. A.M. and Respondent had no interaction, professional, social, or otherwise, outside of Massage Envy. A.M. and Respondent would talk during treatment. The subject matter previously varied, and A.M. may have occasionally strayed into areas that could be perceived as inappropriate, but there was nothing to cause concern on Respondent’s part that would have resulted in termination of a session. A.M. typically kept her eyes closed during treatment, occasionally falling asleep. The massages generally had their desired effect of relaxation such that A.M. was often in a “massage daze” afterwards. At some time prior to the events at issue, Respondent wrote his telephone number on the back of a Massage Envy tip envelope and gave it to A.M. The reason for Respondent providing his number to A.M. was, as is the case with many of the facts of this case, disputed. A.M. testified that due to the Covid-19 outbreak, Massage Envy had closed. She stated that Respondent told her that he had been seeing clients at their homes, and gave her his number in case she wanted him to give her a massage at her home. Respondent, on the other hand, testified that he had a favorite pair of “massage pants” that were in need of repair, and that he had given them to A.M., who is a seamstress, to have her take a look at them. Respondent stated that he gave A.M. his telephone number so that she could call him to let him know if they were worth trying to fix. A.M. acknowledged that at some point during her professional relationship with Respondent, they discussed whether she could repair the pants. However, A.M. denied that he had provided her with his number when he gave her the pants, stating that it made her uncomfortable that she was not able to contact him regarding the work that it would entail. The events of August 28, 2020, could not be more contested. This is not a case of nuanced behavior. Sexual activity occurred, or it did not occur. The testimony of each is summarized as follows:1 A.M.’s Testimony A.M. testified that she appeared at Massage Envy at 9:00 a.m. on August 28, 2020, for a scheduled 90-minute massage. She undressed and laid face down on the massage table, covered by a sheet. There was no evidence as to whether A.M. completely disrobing was her routine, but neither A.M. nor Respondent indicated it to be outside of the norm. The massages with Respondent were “mostly the same order of operation,” but on the 28th, since A.M. was sore from a workout, she asked that Respondent not do a deep massage. Respondent massaged A.M.’s back, legs, and arms without incident. During the first part of the massage, A.M. engaged in conversation with Respondent. She did not believe the discussions were sexual in nature. She told Respondent about her new fitness routine and the workouts involved. Respondent noted that that he had noticed, and that she looked really good, to which A.M. replied “oh, thanks.” In the second conversation, A.M. asked Respondent to weigh in with his thoughts about a situation in which a client asked if he should take A.M. to dinner after the completion of a job. A.M. stated that she told the client “look, I'm down to go to dinner with you, but I have to let you know that I do have a partner and he will know about this.” She stated that the prospective 1 The recitation of testimony that follows is graphic and unfiltered. In a case dependent entirely on the testimony of the only two witnesses to the event, it seems necessary to consider, in full, the testimony of the only two witnesses to the event. client said “Oh, no you got me all wrong,” decided not to go through with the work, and never spoke with her again. A.M. was curious as to Respondent’s speculation as to the client’s intentions. She also indicated that although she was in a relationship, she was open to dating other men, as long as her partner knew about it. Roughly halfway through the massage, A.M. turned over so Respondent could massage the front of her body, as was normal. Respondent began to massage the quad at the front of A.M.’s upper right leg. A.M. testified that, when Respondent started massaging her quad, instead of downward strokes along the quad towards her feet, he started to massage upward and around the top of her quad behind her upper thigh until he was touching her buttocks and her vulva. As Respondent began to touch A.M., she clenched her buttocks, and asked, “Is this a thing that's happening?” Respondent started to finger A.M.’s vagina and asked, “Is this okay?” to which A.M. replied “yes, that's fine.” Respondent continued to insert his finger into A.M.’s vagina. She remembered Respondent saying, “Damn, it's so wet and tight,” to which she replied “And smooth.” A.M. testified that as Respondent fingered her vagina with one hand, he had the other on her clitoris, but would intermittently massage the nipple and areola of her right breast. A.M. testified that Respondent again remarked about how tight her vagina was, and that she responded, “My asshole is, too.” A.M. later testified that she was shocked that the event was happening, but that “when it happened I tried to enjoy it,” and put her hands over her head and moaned. A.M. testified that she did not run or resist because “I didn't know what would happen if I did. Like, I felt very vulnerable, and, I thought, you know, like, I'll just lay here and let it finish.” Although Respondent had never given A.M. reason to believe he was violent, she testified that “he is still tall and bigger than me and muscular and I was naked. I'm 4' 11. I was very vulnerable.” At no point during the incident did A.M. tell Respondent to stop. Rather, A.M. recounted that after a while, she ultimately said, “look, I'm not going to cum from this, can you please just make sure my muscles are even,” to which Respondent stated, “I guess I have to go back to doing my job.” She remembered him continuing to finger her vagina