16-006384PL Department Of Health, Board Of Massage Therapy vs. Murtagh D. Meyler, L.M.T. Status: Closed Recommended Order on Wednesday, February 22, 2017.

Summary: Petitioner proved that Respondent committed sexual misconduct in the practice of massage. Recommend license revocation and $2500 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 16 - 6384PL

MURTAGH D. MEYLER, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On December 14, 2016, Administrative Law Judge Lynne A.

Quimby - Pennock of the Florida Division of Administrative Hearings

(Division) conducted a duly - noticed hearing pursuant to section

120.57(1), Florida Statutes (2016), in Saint Petersburg, Florida.

APPEARA NCES

For Petitioner: John A. Wilson, Esquire

Amy C. Thorn, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahas see, Florida 32399

For Respondent: Murtagh D. Meyler, L.M.T. , pro se

5700 67th Avenue

Pinellas Park, Florida 33781

STATEMENT OF THE ISSUE S

Whether Respondent violated provisions of chapter 480,

Florida Statutes, as al leged in the Administrative Complaint,

and ; if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On August 17, 2016, Petitioner, Department of Health, Board

of Massage Therapy (Petitioner or the Department) , issued a one -

count Administrative Compla int against Respondent, Murtagh D.

Meyler. The complaint alleged that Respondent violated sections

480.046(1)(p) and 480.0485 and Florida Administrative Code Rule

64B7 - 26.010(1), (3) and (4).

Respondent timely filed an Election of Rights form in which

h e requested an administrative hearing pursuant to sections

120.569(2)(a) and 120.57(1). On October 31, 2016, the Department

referred the matter to the Division for assignment of an

administrative law judge. On November 10, 2016, the case was

noticed for hearing to commence December 14, 2016, and it

proceeded as scheduled.

On December 9, 2016, the parties filed a Witness list and

Joint Pre - hearing Stipulation that contained stipulations of fact

which, where relevant, have been incorporated into the Findi ngs

of Fact below.

At the hearing, Joint Exhibit 1 was admitte d into evidence.

PetitionerÓs E xhibits 1 - 4 , 1/ including the deposition testimony of

Jennifer Maso n, a licensed massage therapist (Exhibit 1) , were

admitted into evidence. Petitioner presented the live testimony

of the client, D.W. Respondent testified on his own behalf and

presented the testimony of Shelby Field. 2/ Respondent did not

offer any additional exhibits.

The one - volume Transcript was filed on January 10, 2017. On

January 11, 2017, a Notice of Filing Transcript was issued,

directing the parties to file their post - hearing submissions on

or before 5:00 p.m. on January 20, 2017. On January 18, 2017,

Respondent submitted a letter seeking an extension of time in

which to file a proposed recommended order (PRO). Respondent

stated that he was going to Ðseek out a lawyer.Ñ 3/ Petitioner

objected to the extension, however, on January 19, 2017, the

undersigned issued an Order that granted the parties until

5:00 p.m. on February 17, 2017 , to submit the PROs. Both parties

timely submitted their PROs, and each has been considered in the

rendering of this Recommended Order.

Except as otherwise indicated, citations to the Florida

Statutes or rules of the Florida Administrative Code refer to the

v ersions in effect in May 2016, the time during which the

violation was allegedly committed.

FINDING S OF FACT

Based upon the testimony and documentary evidence presented

at hearing, the demeanor and credibility of the witnesses, and

the entire record of thi s proceeding, the following factual

findings are made:

1. The Department is the state agency charged with the

licensing and regulation of massage therapists pursuant to

section 20.42 and chapters 456 and 480, Florida Statutes.

2. At all times material to the allegations in this

proceeding, Respondent was a licensed massage therapist in the

State of Florida, having been issued license number MA 80938.

During May 2016 Respondent worked at Massage Envy (Ð M.E. Ñ) as a

massage therapist. M.E. is a spa facilit y offering massage

services.

3. D.W. is a 46 - year - old female with significant back

issues. D.W. was in a boating accident as a child, and has had

at least eight back surgeries in attemp ts to alleviate her back

pain.

4. Since 2012, D.W. has had numerous massages to help ease

her back pain. She initially received massages through her

chiropractorÓs massage therapist. The chiropractorÓs massage

therapist was unable to continue, and D.W. started obtaining

massages at M.E.

