00-003404PL Department Of Health, Board Of Massage Therapy vs. Andrea L. Snyder Status: Closed Recommended Order on Wednesday, January 3, 2001.

Summary: License of massage therapist should be revoked for intentional touching of client`s genitalia for purpose of sexual gratification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 00-3404PL

)

ANDREA L. SNYDER, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case at Fort Lauderdale, Florida, on October 11, 2000, before

Administrative Law Judge Michael M. Parrish of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Gary L. Asbell, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 39

Tallahassee, Florida 32308

For Respondent: Timothy Foster, Esquire

2501 Bristol Drive, Suite B-11

West Palm Beach, Florida 33409

STATEMENT OF 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.

PRELIMINARY STATEMENT

At the final hearing on October 11, 2000, the Petitioner

presented the testimony of three witnesses and offered four

exhibits into evidence. The Petitioner's Exhibits 1 and 2 were

received in evidence. The Petitioner's Exhibit 3 was withdrawn

by Petitioner. Portions of the Petitioner's Exhibit 4 were

received in evidence. 1 The Respondent testified on her own

behalf, but did not call any other witnesses. The Respondent

did not offer any exhibits.

At the conclusion of the hearing, the parties requested,

and were granted, 20 days from the filing of the transcript

within which to file their proposed recommended orders. The

transcript was filed with the Division of Administrative

Hearings on October 30, 2000. Thereafter, both parties filed

timely Proposed Recommended Orders containing proposed findings

of fact and conclusions of law. The parties' proposals have

been carefully considered during the preparation of this

Recommended Order.

By way of introduction to the findings of fact which

follow, it is noted that the undersigned found the testimony of

Detective Steve Drum to be clear, convincing, and persuasive.

Accordingly, conflicts in the evidence have been resolved in a

manner consistent with the version of events described by

Detective Drum.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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 an d 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.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

case. Chapter 120, Florida Statutes.

9. In a case of this nature, the Petitioner bears the

burden of proving all facts upon which it relies by clear and

convincing evidence. The Petitioner has met that burden in this

case.

10. At all times material hereto, Section 480.046(1),

Florida Statutes, provided in pertinent part:

The following acts shall constitute

grounds for which disciplinary actions

specified in subsection (2) may be taken

against a massage therapist or massage

establishment licensed under this act:

* * *

(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.

11. In the Administrative Complaint, the Respondent is

charged with violating Section 480.046(1)(k), Florida Statutes,

by violating Section 480.0485, Florida Statutes, by engaging in

sexual misconduct in the practice of massage therapy. Section

480.0485, Florida Statutes, provides in pertinent part:

Sexual misconduct in the practice of

massage therapy means violation of the

massage therapist-patient 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 of

the scope of generally accepted examination

or treatment of the patient. Sexual

misconduct in the practice of massage

therapy is prohibited.

12. As to Count I of the Administrative Complaint, the

Petitioner has proven by clear and convincing evidence that the

Respondent is guilty as charged. By exposing her breasts,

touching the Detective's penis and attempting to masturbate the

Detective, the Respondent has exceeded the scope of practice for

a massage therapist, and has committed acts of sexual misconduct

in the practice of massage therapy.

13. In Count II of the Administrative Complaint,

Respondent is charged with violating Rule 64B7-30.001(1)(d),

Florida Administrative Code, by engaging or attempting or

offering to engage a client in sexual activity including genital

contact. The allegations of this count have also been proved by

clear and convincing evidence.

14. Rule 64B7-30.002(1)(k)1, Florida Administrative Code

(The Massage Therapy Board's disciplinary guidelines), provides

for revocation of the license and $1,000.00 fine for a violation

of Section 480.0485, Florida Statutes. 2

15. At all times material hereto, Section 455.624(3),

Florida Statutes, provided in pertinent part:

In addition to any other discipline

imposed pursuant to this section or

discipline imposed for a violation of any

practice act, the board, or the department

when there is no board, may assess costs

related to the investigation and prosecution

of the case.

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;

(b) an administrative fine in the amount of $1,000.00; and

(c) 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl. us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of January, 2001.

ENDNOTES

1/ The specific portions of the Petitioner's Exhibit 4 that were

received in evidence are described at pages 39 and 40 of the

transcript of the hearing.

2/ In several similar cases, licenses have been revoked. See

Department of Health, Board of Massage Therapy vs. Hae Suk

Bornholdt , DOAH Case No. 00-2442 (Recommended Order issued

August 16, 2000); Department of Business and Professional

Regulation, Board of Massage vs. Alan Sibley , DOAH Case

No. 97-0309 (Recommended Order issued May 2, 1997); and

Department of Business and Professional Regulation, Board of

Massage vs. Elvira Carmen Purmont and Le Clinique , DOAH Case No.

96-2171 (Recommended Order issued May 21, 1997.

COPIES FURNISHED:

Gary L. Asbell, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 39

Tallahassee, Florida 32308

Timothy Foster, Esquire

2501 Bristol Drive, Suite B-11

West Palm Beach, Florida 33409

William H. Buckhalt, Executive Director

Board of Massage

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

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.