for a bit longer before he stopped and said, “I’m sorry. I'm sorry,” to which she “thanked him” and said, “Don't be sorry. I guess people just like touching me.” As Respondent concluded, A.M. asked Respondent if he had a crush on her, and told him she “would try to be better prepared the next time.” A.M. testified that Respondent then proceeded to massage her low back from underneath. She thought he may have been wiping his hands on her. He then moved to massage her shoulders, at which time A.M. said, “oh, great, I'm going to smell like pussy juice now.” She testified that Respondent then said, “you're going have guys hawking all over you from all the pheromones.” A.M. testified that as Respondent concluded, she said a few more things because it seemed awkward, and remembered Respondent saying “I wanted to do that for a long time, but, you know, had to keep it professional.” A.M. testified that after the sexual act was concluded, she told Respondent that “I actually had a sex dream about you once, but it was no big deal.” He asked “was it one of those when you felt like you were really there?” A.M. said, “yeah,” and Respondent said, “That's awesome.” She also indicated that she asked “is this why girls at the front desk are like, oh, you were with Mike, he's so amazing,” to which he just kind of laughed. A.M. also stated to Respondent “I've always honestly come here for a massage,” to which he replied “I think my clients come back to me because I use a lot of pressure.” A.M. also testified that, again after the sexual act was concluded, she told Respondent “that one time while I was receiving a massage from Ross that he had his hands on my neck and I just wondered to myself what it would be like if he choked me.” She recounted that Respondent replied that “[w]e often wonder what our clients are thinking.” Respondent finished the massage and left the room, closing the door behind him as was normal. A.M. got dressed and headed for the front desk. She noticed a clock that read 10:59 a.m., well beyond the scheduled 90- minute massage. A.M. testified that she saw Respondent in the hallway, and said “Bye. See you next time.” She testified that she was in a “massage daze” as she walked to the front desk to check out. She spoke with the manager, telling her that she felt very relaxed. She paid for the massage, and left a tip for Respondent. She did not say anything else to anyone about the massage before she left the premises. As to the reason for not alerting anyone at Massage Envy to the incident, A.M. testified that “I was confused. You know, like, obviously, I said I wasn't injured. So, maybe, you know, I thought to myself, oh, maybe that's a thing that happened and I can get over it.” Respondent’s Testimony A.M. had a 9:00 a.m. appointment with Respondent on August 28, 2020. A.M. went to the massage room alone, undressed, and laid face down on the massage table. She was draped with a sheet. Respondent testified that the appointment was normal. He greeted A.M., asked if there was anything that needed particular attention, and tried to get an understanding of what she was looking for in the massage that day. A.M. was sore from exercise, and did not want a deep massage, as she typically received. She did request a full body massage. From what he could recall, Respondent performed a “normal service,” with no specific out of the ordinary requests. Respondent has an established routine when performing massage, working around the body in a clockwise pattern to ensure that he does not skip a body part or miss something along the way. Patients typically start lying on their stomachs and, about halfway through a session, turn over. The general pattern is the same on both sides. That has been his practice since therapy school. Respondent testified that A.M.’s massage as she was positioned on her stomach was uneventful, and conversation routine. About midway through the massage, A.M. turned over, which was the normal course for a full body massage. Respondent testified that “the conversation quickly changed and it went into one of that was off the topic of massage of what we had been talking about.” He recounted three topics of conversation during the course of A.M.’s massage that started to get “off track.” First was the discussion, also a topic of A.M.’s testimony, regarding a client she had done some work for. Respondent stated that A.M. wanted his advice because “you're a guy, you might understand why he reacted this way.” Purportedly, to Respondent’s recollection, after A.M. completed the work, the client asked A.M. to dinner “and other things.” Respondent indicated that A.M. told the client “yeah, I'm cool with that, but I have to ask my boyfriend,” which caused the client to be taken aback. A.M. was curious about the client’s reaction, and wanted Respondent’s opinion as to his reaction. Respondent testified that “I guess it's because he wasn't expecting the response about your boyfriend.” Respondent testified that the question was off the topic of massage, and “a little strange and a little weird.” However, it was not to the point of what he perceived as “crossing that line.” Respondent testified that he redirected the conversation, with mixed success, back to what was needed in terms of the massage, but did not report the conversation to any other employee or manager at Massage Envy. Respondent testified that at another point in the massage, A.M. advised him that she had “a wet dream” in which Respondent performed oral sex on her. Respondent testified that he again tried to redirect the conversation to one of massage. A.M. had been a client quite a long time, and he was giving her every opportunity to continue to be a client. Finally, Respondent testified that when he started to work on A.M.’s neck, she advised him that when she was worked on by Ross, a massage therapist known for his neck work, she wondered what it would