02-000280PL Department Of Health, Board Of Massage Therapy vs. Mehdi Safdari, L.M.T. Status: Closed Recommended Order on Friday, May 31, 2002.

Summary: Massage therapist guilty of sexual misconduct with a client/patient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0280PL

)

MEHDI SAFDARI, L.M.T., )

)

Respondent. )

)

RECOMM ENDED ORDER

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

before Jeff B. Clark, an Administrative Law Judge of the

Division of Administrative Hearings, in Orlando, Florida, on

March 15, 2002.

APPEARANCES

For Petitioner: Ruby Seymour - Barr, E squire

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Mail Station 39

Tallahassee, Florida 32308

For Respondent: Scott L. Richardson, Esquire

126 East Jefferson Street

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Mehdi

Safdari, L.M.T., committed the offenses alleged in the

Administrative Complaint issued August 8, 2001, and, if so, to

what extent should his license be disciplined or should he be

otherwise penalized.

PRELIMINARY STATEMENT

On August 8, 2001, Petitioner, the Department of Health,

Board of Massage Therapy, issued an Administrative Complaint

a lleging that Respondent had violated Chapters 455 and 480,

Florida Statutes, and seeking to discipline his license or

otherwise penalize him for said violations. On August 31, 2001,

Respondent filed an Election of Rights denying all allegations

of the Adm inistrative Complaint and requesting a formal

administrative hearing.

By letter dated January 16, 2002, the Agency for Health

Care Administration filed the Administrative Complaint and the

Election of Rights with the Division of Administrative Hearings

and requested the assignment of an Administrative Law Judge to

conduct a formal administrative proceeding. On January 17,

2002, an Initial Order was sent to the parties.

Based on the response of the parties to the Initial Order,

the case was scheduled for fi nal hearing on March 15, 2002.

Petitioner's Motion for Continuance based on the lack of

availability of a witness was denied. Petitioner was given the

option of taking the witness' deposition after the final

hearing; Petitioner later elected not to take the deposition.

At the final hearing Petitioner presented the testimony of

Sarene Willingham, a licensed massage therapist, and R.C., the

complaining witness. No exhibits were received in evidence at

the final hearing, but Petitioner requested leave to submit

Respondent's "licensing package" after the hearing. The

"licensing package" was filed with the Clerk of the Division of

Administrative Hearings on May 24, 2002, and is admitted into

evidence as Petitioner's Exhibit 1. No testimony was presented

o n behalf of Respondent.

A Transcript of the hearing was filed on April 4, 2002.

Proposed Recommended Orders were timely submitted by both

parties and were fully considered in entering this Recommended

Order.

FINDINGS OF FACT

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

Therapy (hereinafter referred to as the "Board") is the state

agency charged with the authority and duty to regulate the

practice of massage therapy in the State of Florida. Pursuant

to Subsection 20.43(3)(g), Florida Statutes , the Department of

Health has contracted with the Agency for Health Care

Administration to provide consumer complaint, investigative, and

prosecutorial services required by the Board, as appropriate.

2. Respondent, Mehdi Safdari, was a licensed massage

t herapist in the State of Florida at all times material to the

allegations in the Administrative Complaint. Respondent's

license number is MA 11488. He was originally certified on

January 14, 1991; his current license will expire on August 31,

2003.

3. T he complainant, R.C., a 44 - year - old female who has an

associate's degree in social services from Hesston College in

Hesston, Kansas, is a certified activities director. At all

times material to the allegations in this matter, she was

employed as an activi ties director at an assisted living

facility, Altera Wynwood.

4. On May 4, 2000, Respondent and another person presented

an educational program on occupational therapy, physical

therapy, and speech and massage therapy for the residents of

Altera Wynwood. Incidental to the program, Respondent brought

his massage chair and performed massages at the facility. On

that day, Respondent performed a chair massage on R.C. R.C. had

not known Respondent prior to that day.

5. R.C. advised Respondent that she had b een involved in

an automobile accident and had injured three discs in her neck.

Respondent suggested that she allow him to perform massage

therapy on her to alleviate discomfort incidental to the neck

injury.

6. On May 15, 2000, R.C. presented herself to Respondent's

place of employment for massage therapy. After disrobing, R.C.

dressed herself in a hospital gown and towel which was provided.

She wore the towel like a diaper. Respondent massaged R.C.'s

head and neck and around her breasts. R.C. testif ied that

Respondent "touched her genital area in a very, very subtle

manner, almost as if it was an accident." The remainder of the

"full body" massage consisted largely of leg stretching.

7. On May 17, 2000, R.C. presented herself for a second

massage. On this occasion she found no gown, but was provided a

sheet and towel. During this massage, Respondent pulled down

the sheet and exposed R.C.'s breasts without her consent.

During the massage, Respondent touched R.C.'s breasts, but she

was uncertain as to whether the touching was "out of line."

