99-003719 Department Of Health, Board Of Massage Therapy vs. Stanley Michael Carroll, M.A. Status: Closed Recommended Order on Tuesday, October 10, 2000.

Summary: Respondent disciplined after being convicted of simple battery on a massage therapy client.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 99-3719

)

STANLEY MICHAEL CARROLL, M.A., )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

A formal hearing was held in this case on August 18, 2000,

by video teleconference between Tallahassee, Florida, and

Jacksonville, Florida, before the Division of Administrative

Hearings, by its designated Administrative Law Judge, Suzanne F.

Hood.

APPEARANCES

For Petitioner: Gary L. Asbell, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Mail Stop 39

Tallahassee, Florida 32308

For Respondent: Stanley Michael Carroll, pro se

1535 San Juan Avenue

Jacksonville, Florida 32210

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Section

480.046(1)(c), Florida Statutes, and if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

On M ay 24, 1999, Petitioner Department of Health

(Petitioner) issued an Amended Administrative Complaint against

Respondent Stanley Michael Carroll, M.A. (Respondent). Said

complaint alleged that Respondent had violated Section

480.046(1)(c), Florida Statutes. Respondent requested a formal

hearing to contest the allegations contained in the complaint on

July 1, 1999. Petitioner referred this case to the Division of

Administrative Hearings on September 1, 1999.

The Division of Administrative Hearings issued an Initial

Order on September 8, 1999. The parties filed a Joint Response

to Initial Order on September 20, 1999.

The undersigned issued a Notice of Hearing dated

September 22, 1999, scheduling the case for hearing on

November 15, 1999.

On Novembe r 3, 1999, counsel for Respondent filed a Notice

of Appearance of Counsel.

On November 9, 1999, Petitioner filed a Motion for Order

Compelling an Amended Answer to Petitioner's Request for

Admissions or Alternatively for an Order Deeming the Matter

Admitted. The next day, Petitioner's counsel filed a Motion to

Place in Abeyance and Temporarily Relinquish Jurisdiction,

stating that the parties had reached a proposed settlement

agreement of this matter and requesting abeyance until

Petitioner could meet to consider the proposed settlement

stipulation. The undersigned issued an Order Granting

Continuance and Placing Case in Abeyance on November 12, 1999.

On January 31, 2000, Petitioner filed a request to continue

the case until March 1, 2000, to provide the parties an

opportunity to consider a second proposed settlement agreement.

The undersigned granted this request by order dated February 1,

2000.

On March 1, 2000, Petitioner's counsel filed a Status

Report, requesting further continuance until Petitioner could

meet to consider the second proposed settlement. The

undersigned granted this request by order dated March 2, 2000.

On May 5, 2000, Petitioner filed a Status Report, stating

that the parties had been unable to reach a settlement agreement

and requesting that the case be rescheduled for formal hearing.

On May 22, 2000, the undersigned issued a Notice of Hearing by

Video Teleconference, scheduling the case for hearing on

August 18, 2000.

On July 7, 2000, Respondent's counsel filed a Motion to

Withdraw. The undersigned granted this motion by order dated

July 10, 2000.

At the hearing, Petitioner presented no witnesses but

offered four exhibits, which were accepted into evidence.

Respondent testified on his own behalf and offered three

exhibits, two of which were accepted into evidence.

Respondent's Exhibit 2, containing the results of Respondent's

lie detector test on May 5, 1999, was not admitted into

evidence.

The court reporter filed a Transcript of the proceeding on

September 5, 2000. Petitioner filed a Proposed Recommended

Order on September 8, 2000. Respondent did not file a post-

hearing proposed recommended order.

FINDINGS OF FACT

1. Petitioner is the agency charged with the duty to

regulate the practice of massage therapy in Florida.

2. At all time relevant to this proceeding, Respondent was

licensed to practice massage therapy, holding license No.

MA0020209.