be like for him to choke her. Respondent perceived the choking to be for sexual gratification. As “shocking” as he perceived the comment to be, Respondent testified that “I tried to redirect it towards massage,” saying “Ross is good at neck work and a lot of his clients see him for neck work.” He was close to the end of the massage, tried to quickly finish the massage and said, “okay, hey, that's it, we're done.” Respondent testified that as he went to walk out of the room, A.M. noted that he forgot to work her pectoralis muscles on the upper part of her chest. Although he was already running over the scheduled time, he came back, massaged both sides for a few minutes, and left the room. It is Respondent’s normal custom to leave the room after a massage so the client can dress in privacy. Respondent testified that as A.M. left, “she said bye to me, and she goes I'll see you later.” She left him a “generous” tip -- over $30. Respondent testified that he found the nature of the conversations with A.M. to be “shocking.” However, he did not mention them to either his coworkers or management at Massage Envy. He testified that, in retrospect, he should have left the room and gone directly to management. He indicated that clients discussing topics that may be inappropriate -- politics, religion, things of a sexual nature -- are not uncommon. He tries to act professional and go about his business. He stated that, as he goes from client to client to client throughout the day, “[y]ou never think it's going to go to something like this or this point.” Respondent denied touching on or near A.M.’s vagina. Respondent denied touching A.M.’s breasts, though he did massage her pectoralis muscles along the collarbone and the upper path of the muscle tissue. Respondent denied that he experienced any type of sexual arousal during A.M.’s massage. Post-Incident Events - A.M. On August 31, 2020, while A.M. was masturbating, the events of August 28, 2020, came back to her. She came to the conclusion that what happened was wrong. Up until that point, A.M. had not told any other person about the alleged incident. The next day, September 1, 2020, A.M. went to Massage Envy to cancel her membership. She did not tell the representative about her allegations regarding Respondent. Massage Envy did not permit A.M. to cancel her membership that day. However, they allowed her to freeze her account. She could then cancel within the time needed to cancel without having to pay for another month.2 That same day, after her effort to cancel her membership proved unsuccessful, A.M. sent two text messages to Respondent. In her first, sent at 12:59 p.m., she said “Hey Mike, it’s A.M.,” to which Respondent replied at 2:12 p.m. “How are you?” A.M. then responded at 4:43 p.m.: I’m not okay I’m sad and angry over what happened Friday. I feel taken advantage of regardless of anything I said. None of what I said was an invitation to do that to me. I was in a very relaxed state of being. I’m disappointed that I built trust with you and that I paid you to do this to me. This was something I routinely made part of my fitness 2 Despite having frozen her membership, her next month’s dues were still withdrawn from her account. Massage Envy was apologetic and cancelled the membership. A.M. did not ask for a refund, and it is unclear, and ultimately irrelevant, whether she received one. and wellness the past several years. I had to cancel my membership today. I really hope you don’t do this with anyone else. A.M. then blocked Respondent from her contacts, though Respondent indicated that he did not try to reply. On September 2, 2020, A.M. discussed the incident with her friend, Dr. Ferrer-Bruker. The initial contact between A.M. and Dr. Ferrer-Bruker occurred that afternoon, when A.M. asked to discuss something “heavy.” They spoke around 6:00 or 7:00 p.m. Dr. Ferrer-Bruker recalled that A.M. told her that she received a massage from her regular massage therapist, and that he “fingered her,” and that she regretted that she did not do something different as a reaction at the time. Dr. Ferrer-Bruker tried to comfort A.M., and recommended that she go to the police, a discussion confirmed by A.M. Dr. Ferrer-Bruker remembered little else of the conversation. After having spoken with Dr. Ferrer-Bruker, A.M. filed a police report with the Jacksonville Sheriff's Office (“JSO”) later in the evening on September 2, 2020. At 8:53 p.m., A.M. texted Dr. Ferrer-Bruker that “[t]hey are sending a police officer to me now.” The JSO conducted an investigation of the August 28 incident. A.M. testified that she recalled telling the police that she was shocked and terrified and scared at the time the incident was going on. However, she testified that Respondent had never previously given her reason to believe he was violent, nor had he made her feel threatened in a physical manner. Between the time A.M. made the police report and the date she reported the incident to Massage Envy, she stated that she discussed the incident with other persons. None of those persons testified and there is no other evidence of any such discussions. On September 14, 2020, A.M. reported the incident to Massage Envy. She advised the manager, Katherine Petrino, that she had a massage with Respondent on August 28, 2020. She reported that the massage started as normal, but as Respondent starting to massage her quad, he instead fingered her vagina. Later that day, A.M. emailed Ms. Petrino with an account of the incident that, despite her statement that her “[m]emory is foggy on the sequence of what else was done and said,” differed little, if at all, from her testimony. A.M. was then contacted by Redirect, a third-party investigator for Massage Envy. She restated the events to the representative. Post-Incident Events - Respondent About two weeks after August 28, 2020, Ms. Petrino, the clinic manager for Massage Envy - Harbor Village, advised Respondent that there was a complaint against him for inappropriate touching. She did not give details. Respondent was placed on suspension until further notice. A couple of days later, Respondent was contacted by the third-party investigator, and gave a statement. He testified that he told the investigator how the massage went, what body parts were worked on, and described the conversation. He advised of having received both of A.M.’s text messages on September 1, 2020, and that he did not respond to her second, lengthier message. He indicated that his discussion with the investigator was consistent with his statements at the hearing and otherwise. Social Media Starting around December 4, 2020, A.M. posted her thoughts regarding the incident on Instagram. The posts, with a few exceptions, were not dated. The text of the first post was as follows: TW: Sexual Assault I keep thinking about how the scariest thing I feel like I did this year was pick up the phone to report my abuser. I felt the most shame because I didn't think anyone would believe me because a) I'd known them so long b) they were well-loved at the place and c) I'm a sex pot so maybe it would just be “on-brand” to have “let it happen and regret it” (second quotes are actual words from a JSO officer in 2020). Please, the “brand” is pleasure. The brand is consent. The brand is joy, not confusion and fear and freezing and trying to just say anything to get through a situation. The brand is context and that it never should have happened in the first place. How sad is it that I just said the scariest thing was reporting my abuser and not the fact that it happened at all? Life is not happy and positive as a default. I've never been fake about anything, just learned that people love to see joy on here. Anyway, I am very grateful for this escape and the support I have gotten from my beautiful partner, friends, and family. Most of all grateful for myself because I'm mf-ing that bitch. A second post, also undated, provides that: TW: Sexual Assault I was gonna blame a man for molesting me and stressing me the fuck out and sending me into uncontrollable depression for setting me behind on all of my work but the reality is I'm actually just celebrating the fact that I've made it, I pushed through, and I am THAT bitch who was able to crush three custom wedding gowns in a week so ??????????? Try not to fuck with me THANKS!!! ?? Unlike the JSO investigation, the question here is not one of consent. If the acts alleged occurred between A.M. and Respondent, acting in the course of his licensed profession, they constitute a violation of section 480.0485, whether they were engaged in between two consenting adults, or whether they were forced upon the client entirely without consent. In short, if the acts occurred, they violated the massage therapy practice act. The testimony of Dr. Ferrer-Bruker, who was not a witness to any of the alleged acts of Respondent, played no direct role in the determination of the outcome in this matter. A.M.’s testimony was forceful and emotional. Despite her self- perceptions and her “brand,” she was precise about the facts, and adamant as to the role of consent in a sexual encounter. Respondent’s testimony was equally forceful, but more reserved in delivery. He testified that he loved his family and his job, that he had built a reputation and a career over many years, and performed at a high level. He stated that he would not jeopardize his work, his reputation, and his clients’ trust -- in short that he “would never do that, to sit there and throw it away on something like this.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy, enter a final order dismissing the Administrative Complaint against Respondent, Michael E. Maloy, L.M.T. DONE AND ENTERED this 16th day of March, 2021, in Tallahassee, Leon County, Florida. S GARY EARLY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2021. COPIES FURNISHED: T. A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Ryan Sandy, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Kama Monroe, JD, Executive Director Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 James C. Poindexter, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Kristen M. Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399
The Issue The issues in these consolidated cases are whether Respondent committed sexual misconduct as charged in the Administrative Complaints, and, if so, what penalty should be imposed.
Findings Of Fact The Department is charged with regulating the practice of massage therapy pursuant to chapters 456 and 480, Florida Statutes. At all times material to this case, Respondent was a licensed massage therapist in Florida, having been issued license number MA 11149. Respondent has practiced massage therapy for approximately 30 years. Client M.S., DOAH Case No. 20-4754PL On January 10, 2018, M.S. completed her initial client intake form with Respondent which contained several sections. M.S. wrote that she suffered from post-concussion syndrome. According to M.S., she was diagnosed with post-concussion syndrome and mild traumatic brain injury after a log fell on her head in August of 2017. Under the heading “concerns,” M.S. wrote: “I’m going crazy and losing memory completely—eyes burning.” Under “recent changes,” M.S. wrote: “loss of memory, confusion, irate, irritability, uncontrollable anxiety, depression, extreme vertigo, unable to focus or comprehend, extreme nervousness and feeling out of control emotions.” M.S. had four massage sessions with Respondent on January 10, 19, 24, and 31, 2018. M.S. removed her shoes but was otherwise fully clothed during all four massage sessions. The Department alleges that the sexual activity occurred during M.S.’s fourth and final session on January 31, 2018. Specifically, the Department alleges that Respondent touched M.S.’s labia with his