01-002257PL Department Of Health, Board Of Massage Therapy vs. Miodrag Visacki, Lmt Status: Closed Recommended Order on Tuesday, September 18, 2001.

Summary: Respondent`s actions constitute sexual misconduct, which is prohibited by governing statute and rule, and is outside the scope of massage therapy practice. Recommend revocation of massage therapy license and imposition of $1,000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 01-2257PL

)

MIODRAG VISACKI, LMT, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on August 7, 2001, in Sarasota, Florida, before Carolyn S.

Holifield, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner : Gary. L. Asbell, Esquire

Lori C. Desnick, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Ft. Knox Building 3, Mail Station 39

Tallahassee, Florida 32308

For Respondent : no appearance

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1) and

(3), Florida Administrative Code, by engaging in sexual

misconduct with a massage client, and thereby violated Section

480.046(1(k), Florida Statutes; and, if yes, what penalty should

be imposed on his license to practice massage therapy.

PRELIMINARY STATEMENT

On March 27, 2001, Petitioner, the Department of Health,

Board of Massage Therapy (Department), filed an Administrative

Complaint against Respondent, Miodrag Visacki, alleging that he

committed sexual misconduct by engaging in or attempting to

engage in sexual activity with a massage client. The

Administrative Complaint alleges that by such conduct,

Respondent has violated Section 480.0485, Florida Statutes, and

Rule 64B7-26.010(1) and (3), Florida Administrative Code, and

thereby, violated Section 480.046(1)(k), Florida Statutes.

In the Department's Election of Rights form, Respondent

denied the allegations in the Administrative Complaint and

requested a formal hearing. On that form, Respondent also

indicated that the massage therapy license number referred to in

the Administrative Complaint as being his license number was

incorrect. On May 24, 2001, the Department issued an Amended

Administrative Complaint which was identical to the

Administrative Complaint, except that it corrected Respondent's

license number. The matter was referred to the Division of

Administrative Hearings on June 7, 2001, and this proceeding

followed.

Pursuant to Petitioner's Motion for Official Recognition

filed July 31, 2001, and Petitioner's ore tenus Motion for

Official Recognition made at the hearing, the undersigned took

official recognition of Chapters 20 and 480, Florida Statutes

(2000), Chapter 456, formerly Chapter 455, Florida Statutes

(2000), and Rule Chapter 64B7, Florida Administrative Code.

At hearing, the Department presented the testimony of

Herbert Clifford Anderson, Jr., an investigator with the Agency

for Health Care Administration; Christina Roberts, a lieutenant

detective with the Longboat Key Police Department; Heidi Micale,

an officer with the Longboat Key Police Department; and A. R., a

former massage client of Respondent. The Department offered and

had three exhibits received into evidence. Respondent failed to

appear at hearing, and no testimony or evidence was presented on

his behalf.

A Transcript of the proceeding was filed on

August 17, 2001. The Department timely filed its Proposed

Recommended Order on August 17, 2001. Respondent did not file

any post-hearing proposals.

FINDINGS OF FACT

1. Petitioner, the Department of Health, Board of Massage

Therapy (Department), is the state agency responsible for

regulating the practice of massage therapy in the State of

Florida pursuant to Chapter 480, Florida Statutes.

2. Respondent, Miodrag Visacki (Respondent), was at all

times material hereto, a licensed massage therapist in the State

of Florida, having been issued license number MA23741.

3. A. R. is a female who re sides in Rhode Island. At the

times material to this proceeding, A. R. was 18 years old and

was on vacation with members of her family in Florida. During

this vacation, A. R. and her family were staying in a

condominium unit at the Long Boat Key Resort in Longboat Key,

Florida.

4. While on vacation in Longboat Key, Florida, A. R. and

her aunt decided to obtain massages. They looked at

advertisements for massage therapy in the newspaper, and then

called telephone numbers listed in several different

advertisements. After calling several of the telephone numbers,

A. R. and her aunt decided to order massage services from one of

the advertisements. On April 21, 2000, A. R.'s aunt called the

number listed in one of the advertisements to set up

appointments for April 22, 2000.

5. On April 22, 2000, Respondent went to the condominium

unit in which A. R. and her aunt and parents were staying to

perform the massages. When Respondent arrived there, he

identified himself as Michael.