3. In September 1997, Respondent provided massage therapy

treatment on three occasions to a client, M.J. The treatment

was intended to be therapeutic for injuries suffered by M.J. in

an automobile accident.

4. The last of the massage therapy sessions occurred on

September 19, 1997, at the home of M.J.'s mother.

5. M.J. subsequently filed a formal complaint with the

Duval County Sheriff's Office. The complaint alleged that

Respondent touched M.J.'s breast and nipple inappropriately

during the September 19, 1997, massage therapy session. On

November 24, 1997, the State Attorney, in and for Duval County,

Florida, filed an Information, charging Respondent with

misdemeanor battery in violation of Section 784.03(1)(a),

Florida Statutes.

6. In a jury trial on April 15, 1998, Duval County Court

Case No. 97-66371 MM, Respondent was convicted of simple

battery, a criminal violation of Section 784.03(1)(a), Florida

Statutes.

7. The above-referenced criminal conviction arose directly

out of Respondent's massage therapy session with M.J. on

September 19, 1997. Respondent would not have been charged with

and convicted of simple battery but for Respondent's massage

therapy practice on M.J.

8. Respondent had to pay a $200 fine and $115 in court

costs as a result of his criminal conviction.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

10. Petitioner has the burden of proving by clear and

convincing evidence that Respondent violated Section

480.046(1)(c), Florida Statutes. Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987).

11. Section 455.624(3), Florida Statutes, provides as

follows in pertinent part:

(3) 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 excluding costs associated with

an attorney's time. . . .

12. Section 480.033(3), Florida Statutes, defines

"massage" as follows:

(3) "Massage" means the manipulation of the

superficial tissues of the human body with

the hand, foot, arm, or elbow, whether or

not such manipulation is aided by

hydrotherapy, including colonic irrigation,

or thermal therapy; any electrical or

mechanical device; or the application to the

human body of a chemical or herbal

preparation.

13. Section 480.046(1), Florida Statutes, provides in

pertinent part:

(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.

* * *

(c) Being convicted or found guilty,

regardless of adjudication, of a crime in

any jurisdiction which directly relates to

the practice of massage or to the ability to

practice massage. Any plea of nolo

contendere shall be considered a conviction

for purposes of this chapter.

14. Section 784.03(1), Florida Statutes, states as

follows:

(1)(a) The offense of battery occurs when a

person:

1. Actually and intentionally touches or

strikes another person against the will of

the other; or

2. Intentionally causes bodily harm to

another person.

(b) Except as provided in subsection (2), a

person who commits battery commits a

misdemeanor of the first degree, punishable

as provided in s. 775.082 or 775.083.

15. In this case, Respondent was convicted of misdemeanor

battery for intentionally touching M.J. against her will. His

conviction would not have occurred but for the massage therapy

session. Petitioner has provided clear and convincing evidence

that Respondent has violated Section 480.046(1)(c), Florida

Statutes.

16. Section 480.046(2), Florida Statutes, authorizes

Petitioner to impose penalties on persons who violate Section

480.046(1), Florida Statutes. Section 480.046(2)(d), Florida

Statutes, specifically authorizes the "[i]mposition of an

administrative fine not to exceed $1,000 for each count or

separate offense."

17. Rule 64B7-30.002(1)(c), Florida Administrative Code,

provides that Petitioner may penalize a person who violates

Section 480.046(1)(c), Florida Statutes, for crimes related to

battery by imposing an administrative fine up to $1,000 and/or

revoking licensure.

RECOMMENDATION

Based on the foregoing Findings o f Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order fining Respondent $500

and assessing costs of investigation and prosecution.

DONE AND ENTERED this 10th day of October, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

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 10th day of October, 2000.

COPIES FURNISHED:

Gary L. Asbell, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Mail Stop 39

Tallahassee, Florida 32308

Stanley Michael Carroll

1535 San Juan Avenue

Jacksonville, Florida 32210

William H. Buckhalt, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

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.