fingers, rested his fingers on M.S.’s vagina, and cupped her vagina.2 During her testimony, M.S. demonstrated how Respondent touched her vagina. Using her own hand to demonstrate, M.S. placed her hand above her vagina with her fingers pointed in a horizontal position. M.S. did not indicate that Respondent “cupped” her vagina during this demonstration. Respondent denies that he touched M.S.’s labia with his fingers, rested his fingers on her vagina, or cupped her vagina. Respondent’s testimony as to the touching that occurred during the January 31, 2018, massage session was credible and more precise than that of M.S. Respondent’s testimony is accepted over the testimony of M.S. where it conflicts. Dr. George Rozelle is the physician who owns the facility where Respondent performed massage therapy on M.S. The Department offered hearsay testimony from a witness who heard Dr. Rozelle say “not again” when M.S. told him that Respondent had touched her inappropriately during the massage session that occurred that day. The inference suggested by the Department is that Respondent had been previously accused of inappropriately touching other massage therapy clients on other occasions. 2 The Department also states in its PRO that Respondent touched M.S.’s breasts. The Administrative Complaint in DOAH Case No. 20-4754PL does not, however, identify the touching of M.S.’s breasts as a sexual activity that occurred when Respondent massaged her, and therefore cannot serve as a basis for disciplinary action in this case. Trevisani v. Dep’t of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Delk v. Dep’t of Prof’l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992). The testimony is hearsay for which the Department failed to establish an exception, and is unreliable because Dr. Rozelle did not testify to explain what he meant when he said “not again.” Even if Dr. Rozelle said “not again,” because there were one or more prior similar complaints about Respondent, such unproven allegations cannot be relied upon here to establish that Respondent had a propensity to commit sexual misconduct on massage therapy clients. § 120.57(1)(d), Fla. Stat. For all of these reasons, the “not again” statement is not accepted as evidence against Respondent. The Department failed to prove that Respondent engaged M.S. in sexual activity, or that Respondent touched M.S. in a manner that was intended to, or likely to, erotically stimulate himself or M.S. Client S.B., DOAH Case No. 20-4755PL S.B. presented to Respondent for massage therapy for the first time on August 15, 2017. S.B. completed a client information form indicating that the reason for her visit was “low energy, lost, depressed.” S.B. wrote that she experienced these conditions for four years, that they followed an undisclosed accident, trauma, or illness, and that they were aggravated by “life.” S.B. was seen by Respondent for massage therapy on nine different occasions on August 17 and 20, and October 10 and 19, 2017; January 16, 23, and 30, and February 6 and 15, 2018. Respondent was fully clothed during all the massage sessions with Respondent. S.B. testified that Respondent told her that he “loved” her and that he was “never going to leave” her during several visits, but she could not identify when Respondent made those statements. S.B also testified that Respondent told her that she may experience an orgasm when he applied pressure to her groin during a session, but she could not recall when that happened. S.B. testified that she returned to see Respondent for message therapy after he touched her groin and allegedly made the “orgasm” comment, but that she had another female massage therapist with her during the session. Additionally, S.B. testified that Respondent put his hands over her breasts during more than one session, but she could not say how often or when this occurred. S.B. denied that Respondent ever “grasped” her breasts and admitted that she never complained to Respondent about allegedly touching her breasts. Respondent denied that he told S.B. that he “loved” her, that he was “never going to leave” her, or that she might experience an “orgasm.” According to Respondent, he touched S.B.’s adductor muscles and pubic bone—not her vagina—to help reduce her complaint of hip pain during her third visit on October 10, 2017. S.B.’s testimony was imprecise and the facts to which she testified were not distinctly remembered. Respondent’s testimony is accepted over S.B.’s testimony where it conflicts. The Department failed to prove that Respondent engaged S.B. in sexual activity or that Respondent touched S.B. in a manner that was intended to, or likely to, erotically stimulate himself or S.B.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy, enter a final order dismissing the Administrative Complaints. DONE AND ENTERED this 26th day of May, 2021, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2021. COPIES FURNISHED: Mary A. Wessling, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Richard A. Greenberg, Esquire Rumberger Kirk & Caldwell 101 North Monroe Street, Suite 120 Tallahassee, Florida 32301 Julisa Renaud, Esquire Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Kama Monroe, JD, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 Ann L. Prescott, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