8. Her next massage was on May 19, 2000. She again found

only a sheet and towel in which to dress. During this massage,

Respondent got up on the massage table and straddled R.C.,

sitting on her hips and buttoc ks with his legs on each side of

her body. She advised him that the pressure of him sitting on

her buttocks was causing her pain in the back, so he got off.

At all times she was covered by the sheet and had the towel

between her legs. Respondent did not advise her that he was

going to straddle her nor did he have her permission to do so.

9. On her fourth and final visit, she dressed herself in

the sheet that was provided, but left her underpants on because

she was having a menstrual period. After massa ging R.C.'s upper

body, Respondent turned her over on her stomach. He then got up

on the massage table, straddling R.C., and pulled her underwear

back. He then unzipped the zipper of his trousers and placed

his penis between R.C.'s buttocks. Respondent was leaning up

against R.C. and pumping against her. She advised Respondent

that he was hurting her and, as a result, he got off. He then

told her to lie on her side and face the wall; he then got up on

the massage table beside her and with his full body began

pushing up against her from behind. She was afraid she was

going to be raped and was afraid to say anything.

10. Respondent remained behind R.C. for a short period of

time and then left. R.C. went to the bathroom and washed

herself but did not di scover any semen on herself. She then

left, seeking to avoid Respondent.

11. R.C. believed that she had been sexually assaulted and

filed a report with an appropriate law enforcement agency.

12. R.C.'s testimony in this matter was clear, consistent,

and credible.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction of the parties to, and the subject matter of, this

proceeding. Section 120.57, Florida Statutes.

14. The burden of proof, absent a statutory directive to

the co ntrary, is on the party asserting the affirmative of the

issue in the proceeding. Department of Banking and Finance v.

Osborne Stern and Company , 670. So. 2d 932, 934 (Fla. 1996);

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981); and Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

15. License revocation, suspension and discipline

proceedings are penal in nature. Therefore, Petitioner must

demonstrate the truthful ness of the allegations in the

Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern and Company ,

670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

16. As noted by the Supreme Court of Florida:

[C]lear 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 explicit and

the witnesses mus t be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in 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: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting

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

17. As mentioned in paragraph 15, supra , if determined to

be guilty of the violations as alleged, Respondent may suffer a

suspension or revocatio n of his license. Statutes that

authorize the imposition of penal sanctions must be strictly

construed and any ambiguity must be construed in favor of

Respondent. Elmariah v. Department of Professional Regulation ,

574 So. 2d 164, 165 (Fla. 1st DCA 1990). The Florida lenity

statute, Subsection 775.021(1), Florida Statutes, provides that:

"offenses" defined by any Florida Statute must be construed most

favorably to the offender if the language is susceptible to

different meanings. Pasquale v. Florida Ele ctions Commission ,

759 So. 2d 23, 26 (Fla. 4th DCA 2000).

18. Petitioner has alleged that Respondent violated the

following:

COUNT I

Section 480.046(1)(k), Florida Statutes, which states, as

follows:

Grounds for disciplinary action by the

board. – -

(1 ) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in section 456.072(2):

* * *

(k) Violating a lawful order of the board

or department previously entered in a

disciplinary hearing, or failin g to comply

with a lawfully issued subpoena of the

department,

by violating Rule 64B7 - 26.010(1), Florida Administrative Code,

which states, as follows:

Sexual Activity Prohibited.

(1) Sexual activity by any person or

persons in any massage establish ment is

absolutely prohibited.

* * *

(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. As used

herein, sexual activity can involve the use

of any device or object and is not dependent

on whether penetration, orgasm, or

ejaculation has occurred. Nothing herein

shall be interpreted to prohibit a licensed

massage therapist, duly qualified under Rule

6 4B7 - 31.001, from practicing colonic

irrigation.

COUNT II

Section 480.046(1)(k), Florida Statutes, states, as

follows:

Grounds for disciplinary action by the

board. – -

(1) The following acts constitute grounds

for denial of a license or disciplinary

a ction, as specified in section 456.072(2):

* * *

(k) Violating 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,

by violating Sectio n 480.0485, Florida Statutes, which states,

as follows:

Sexual misconduct in the practice of

massage therapy. – - 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 o r

the scope of generally accepted examination

or treatment of the patient. Sexual

misconduct in the practice of massage

therapy is prohibited,

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

states, as follows:

(3) No licensed massage the rapist 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 cont act 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 th is

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 penetration, orgasm, or

ejaculation has occurred. Nothing herein

shall be interpreted to prohibit a licensed

massage therapist, duly qualified under Rule

64B7 - 31.001, from practicing colonic

irrigation.

