98-000989 Board Of Massage vs. Keith Richard Goldsmith Status: Closed Recommended Order on Monday, July 20, 1998.

Summary: Massage therapist failed to get his establishment re-licensed when he moved to a different site, and failed to unpack his fire extinguisher after the move. Fine of $350.00 recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MASSAGE, )

)

Petitioner, )

)

vs. ) Case No. 98-0989

)

KEITH RICHARD GOLDSMITH, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, Mary Clark, held

a formal hearing in the above-styled case on June 11, 1998. The

hearing was conducted by videoconference with the Administrative

Law Judge presiding from Tallahassee, Florida. Counsel for the

Petitioner participated from Tallahassee; the Respondent, witness

for Petitioner, and court reporter participated from

Orlando, Florida.

APPEARANCES

For Petitioner: Joseph S. Garwood, Esquire

Agency for Health Care Administration

1580 Waldo Palmer Lane

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Keith Richard Goldsmith, pro se

265 Stoner Road

Winter Springs, Florida 32708

STATEMENT OF THE ISSUES

An administrative complaint dated January 5, 1998, charges

that Respondent violated rules governing the practice of massage

by failing to have a current establishment license and failing to

have a fire extinquisher on the premises maintained in good

working condition.

The issues for resolution are whether those violations

occurred and, if so, what discipline is appropriate.

PRELIMINARY STATEMENT

Respondent disputed the allegations of the administrative

complaint and requested a formal evidentiary hearing. After the

agency referred the case to the Division of Administrative

Hearings, it was assigned and the hearing was set as described

above.

At the hearing Petitioner presented the testimony of its

investigator, Dawn Witte, and admitted a single exhibit

(a composite containing the licensing file) into evidence,

without objection.

Respondent testified in his own behalf and also admitted,

without objection, a single exhibit comprised of an application

and a temporary authorization.

Several days after the hearing the court reporter informed

the parties and the administrative law judge that she had lost

her tape recording of the proceedings. In a telephone conference

convened on June 16, 1998, the parties agreed to allow the matter

to proceed without a transcript. The material facts are

uncontroverted.

On June 17, 1998, Petitioner filed its Proposed Recommended

Order. Although Respondent mentioned that he had faxed some

post-hearing written material, including a "poem," those

documents were never received by the administrative law judge.

FINDINGS OF FACT

1. Respondent, Keith Richard Goldsmith, is now and has been

at all relevant times a massage therapist licensed by the State

of Florida with license no. 0011202.

2. In 1996, Respondent's massage establishment, Bio-Spirit

Bodywork Therapy, was licensed and located at 1089 Choke Cherry

Road in Winter Springs, Seminole County, Florida. The property

was sold and Respondent had to relocate in a move which he

describes as "chaotic."

3. At some point during or after the move Respondent sent

his facility transfer fee to the Board of Massage. He apparently

sent a letter, but not the proper application form.

4. On July 31, 1997, after obtaining Respondent's phone

number from telephone information and calling to get an

appointment, investigators Dawn Witte and J. C. Russell conducted

an inspection of Respondent's facility now located at 265 Stoner

Road in Winter Springs, Florida. The inspection determined that

all requirements were met, except for the following:

a) No current establishment

license;

b) No establishment license

displayed; and

c) No fire extinquisher maintained

on the premises.

5. At the time of the inspection Respondent had not

obtained the license for the new facility and did not display the

license for the prior facility. His fire extinquisher was still

packed away somewhere.

6. In a follow-up visit from the inspectors, Respondent

declined the option to accept a disciplinary citation and $250

fine for the violations.

7. Respondent subsequently formally applied for, and was

granted a temporary establishment license for the Stoner Road

facility.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

in this proceeding pursuant to Sections 120.57(1), Florida

Statutes; and 455.225, Florida Statutes.

9. Section 480.046(1)(k), Florida Statutes, provides that

disciplinary action may be taken against a massage therapist or

massage establishment for violating a rule of the Board of

Massage Therapy or Department of Health.

10. Rule 63B7-26.003, Florida Administrative Code, requires

that each massage establishment must maintain a fire extinquisher

in good working order. Rule 64B7-28.008, Florida Administrative

Code, requires that an establishment owner conspicuously display

a current establishment license on the premises.

11. The agency plainly proved that the alleged violations

occurred. Moreover, Respondent concedes that he did not have the

license displayed for his new facility or the fire extinquisher

unpacked and ready.

12. Rule 64B7-30.002, Florida Administrative Code, provides

disciplinary guidelines for the Board of Massage Therapy. For

violations of Section 480.046(1)(k), Florida Statutes, the rule

recommends a penalty of "$250 fine to probation." Although there

are two violations alleged and proven, the mitigating factors

described in Rule 64B7-30.002(3), Florida Administrative Code,

suggest some lessor penalty than the $500 fine.

RECOMMENDATION

Based on the foregoing it is hereby recommended that the

Board of Massage Therapy enter its final order finding that

Respondent committed two violations of Section 480.046(1)(k),

Florida Statutes, and assessing a fine of $350.

DONE AND ENTERED this 20th day of July, 1998, in

Tallahassee. Leon County, Florida.

___________________________________

MARY CLARK

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 20th day of July, 1998.

COPIES FURNISHED:

Joseph S. Garwood, Esquire

Agency for Health Care Administration

1580 Waldo Palmer Lane

Post Office Box 14229

Tallahassee, Florida 32317-4229

Keith Richard Goldsmith

265 Stoner Road

Winter Springs, Florida 32708

Joe Baker, Executive Director

Board of Massage Therapy

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Linda Goodgame, General Counsel

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-4092

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.