The Issue The issues to be determined are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of chapter 480, Florida Statutes, as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The following Findings of Fact are based on the testimony presented at the final hearing, exhibits accepted into evidence, and admitted facts set forth in the pre-hearing stipulation. Petitioner is the State agency charged with regulating the practice of massage therapy pursuant to section 20.43, Florida Statutes; chapter 456, Florida Statutes; and chapter 480, Florida Statutes. At all times material to the Complaint, Respondent was licensed to practice massage therapy in Florida since April 27, 2016, having been issued license number MA81902. Respondent’s address of record is 3830 Williamsburg Park Road, Jacksonville, Florida 32257. She also maintains an address of 121 East Norwood Avenue, Apartment C, San Gabriel, California 91776. Respondent moved from her native country, China, to the United States in 2012. Respondent’s native language is Mandarin Chinese and her ability to communicate in English is very limited. The JSO Vice Unit is the law enforcement office which investigates prostitution at massage therapy establishments in Jacksonville. Detective N.E. has been a civilian law enforcement officer for approximately 13 years. He was working in the JSO Vice Unit on June 29, 2017. As a member of the vice unit, Detective N.E. has conducted approximately 10 to 20 undercover prostitution investigations of massage therapy establishments. On or about June 29, 2017, JSO conducted an undercover prostitution investigation at Luxury Massage located at 3830 Williamsburg Park Road, Suite 4, Jacksonville, Florida. Detective N.E. entered Luxury Massage undercover, posing as a client. Detective N.E. requested a 30-minute massage from Respondent, for which he paid Respondent $50. Respondent escorted Detective N.E. to a massage room where Detective N.E. completely disrobed and laid face down on the massage table. As Detective N.E. lay on his stomach, Respondent began performing a massage on him. A towel was covering him as he lay on his stomach. Respondent massaged Detective N.E.’s back, and she later asked him to flip over onto his back, which he did. While Detective N.E. was on his back, Respondent began massaging his chest. At some point, Respondent pointed to Detective N.E.’s penis. Then Detective N.E. asked Respondent “is $60 good?” Respondent nodded her head indicating, “yes.” Detective N.E. continued to ask Respondent questions, for example, whether Respondent would use oil and Respondent verbally responded, “yes.” When asked whether she had towels to avoid making a mess, Respondent again verbally responded, “yes.” Although Respondent did not testify at hearing, Respondent’s verbal responses were recorded on a concealed recording device as part of the investigation. At hearing, Detective N.E. testified that Respondent grabbed his penis after she pointed to it. However, there was no allegation that Respondent touched Detective N.E.’s penis in the police report, which was prepared following Respondent’s arrest. On cross-examination, Detective N.E. explained that Respondent’s touching of his penis is not routinely included in the police report. The undersigned finds it unusual that touching of genitalia would be excluded from a police report when conducting a prostitution investigation. Detective N.E.’s testimony on this point is not accepted. Respondent denied that she engaged in any sexual activity in her response to the Complaint. Based on the totality of the circumstances, the undersigned finds that Respondent offered to massage Detective N.E.’s penis for $60.00. After the encounter, Detective N.E. gave a signal and Respondent was arrested by other law enforcement officers who came on the scene. Respondent was positively identified by Detective N.E. on the scene and at the final hearing. Katelin Reagh is a licensed massage therapist and based on her education, training, and experience, she is accepted as an expert in massage therapy. Ms. Reagh opined that offering to massage a patient’s genitalia is not within the scope of practice for massage therapy. As noted in the deposition testimony of Ms. Reagh, there is no accepted practice within the scope of licensed massage therapy that allows a therapist to ever touch, or offer to touch, the genitalia of a patient. Respondent’s actions on June 29, 2017, were outside the scope of generally accepted treatment of massage therapy patients. Respondent used the massage therapist-patient relationship to attempt to engage Detective N.E. in sexual activity when she offered to massage Detective N.E.’s penis, by pointing at the detective’s penis and agreeing to accept $60 payment for the service. There is no evidence that Respondent has had any prior discipline imposed against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Massage Therapy, enter a final order finding the following: Ms. Fengyan Liu, L.M.T. in violation of section 480.0485 and rule 64B7-26.010; Revoking her license to practice massage therapy; Imposing a fine of $2,500; and Assessing costs in an amount to be determined by the Board. DONE AND ENTERED this 16th day of November, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2018.
The Issue The issue in this case is whether Respondent, Hae Suk Bornholdt, committed the offense alleged in an Amended Administrative Complaint issued June 12, 2000, and, if so, what penalty should be imposed upon Respondent.
Findings Of Fact Petitioner, the Department of Health, Board of Massage Therapy (hereinafter referred to as the "Board"), is the state agency charged with the authority and duty to regulate the practice of massage therapy in the State of Florida. Chapters 20, 456, and 480, Florida Statutes. Respondent, Hae Suk Bornholdt, applied for licensure as a massage therapist in the State of Florida on December 1, 1999. Ms. Bornholdt's application for licensure was approved and she was licensed as a massage therapist in the State of Florida effective December 28, 1999. Respondent's license number is MA 30419. At all times relevant to this proceeding, Ms. Bornholdt was employed by Fame Limited, Inc. (hereinafter referred to as "Fame"). Fame is located at 4799 North Federal Highway, Boca Raton, Florida. Fame is a massage establishment. On December 2, 1999, an undercover policy investigation was begun of Fame in response to anonymous complaints of sexual