5. D.W. obtained free massages fr om M.E. when she

participated as a Ðmystery shopperÑ 4/ for M.E. Following that

experience, D.W. became a client of M.E. D.W. usually received

full - body massages on a monthly basis, 5/ except when she had the

back surgeries.

6. On May 27, 2016, D.W. conta cted M.E. requesting a

massage appointment. She was assigned Respondent as her regular

masseuse was unavailable. D.W. arrived for the massage and met

Respondent. The massag e was scheduled for two hours.

7. D.W. and Respondent discussed D.W.Ós back pain .

Respondent left the treatment room to allow D.W. time to

completely disrobe and cover herself with the drape cloth or

sheet. During the first half of the massage, D.W. was face down

while Respondent stretched her out. She was comfortable with

this par t of the massage as she remained fully covered by the

sheet.

8. Approximately half way through the massage, Respondent

briefly left the room, and D.W. turned over to be face up fo r the

remainder of the massage.

9. In the face - up position, Respondent bega n the next phase

of the massage. While he was working on D.W.Ós left leg,

Respondent bumped her vagina. D.W. initially thought the

touching was an accident; however , Respondent kept touching her

clitoris.

10. Respondent then put two to three fingers ins ide D.W.Ós

vagina. D.W. was Ðvery scared,Ñ and initially felt frozen in

fear. After a few minutes Respondent asked if he needed to stop

the massage. After a few seconds, D.W. was able to say , ÐItÓs

making me feel like I have to pee, please stop.Ñ Respo ndent

stopped.

11. Respondent then asked if D.W. wanted to have her hands

or feet massaged as there were a couple of minutes remaining in

her appointment. D.W. did not want RespondentÓs hands touching

her hands; she indicated he could message her feet. Respondent

finished the massage by working on D.W.Ós feet.

12. After the massage ended, D.W. dressed. D.W. went to

the restroom, received a cup of water from Respondent and checked

out at M.E. Ós front desk. D.W. went to the parking lot, called

the M.E. manager, and told the manager what happened.

13. D.W. then went home. D.W. told her husband what had

happened and the two of them returned to M . E. The Largo Police

Department was called and a report was filed.

14. While testifying about this very intim ate type of

contact, D.W.Ós demeanor was distressed. She cried as if it were

painful to recount. D.W. now is unable to use massage therapy to

treat her back pain. Additionally , D.W. has trouble sleeping,

and is unable to have sex because she considers w hat Respondent

did to her was Ðforeplay.Ñ

15. Respondent denied that he engaged in any form of sexual

activity with D.W. Respondent attempted to blame D.W.Ós

allegation as either a Ðcounter - transferenceÑ or ÐtransferenceÑ

event. Respondent postulated th at the counter - transference or

transference is Ðwhere the client imposes a negative feeling or a

negative association upon their therapist after something is

awoken during massage.Ñ Respondent agreed that D.W. had been

getting massages for years, and that she would be accustomed to

the massage experience. Respondent also agreed that there was

nothing special about the massage he gave to D.W. Responde ntÓs

testimony is not credited.

16. Massage therapy training teaches that massage in the

vicinity of the genital area is to be conducted very carefully.

If a massage therapist properly draped a patient consistent with

the requirements of r ule 64B7 - 30.001, it would not be possible to

inadvertently touch a client's genital area.

17. The placement of a massage therapist's finger (or

fingers) into the vagina of a massage client is outside the scope

of the professional practice of massage therapy and is below the

standard of care. There is no therapeutic value to massaging or

penetrating the vagina, and there is no circumstance by which a

massage therapist should touch a clientÓs vagina.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 480.046(4), 120 .569 and

120.57(1), Florida Statutes.

19. The Department is seeking to take disciplinary action

against Respondent's license as a massage therapist. Because

disciplinary proceedings are considered to be penal proceedings,

the Department has the burden to prove the allegations in the

Administrative Complaint by clear and convincing evidence. Dep't

of Banking and Fin. v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

As stated by the Supreme Court of F lorida:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evi dence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

20. Disciplinary provisions must be strictly construed in

favor of the licensee. Elmariah v. Dep't of Prof Ól Reg. , 574

So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep't of Prof Ól Reg. ,

534 So. 782, 784 ( Fla. 1st DCA 1988).

21. The Administrative Complaint charged Respondent with

violating sections 480.046(1) and 480.0485. These statutory

provisions state the following:

480.046 Grounds for disciplinary action by

the board.

