97-005331 Board Of Massage vs. Morton Wexler Status: Closed Recommended Order on Friday, May 8, 1998.

Summary: Respondent inappropriately touched client's breast during massage. Two years suspension.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 97-5331

)

MORTON WEXLER, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

on March 5, 1998, by video teleconference and on March 13, 1997,

by telephonic conference, at West Palm Beach, before Susan B.

Kirkland, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Craig A. McCarthy, Esquire

Agency for Health Care Administration

Division of Medical Quality Assurance

Post Office Box 14229

Tallahassee, Florida 32319-4229

For Respondent: Morton Wexler, pro se

171 South Hampton Drive

Jupiter, Florida 33458

STATEMENT OF 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.

PRELIMINARY STATEMENT

On September 15, 1997, the Agency for Health Care

Administration filed an Administrative Complaint against

Respondent, Morton Wexler (Wexler), alleging that he violated

Sections 480.46(1)(h), (k), Florida Statutes, and Rule

61G11-30.001(1)(d), Florida Administrative Code, by

inappropriately touching a client's breasts. Wexler requested an

administrative hearing, and the case was forwarded to the

Division of Administrative Hearings for assignment to an

administrative law judge.

The final hearing was commenced on March 5, 1998, by video

teleconference and was reconvened by telephonic conference on

March 13, 1998. At the final hearing, Petitioner, Department of

Health, Board of Massage Therapy (Department), called C. C.,

Paul Price, and Darlene Heckelmoser Sanders. Petitioner's

Exhibits 1, 2, 6, and 7 were admitted in evidence. Respondent

testified in his own behalf. Respondent's Exhibit 1 was admitted

in evidence.

The parties stipulated to the facts contained in paragraphs

1-4 and 7 of the Administrative Complaint.

At the final hearing, the parties agreed to file proposed

recommended orders within ten days of the filing of the

transcript. The transcript was filed on March 27, 1998. On

April 5, 1998, Respondent filed a request for extension of time

to file proposed recommended orders. The request was granted,

and the time for filing proposed recommended orders was extended

to May 4, 1998. The parties timely filed their proposed

recommended orders. The parties' Proposed Recommended Orders

were considered by the undersigned Administrative Law Judge in

rendering this Recommended Order.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. On or about, January 10, 1997, C. C. went to Beauty

Dynamics to receive a massage.

5. 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.

6. 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.

7. 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.

8. 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."

9. Later in the day, C. C. called Ms. Sanders and told Ms.

Sanders that Wexler had touched her breasts, squeezed her nipples

and moaned.

10. Ms. Sanders terminated Wexler's employment with Beauty

Dynamics.

11. 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.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

13. The Department has the burden to establish by clear and

convincing evidence that Wexler is guilty of the alleged

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

14. The Department has alleged that Wexler violated

Sections 480.046(1)(h), (k), Florida Statutes, which provide:

(1) 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:

* * *

(h) Gross or repeated malpractice or the

failure to practice massage with that level

of care, skill, and treatment which is

recognized by a reasonably prudent massage

therapist as being acceptable under similar

conditions and circumstances.

* * *

(k) Violating any provision of this chapter,

a rule of the board or department, 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.

15. The Department has also alleged that Wexler violated

Rule 61G11-30.001(1)(d) (now 64B7-30.001(1)(d)), Florida

Administrative Code, which provides:

(1) The following acts shall constitute

misconduct in the practice of massage for

which the disciplinary penalties contained in

Sections 455.227 and 480.046, Florida

Statutes, may be imposed:

* * *

(d) Engaging or attempting or offering to

engage a client in sexual activity, including

any genital contact, within a client-massage

therapist relationship. A client shall be

presumed to be incapable of giving a free,

full and informed consent to sexual activity

with his or her massage therapist.

16. The Department has proved by clear and convincing

evidence that Wexler attempted to engage C.C. in sexual activity

by touching her breasts and nipples in a sexual manner without

her consent. Wexler is guilty of violating Sections

480.046(1)(h) and (k), Florida Statutes, and Rule 64B7-

30.001(1)(d), Florida Administrative Code.

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

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of May, 1998.

COPIES FURNISHED:

Joe Baker, Executive Director

Board of Massage Therapy

Department of Health

1940 North Monroe Street

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

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.