activities between massage therapists and male clients of Fame. Robert F. Flechus, a detective with the Boca Raton Police Department, entered Fame posing as a client. Detective Flechus paid $80 for a massage. He was greeted by Ms. Bornholdt, who identified herself as "Tina." Ms. Bornholdt led Detective Flechus to a locker room where he undressed, left his clothes in a locker, and wrapped a towel around himself. Detective Flechus took a sauna and was then led by Ms. Bornholdt to a shower room where he showered. Ms. Bornholdt washed Detective Flechus, including his buttocks, with a sponge. After showering, Ms. Bornholdt led Detective Flechus into a room where she gave him a massage. During the massage, Ms. Bornholdt suggested that Detective Flechus masturbate while she massaged his stomach. When he refused, Ms. Bornholdt took Detective Flechus' hand and attempted to place it on his penis. Detective Flechus immediately pulled his hand away. Ms. Bornholdt then removed the towel that was partially covering Detective Flechus' genitalia and began to stroke his penis. Detective Flechus stopped Ms. Bornholdt and got up off the massage table. Ms. Bornholdt failed to properly drape Detective Flechus when she allowed his penis to be exposed to her during the shower and while he was on the massage table. Ms. Bornholdt was not licensed as a massage therapist on December 2, 1999. Ms. Bornholdt acted as a massage therapist with Detective Flechus and other clients prior to receiving her license on December 28, 1999. Detective Flechus' testimony in this matter was clear, consistent, and credible. Ms. Bornholdt's testimony on the other hand was inconsistent, unconvincing, and not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Massage Therapy finding that Hae Suk Bornholdt committed the offense alleged in the Amended Administrative Complaint issued on June 12, 2000; it is further RECOMMENDED that the Board of Massage revoke Ms. Bornholdt's license to practice massage therapy and assess the costs of investigating and prosecuting this case. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 16th day of August, 2000. COPIES FURNISHED: Dennis G. King, Esquire Rudolph C. Campbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Mail Stop 39 Tallahassee, Florida 32308 Lawrence K. Fagan, Esquire LaValle, Brown, Ronan & Soff 750 South Dixie Highway Boca Raton, Florida 33432 William H. Buckhalt, Executive Director Board of Massage Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue The issues in this case are whether Respondent, Mehdi Safdari, L.M.T., committed the offenses alleged in the Administrative Complaint issued August 8, 2001, and, if so, to what extent should his license be disciplined or should he be otherwise penalized.
Findings Of Fact Petitioner, the Department of Health, Board of Massage Therapy (hereinafter referred to as the "Board") is the state agency charged with the authority and duty to regulate the practice of massage therapy in the State of Florida. Pursuant to Subsection 20.43(3)(g), Florida Statutes, the Department of Health has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Board, as appropriate. Respondent, Mehdi Safdari, was a licensed massage therapist in the State of Florida at all times material to the allegations in the Administrative Complaint. Respondent's license number is MA 11488. He was originally certified on January 14, 1991; his current license will expire on August 31, 2003. The complainant, R.C., a 44-year-old female who has an associate's degree in social services from Hesston College in Hesston, Kansas, is a certified activities director. At all times material to the allegations in this matter, she was employed as an activities director at an assisted living facility, Altera Wynwood. On May 4, 2000, Respondent and another person presented an educational program on occupational therapy, physical therapy, and speech and massage therapy for the residents of Altera Wynwood. Incidental to the program, Respondent brought his massage chair and performed massages at the facility. On that day, Respondent performed a chair massage on R.C. R.C. had not known Respondent prior to that day. R.C. advised Respondent that she had been involved in an automobile accident and had injured three discs in her neck. Respondent suggested that she allow him to perform massage therapy on her to alleviate discomfort incidental to the neck injury. On May 15, 2000, R.C. presented herself to Respondent's place of employment for massage therapy. After disrobing, R.C. dressed herself in a hospital gown and towel which was provided. She wore the towel like a diaper. Respondent massaged R.C.'s head and neck and around her breasts. R.C. testified that Respondent "touched her genital area in a very, very subtle manner, almost as if it was an accident." The remainder of the "full body" massage consisted largely of leg stretching. On May 17, 2000, R.C. presented herself for a second massage. On this occasion she found no gown, but was provided a sheet and towel. During this massage, Respondent pulled down the sheet and exposed R.C.'s breasts without her consent. During the massage, Respondent touched R.C.'s breasts, but she was uncertain as to whether the touching was "out of line." Her next massage was on May 19, 2000. She again found only a sheet and towel in which to dress. During this massage, Respondent got up on the massage table and straddled R.C., sitting on her hips and buttocks with his legs on each side of her body. She advised him that the pressure of him sitting on her buttocks was causing her pain in the back, so he got off. At all times she was covered by the sheet and had the towel between her legs. Respondent did not advise her that he was going to straddle her nor did he have her permission to do so. On her fourth and final visit, she dressed herself in the sheet that was provided, but left her underpants