(1) The following acts const itute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(p) Violating any provision of this chapter

or chapter 456, or any rules adopted pursuant

thereto.

480.0485 Sexual misconduct in the practice of

m assage therapy. Ï The massage therapist -

patient relationship is founded on mutual

trust. Sexual misconduct in the practice of

massage therapy means violation of the

massage therapist - patient relationship

through which the massage therapist uses that

relat ionship 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.

22. The Administrative Complaint charged that Respondent

violated r ule 64B7 - 26. 010. This rule provides the following:

(1) Sexual activity by any person or persons

in any massage establishment is absolutely

prohibited.

(2) No massage establishment owner shall

engage in or permit any person or persons to

engage in sexual activity in such ownerÓs

massage establishment or use such

establishment to make arrangements to engage

in sexual activity in any other pl ace.

(3) No licensed massage therapist shall use

the therapist - client relationship to engage

in sexual acti vity with any client or to make

arrangements to engage in sexual activity

with any client.

(4) As used in this rule, Ðsexual activityÑ

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 pen etration, orgasm, or

ejaculation has occurred. Nothing herein

shall be interpreted to prohibit a licensed

massage therapist, duly qualified under Rule

64B7 - 31.001, F.A.C, from practicing colonic

irrigation.

23. There is clear and convincing evidence to support the

allegations in the Administrative Complaint.

24. Penalties in a licensure discipline case may not exceed

those in effect at the time a violation was committed. Willner

v. DepÓt of ProfÓl Reg., Bd. of Medicine , 563 So. 2d 805, 806

(Fla. 1st DC A 1990), rev. denied , 576 So. 2d 295 (Fla. 1991).

25. Section 456.079 requires the Board of Massage Therapy

to adopt disciplinary guidelines for specific offenses.

Penalties imposed must be consistent with any disciplinary

guidelines prescribed by rule. See Parrot Heads, Inc. v. Dep't

of Bus. & Prof'l Reg. , 741 So. 2d 1231, 1233 - 34 (Fla. 5th DCA

1999).

26. The Board of Massage Therapy adopted Florida

Administrative Code Rule 64B7 - 30.002(3)(o)2. The rule in effect

in May 2016 provided that the disciplin e for a violation of the

sexual misconduct prohibition in section 480.0485 should be a

fine of $2,500.00 and revocation of the license.

27. At that time, rule 64B7 - 30.002(4) set forth possible

aggravating and mitigating circumstances. No circumstances we re

shown here that would warrant deviation from the guideline

penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Massage Therapy enter a

final order finding Respondent guilty of viola ting section

480.0485 and r ule 64B7 - 26.010; and imposing a fine of $2,500 and

revoking his license to practice massage therapy.

DONE AND ENTERED this 22nd day of February, 2017 , in

Tallahassee, Leon County, Florida.

S

LYN NE 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

Divisi on of Administrative Hearings

this 22nd day of February , 2017 .

ENDNOTE S

1/ In the Exhibit list, Exhibit 2 has four subparts :

2 - 1 Schedule Editor Print Screen , 2 - 2 6/1/16 Statement ,

2 - 3 Termination Letter , and 2 - 4 DVD. Sub - part 2 - 3, the

Termination Letter, is not attached. Subpart 2 - 4 is Joint

Exhibit 1.

2/ Ms. Field offered no testimony involving direct knowledge of

the specific allegations involving D.W.

3/ No appearance was entered by an attorney; however, Respondent

timely filed his own prop osed recommended order.

4/ No explanation of what a Ðmystery shopperÑ is or does,

although D.W. went through some type of training to become a

mystery shopper.

5/ If her finances permitted, D.W. would get massages more

frequently.

COPIES FURNISHED:

Murtagh D. Meyler, L.M.T.

5700 67th Avenue

Pinellas Park, Florida 33781

John A. Wilson, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Amy C. Thorn, Esquire

Department of Healt h

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Claudia Kemp, JD, Executive Director

Board of Massage Therapy

D epartment of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399 - 3257

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

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.