6. Prior to beginning the massages, Respondent requested

that A. R. and her aunt fill out client intake forms that

elicited information about the purpose or the reason for the

massage, the "areas requiring specific attention," and the

"areas preferred not to be worked on."

7. On the client intake form, A. R. indicated that she

wanted a relaxation massage. With regard to areas requiring

special attention, A. R. noted, "legs, neck, and back." A. R.

indicated that the areas she preferred not to be worked on were

her face and head.

8. Respondent set his table up in the living room of the

condominium unit and began the massage of A. R. When Respondent

began the massage, A. R.'s aunt was in the kitchen, which was

adjacent to the living room. Soon after Respondent began with

the massage of A. R., her aunt left the kitchen and went to a

bedroom in the condominium unit.

9. At the beginning of her massage, A. R. was wearing a

bra and her underwear, was lying on her back, and was covered by

a sheet.

10. Approximately 15 minutes after the massage began and

after A. R.'s aunt left the kitchen and went to one of the

bedrooms, Respondent pulled down A. R.'s bra and proceeded to

massage her breasts and nipples. Respondent then asked A. R. if

she enjoyed his massaging her breast and nipples to which she

responded "no."

11. After A. R. told Respondent that she did not want him

to massage her breasts and nipples, he began massaging her

ankles, working his way up her legs, vagina, and stomach.

12. Respondent removed A. R.'s underwear during the

massage although he never asked for her permission to do so and

she never consented to his doing so.

13. In an attempt to stop Respondent from massaging her

vagina, A. R. turned over on her stomach. While A. R. was

laying on her stomach, Respondent penetrated A. R.'s vagina and

anus with his finger while alternately massaging her back,

shoulders, and buttocks.

14. During A. R.'s massage, two sheets were used to cover

her. Throughout the massage, A. R. was covered from the waist

up by one of the sheets. However, Respondent continually moved

or adjusted the sheet that was to cover A. R. from the waist

down so that it was "half on, half off."

15. At no time prior to or during the massage did A. R.

give her consent to Respondent to remove the sheet draping her

body so as to expose her buttocks and genitalia.

16. When Respondent finished the massage of A. R., she

spoke to her aunt briefly and indicated that something was

wrong, but she did not reveal the full details of what had

occurred during the massage.

17. Respondent then proceeded to massage A. R.'s aunt.

While her aunt was receiving her massage, A. R. went to the

bathroom, washed up, changed, and waited for Respondent to

finish her aunt's massage.

18. A. R. was in "total confusion" and after Respondent

completed her aunt's massage, A. R. urged her to pay Respondent

so he could leave the condominium.

19. After Respondent left the condominium, A. R. divulged

to her aunt some, but not all, of the details of what had

occurred during the massage.

20. A. R. and her aunt then left the condominium and went

to the nearby beach area where A. R.'s parents were and informed

them about what had occurred during the massage.

21. A. R.'s mother immediately called the Longboat Key

Police Department and police officers were dispatched to the

condominium that day.

22. When Officer Heidi Blake Micale arrived at the

condominium, A. R. confided in and reported to her the conduct

engaged in by Respondent during the massage.

23. As part of its investigation of the April 22, 2000,

incident, the Longboat Key Police Department contacted

Respondent and scheduled an interview with him. On April 24,

2000, Lieutenant Detective Christina Roberts interviewed

Respondent regarding the incident. During the interview,

Respondent admitted to massaging A. R.'s breasts, including the

nipple area. As justification, in explaining his actions,

Respondent indicated that he massaged A. R.'s breasts because

they were not listed on the intake form as one of the "areas

preferred not to be worked on." As evidence of this, Respondent

provided Lieutenant Detective Roberts with a copy of the intake

form that A. R. had completed prior to the massage.

24. Prior to her encounter with Respondent, and while in

Rhode Island, A. R. had received numerous massages for sports

related injuries and she continues to receive such massages.

However, A. R. has never encountered sexual conduct by any

massage therapist other than Respondent.

25. Respondent's actions with regard to massaging

A. R.'s breasts and/or nipples may or were likely to cause

erotic arousal. Furthermore, this conduct by Respondent

constitutes sexual activity and is outside the scope of the

practice of massage.