on because she was having a menstrual period. After massaging R.C.'s upper body, Respondent turned her over on her stomach. He then got up on the massage table, straddling R.C., and pulled her underwear back. He then unzipped the zipper of his trousers and placed his penis between R.C.'s buttocks. Respondent was leaning up against R.C. and pumping against her. She advised Respondent that he was hurting her and, as a result, he got off. He then told her to lie on her side and face the wall; he then got up on the massage table beside her and with his full body began pushing up against her from behind. She was afraid she was going to be raped and was afraid to say anything. Respondent remained behind R.C. for a short period of time and then left. R.C. went to the bathroom and washed herself but did not discover any semen on herself. She then left, seeking to avoid Respondent. R.C. believed that she had been sexually assaulted and filed a report with an appropriate law enforcement agency. R.C.'s testimony in this matter was clear, consistent, and credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health, Board of Massage Therapy, finding that Mehdi Safdari violated Rule 64B7-26.010(1) and (3), Florida Administrative Code, Section 480.0485, Florida Statutes, and Subsection 455.624(1)(u), Florida Statutes (1999), as alleged in the Administrative Complaint issued on August 8, 2001; it is further RECOMMENDED that the Department of Health, Board of Massage Therapy, suspend Mehdi Safdari's license to practice massage therapy for a period of three (3) years, during which time he must present himself for examination and/or treatment by a psychiatrist licensed to practice medicine in the State of Florida, who, upon conclusion of his examination and/or treatment, shall opine to the Board of Massage Therapy that Respondent is not a threat to his patients as a prerequisite to Respondent returning to the practice of massage therapy; impose an administrative fine against Respondent of $3,000; and assess against Respondent the costs of investigating and prosecuting this case. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 31st day of May, 2002. COPIES FURNISHED: Scott L. Richardson, Esquire 126 East Jefferson Street Orlando, Florida 32801 Ruby Seymour-Barr, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 39 Tallahassee, Florida 32308 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent violated Sections 480.46(1)(h),(k), Florida Statutes, and Rule 64B7-30.001(1)(d) (formerly 61G11- 30.001(1)(d), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Health, Board of Massage Therapy (Department), is the state agency charged with regulating the practice of massage therapy pursuant to Chapter 480, Florida Statutes. Respondent, Morton Wexler (Wexler), is and has been at all times material to this proceeding a licensed massage therapist in the State of Florida, having been issued license number MA 0021664. In November, 1996, Wexler began working at Beauty Dynamics as a massage therapist. Wexler is 71 years old and has been blind since approximately 1990 due to glaucoma; however he can make out shapes and forms. On or about, January 10, 1997, C. C. went to Beauty Dynamics to receive a massage. Wexler was assigned to perform the massage on C. C. Wexler massaged the back of C. C.'s legs and arms and C. C.'s back. He asked C. C. to turn and lie on her back. A towel covered C. C.'s body from her shoulders to her feet. Wexler began to massage the back of her neck. C. C. told Wexler that she had a knot in her neck area and asked him to work on the knot. Instead of working on the knot, Wexler slipped his hands under the towel, down C. C.'s chest and touched her breasts. C. C. told him not to do that. Wexler again put his hands on and around C. C.'s breasts, pinched her nipples, and moaned. At that juncture, C. C. pulled the towel up and told him to get out of the room. Wexler did not leave at that time. He apologized and said that he did not know what came over him. He said, "I couldn't help myself. I stopped being a massage therapist and became a man." Wexler still did not leave the room, but started to massage C. C.'s feet. C. C. got face to face with him and told him to get out. Wexler went to his employer, Darlene Heckelmoser Sanders, and told her not to charge C. C. for the massage because there had been a misunderstanding. He did not fully explain the situation at that time. C. C. was not charged for the massage. After C. C. left Beauty Dynamics, Wexler told Ms. Sanders that he had touched C. C.'s breasts. He explained that the towel fell off, exposing C. C.'s breasts and that he could not help himself. He told her, "I guess I became a man instead of a massage therapist." Later in the day, C. C. called Ms. Sanders and told Ms. Sanders that Wexler had touched her breasts, squeezed her nipples and moaned. Ms. Sanders terminated Wexler's employment with Beauty Dynamics. At the final hearing, Wexler acknowledged that it was not appropriate for a massage therapist to touch the erectile tissue of a client, including the client's nipples.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Morton Wexler guilty of violating Sections 480.046(1)(h), (k), Florida Statutes, and Rule 64B7-30.001(1)(d), Florida Administrative Code, and suspending his massage therapist license for two years. DONE AND ENTERED this 8th day of May, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building COPIES FURNISHED: Joe Baker, Executive Director Board of Massage Therapy Department of Health 1940 North Monroe Street 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1998. Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Craig A. McCarthy, Esquire Agency for Health Care Administration Division of Medical Quality Assurance Post Office Box 14229 Tallahassee, Florida 32319-4229 Morton Wexler, pro se 171 South Hampton Drive Jupiter, Florida 33458
