00-002442 Department Of Health, Board Of Massage Therapy vs. Hae Suk Bornholdt Status: Closed Recommended Order on Wednesday, August 16, 2000.

Summary: Respondent violated the prohibition against sexual contact during massage. The act took place before Respondent`s license was issued.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 00-2442

)

HAE SUK BORNHOLDT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, in West Palm Beach,

Florida, on July 5, 2000.

APPEARANCES

For Petitioner: Dennis G. King, Esquire

R udolph C. Campbell, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building 3, Mail Stop 39

Tallahassee, Florida 32308

For Respondent: Lawrence K. Fagan, Esquire

LaValle, Brown, Ronan & Soff

750 South Dixie Highway

Boca R aton, Florida 33432

STATEMENT OF 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.

PRELIMINARY STATEMENT

On or about April 28, 2000, an Emergency Suspension Order

was filed against Respondent. On or about May 16, 2000,

Petitioner, the Department of Health, Board of Massage Therapy,

issued an Administrative Complaint alleging that Respondent had

violated Chapters 456 and 480, Florida Statutes, and seeking to

impose punishment upon her for said violations. On June 12,

2000, Respondent filed a Response to Administrative Complaint

denying the allegations of the Administrative Complaint and

requesting a formal administrative hearing. On June 12, 2000,

an Amended Administrative Complaint was issued by Petitioner.

By letter filed June 13, 2000, the Agency for Health Care

Administration filed the Administrative Complaint, the Response

thereto, and the Amended Administrative Complaint with the

Division of Administrative Hearings. The matter was designated

Case No. 00-2442 and was initially assigned to Administrative

Law Judge Michael Parrish. The case was subsequently

transferred to the undersigned.

Official recognition of the rules and statutes which govern

the practice of massage therapy in the State of Florida was

taken.

At the formal hearing Petitioner presented the testimony of

Robert F. Flechus, a detective with the Boca Raton Police

Department, and Angela Richardson, custodian of records for the

Board of Massage Therapy. Petitioner offered 5 exhibits.

Petitioner's Exhibits numbered 1 through 4 were accepted into

evidence. Petitioner's Exhibit 5 was not offered. Respondent

testified on her own behalf. Respondent offered no exhibits.

A Transcript of the hearing was filed on July 31, 2000.

Proposed orders were, therefore, required to be served on or

before August 10, 2000. On August 10, 2000, Petitioner filed

Petitioner's Proposed Recommended Order. No post-hearing

submittal has been filed by Respondent. Petitioner's Proposed

Recommended Order has fully considered in entering this

Recommended Order.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. 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.

5. 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."

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

CONCLUSIONS OF LAW

A. Jurisdiction .

11. The Division of Administrative Hearings has

jurisdiction of the parties to, and the subject matter of, this

proceeding. Section 120.57, Florida Statutes (1999).

B. The Burden and Standard of Proof .

12. The Board had the burden of proving the allegation of

the Amended Administrative Complaint by clear and convincing

evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

C. Ms. Bornholdt's Violations of Chapter 480, Florida

Statutes, and Rules 64B7-26.010(1), (3), and (4) and

64B7-30.001(5), Florida Administrative Code .

13. Although the acts which Ms. Bornholdt committed were

conducted before the effective date of her licensure by the

Board, Section 455.624(2), Florida Statutes, authorizes the

Board to take action against Respondent:

(2) When the board . . . finds any person

guilty . . . of the grounds set forth in the

applicable practice act, including conduct

constituting a . . . violation of the

applicable practice act which occurred prior

to obtaining a license, it may enter an

order imposing one or more of the following

penalties:

. . . .

(b) Suspension or permanent revocation of

a license.

(c) Restriction of practice

(d) Imposition of an administrative fine

not to exceed $5,000 for each count or

separate offense.

(e) Issuance of a reprimand.

(f) Placement of the license on

probation for a period of time and subject

to such conditions as the board . . . may

specify. . . .

(g) Corrective action.