26. Respondent's actions of penetrating A. R.'s vagina and

anus may or were likely to cause erotic arousal. This conduct

by Respondent constitutes sexual activity and is outside the

scope of the practice of massage.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter and of the parties to this

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

28. Section 480.046(2), Florida Statutes, empowers the

Board of Massage Therapy to revoke, suspend, or otherwise

discipline the license of a massage therapist who is found

guilty of any one of the acts enumerated in Section 480.046(1),

Florida Statutes.

29. The Amended Administrative Complaint in this case

alleges the Respondent violated Section 480.046(1)(k), Florida

Statutes, by engaging or attempting to engage a massage client

in sexual activity in violation of Section 480.0485, Florida

Statutes, and Rule 64B7-26.010(1) and (3), Florida

Administrative Code.

30. Subsection 480.046(1)(k), Florida Statutes, provides

the following:

(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:

(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.

31. Section 480.0485, Florida Statutes, which prohibits

sexual misconduct in the practice of massage therapy, provides

the following:

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 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 the scope of generally

accepted examination or treatment of the

patient. Sexual misconduct in the practice

of massage therapy is prohibited.

32. Section 64B7-26.010(1) ,(3),(4), Florida Administrative

Code, provides in pertinent part:

(1 ) Sexual activity by any person or

persons in any massage establishment is

absolutely prohibited.

* * *

(3 ) No licensed massage therapist shall

use the therapist-client relationship to

engage in sexual activity with any client or

to make arrangements to engage in sexual

activity with any client.

(4 ) As used in this rule, "sexual

activity" 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.

33. "Establishment" is defined at Section 480.033(7),

Florida Statutes, as "a site or premises, or portion thereof,

wherein a massage therapist practices massage."

34. In a license disciplinary proceeding such as this, the

Department has the burden of proof. To prevail in this

proceeding, the Department must establish by clear and

convincing evidence that Respondent committed the acts alleged

in the Amended Administrative Complaint. Ferris v. Turlington ,

510 So. 2d 392 (Fla. 1987). In this case, the Department has

met its burden of proof.

35. The clear and convincing evidence established that

Respondent violated Subsection 480.046(1)(k), Florida Statutes,

Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1) and

(3), Florida Administrative Code, by engaging in sexual activity

within the meaning of Rule 64B7-26.010(4), Florida

Administrative Code. Here, the evidence established that while

massaging A. R., Respondent massaged her nipples and penetrated

her vagina and anus with his finger. This physical contact,

engaged in by Respondent, was intended to erotically stimulate

either the client and/or himself or was likely to cause such

stimulation.

36. Respondent used the client/patient therapist

relationship to engage in and attempt to engage the client in

sexual activity. The physical contact engaged in by Respondent

constitutes sexual misconduct and is expressly prohibited by

Section 480.0485, Florida Statutes, and Rule 64B7-26.010(1),

Florida Administrative Code. This conduct is also outside the

scope of massage therapy practice.

37. Rule 64B7-30.002(1) ,(2),(3), and (4), Florida

Administrative Code, authorizes disciplinary action including a

fine of $1,000.00 and revocation of Respondent's massage

therapist license for a violation of Section 480.0485, Florida

Statutes.

38. Section 456.072(4), Florida Statutes (2000), formerly

455.624(3), Florida Statutes (1999), authorizes the Board of

Massage Therapy to assess the costs of the investigation and

prosecution against Respondent should the Board find Respondent

guilty of violating a provision of Chapter 480, Florida

Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Health, Board of Massage

Therapy enter a Final Order finding Respondent guilty of

violating Subsection 480.046(1)(k), Florida Statutes, Section

480.0485, Florida Statutes, and Rule 64B7-26.010(1) and (3),

Florida Administrative Code; imposing a $1000.00 fine against

Respondent; and revoking Respondent's license to practice

massage therapy.

DONE AND ENTERED this 18th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of September, 2001.

COPIES FURNISHED:

Miodrag Visacki

454 North Jefferson Avenue

Sarasota, Florida 34237

Gary L. Asbell, Esquire

Lori C. Desnick, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Ft. Knox Building 3, Mail Station 39

Tallahassee, Florida 32308

William H. Buckhalt, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way

Bin C06

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

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.