COUNT III

Subsection 455.624(1)(u), Florida Statutes (1999), states,

as follows:

Grou nds for discipline; penalties;

enforcement. --

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(u) Engaging or attempting to engage a

patient or client in ver bal or physical

sexual activity. For the purposes of this

section, a patient or client shall be

presumed to be incapable of giving free,

full, and informed consent to verbal or

physical sexual activity.

19. Counts I and II each contain a scrivener' s error when

addressing the subparagraph of Subsection 480.046(1), Florida

Statutes, which states the grounds for disciplinary action.

20. Subsection 480.046(1)(k), Florida Statutes (1999),

provides the following ground for taking disciplinary action

ag ainst a massage therapist:

(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.

21. It appears that the drafter of the Administrative

Complaint citing Subsection 480.046(1)(k), Florida Statutes,

failed to include "(1999)" which would have been appropriate

given the date of the alleged violations. This is harml ess

error and Respondent has not suffered as a result. This is a

"notice pleading" forum. Respondent is clearly given adequate

notice of the substantive violations he is charged with by the

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

Code, and Section 480.0485, Florida Statutes, all of which

address sexual misconduct.

22. While reasonable minds may question some of

Respondent's conduct during the first three massage sessions,

nothing violating the cited Florida Administrative Cod e Rules or

Florida Statutes was proved by clear and convincing evidence.

23. During the fourth massage session, when Respondent

climbed onto the massage table, straddled R.C., and placed his

penis between her buttocks while thrusting himself against her,

Respondent's conduct clearly and convincingly violated Rule

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

480.0485, Florida Statutes, and Subsection 455.624(1)(u),

Florida Statutes (1999), as his conduct clearly and convincingly

constit utes a "sexual activity" as defined in the rule, and was

an attempt by Respondent to use the massage therapist - patient

relationship to attempt to engage in sexual activity with R.C.

24. Subsection 480.046(2), Florida Statutes (1999),

states, as follo ws:

(2) When the board finds any person

guilty of any grounds set forth in

subsection (1), it may enter an order

imposing one or more of the following

penalties:

(a) Refusal to license an applicant.

(b) Revocation or suspension of a

license.

(c) Issuance of a reprimand or censure.

(d) Imposition of an administrative fine

not to exceed $1000 for each count or

separate offense.

25. Subsection 455.624(2), Florida Statutes (1999),

states, as follows:

(2) When the board, or the depa rtment when

there is no board, finds any person guilty of

the grounds set forth in subsection (1) or of

any grounds set forth in the applicable

practice act, including conduct constituting a

substantial violation of subsection (1) or a

violation of the app licable practice act which

occurred prior to obtaining a license, it may

enter an order imposing one or more of the

following penalties:

(a) Refusal to certify, or to certify with

restrictions, an application for a license.

(b) Suspension or per manent revocation of a

license.

(c) Restriction of practice.

(d) Imposition of an administrative fine

not to exceed $10,000 for each count or

separate offense.

(e) Issuance of a reprimand.

(f) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board, or the department

when there is no board, may specify. Those

conditions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend continuing education

courses, su bmit to be reexamined, work under

the supervision of another licensee, or

satisfy any terms which are reasonably

tailored to the violations found.

(g) Corrective action.

(h) Imposition of an administrative fine in

accordance with s. 381.0261 for violations

regarding patient rights.

In determining what action is appropriate,

the board, or department when there is no

board, must first consider what sanctions are

necessary to protect the public or to

compensate the patient. Only after those

sanctions have been imposed may the

disciplining authority consider and inc lude in

the order requirements designed to

rehabilitate the practitioner. All costs

associated with compliance with orders issued

under this subsection are the obligation of

the practitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Health, Board of Massage Therapy, finding that Mehdi Safdari

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

Code, Section 480.0485, Florida Statutes, and Subsection

455.624(1)(u), Florida Statutes (1999), as alleged in the

Administrative Complaint issued on August 8, 2001; it is further

RECOMMENDED that the Department of Health, Board of Massage

Therapy, suspend Mehdi Safdari's license to practice mass age

therapy for a period of three (3) years, during which time he

must present himself for examination and/or treatment by a

psychiatrist licensed to practice medicine in the State of

Florida, who, upon conclusion of his examination and/or

treatment, shall opine to the Board of Massage Therapy that

Respondent is not a threat to his patients as a prerequisite to

Respondent returning to the practice of massage therapy; impose

an administrative fine against Respondent of $3,000; and assess

against Respondent t he costs of investigating and prosecuting

this case.

DONE AND ENTERED this 31st day of May, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of May, 2002.

COPIES FURN ISHED :

Scott L. Richardson, Esquire

126 East Jefferson Street

Orlando, Florida 32801

Ruby Seymour - Barr, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Mail Station 39

Tallahassee, Florida 32308

William W. Large, General Cou nsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

William H. Buckhalt, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399 - 1701

R. S. Power, A gency Clerk

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 ex ceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.