14. Chapter 480, Florida Statutes, is the practice act

applicable to massage therapists. The Amended Administrative

Complaint issued by the Board alleges violations of Chapter 480,

Florida Statutes, in two counts. In Count I, it is alleged that

Ms. Bornholdt's actions on December 2, 1999, were in violation

of Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1),

(3), and (4), Florida Administrative Code, thereby violating

Section 480.046(1)(k), Florida Statutes. In Count II, it is

alleged that Ms. Bornholdt's actions on December 2, 1999,

violated Rule 64B7-30.001(5), Florida Administrative Code, and

thereby violated Section 480.046(1)(k), Florida Statutes.

15. Section 480.046(k), Florida Statutes, provides the

following ground for taking disciplinary action against a

massage therapist:

(k) Violating any provision of this

chapter, a rule of the board or department, or

a lawful order of the board or department

previously entered in a disciplinary hearing,

or failing to comply with a lawfully issued

subpoena of the department.

The particular provisions of Chapter 480, Florida Statutes, and

the Board's rules, which Ms. Bornholdt has been charged with

violating, include Section 480.0485, Florida Statutes, Rule

64B7-26.010, Florida Administrative Code, and Rule 64B7-30.001,

Florida Administrative Code.

16. Section 480.0485, Florida Statutes, provides the

following prohibition concerning sexual misconduct in the

practice of massage therapy:

The massage therapist-patient relationship

is founded on mutual trust. Sexual

misconduct in the practice of massage

therapy means violation of the massage-

therapist relationship through which the

massage therapist uses that relationship to

induce or attempt to induce the patient to

engage, or to engage or attempt to engage

the patient, in sexual activity outside the

scope of practice or the scope of generally

accepted examination or treatment of the

patient. Sexual misconduct in the practice

of massage therapy is prohibited.

17. The evidence in this case proved that Ms. Bornholdt

violated Section 480.0485, Florida Statutes. Her violation of

Section 480.0485, Florida Statutes, constitutes a violation of

Section 480.046(1)(k), Florida Statutes.

18. Rule 64B7-26.010, Florida Administrative Code,

provides, in pertinent part, the following:

(1) Sexual activity by any person or

person in any massage establishment is

absolutely prohibited.

. . . .

(3) No licensed massage therapist shall

use the therapist-client relationship to

engage in sexual activity with any client or

to make arrangements to engage in sexual

activity with any person.

(4) As used in this rule, "sexual

activity" means any direct or indirect

physical contact by any person or between

persons which is intended to erotically

stimulate either person or both or which is

likely to cause such stimulation and

includes sexual intercourse, fellatio,

cunnilingus, masturbation, or anal

intercourse. For purposes of this

subsection, masturbation means the

manipulation of any body tissue with the

intent to cause sexual arousal. As used

herein, sexual activity can involve the use

of any device or object and is not dependent

on whether penetration, orgasm, or

ejaculation has occurred. . . .

19. The evidence in this case proved that Ms. Bornholdt

violated these provisions when she told Detective Flechus to

masturbate, when she placed his hand on his penis, and when she

touched his penis and attempted to stroke him. Her violation of

Rule 64B7-26.010(1), (3), and (4), Florida Administrative Code,

constitutes a violation of Section 480.046(1)(k), Florida

Statutes.

20. Rule 64B7-30.001(5), Florida Administrative Code,

provides the following:

The following acts shall constitute the

failure to practice massage therapy with

that level of care, skill, and treatment

which is recognized by a reasonably prudent

similar massage therapist as being

acceptable under similar conditions and

circumstances:

. . . .

(5) Failure to appropriately drape a

client. Appropriate draping of a client

shall include draping of the buttocks and

genitalia of all clients, and breasts of

female clients, unless the client gives

specific informed consent to be undraped.

21. Ms. Bornholdt violated this rule when she went into

the shower with Detective Flechus and when she failed to

properly drape him during the massage on December 2, 1999. Her

violation of Rule 64B7-30.001(5), Florida Administrative Code,

constitutes a violation of Section 480.046(1)(k), Florida

Statutes.

22. In addition to the Board's authority to take

disciplinary action against Ms. Bornholdt, Section 455.624(3),

Florida Statutes, authorizes the Board to "assess costs related

to the investigation and prosecution of the case" in addition to

any discipline imposed.

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) 48 8-9675 SUNCOM 278-9675

Fax Filing [phone]

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.