04-001686 Department Of Health, Board Of Massage Therapy vs. Longwood Massage &Amp; Tanning Studio Status: Closed Recommended Order on Thursday, December 30, 2004.

Summary: Massage establishment employed an unlicensed therapist and allowed sexual activity between the therapist and clients.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1686

)

LONGWOOD MASSAGE & )

TANNING STUDIO, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on October 6, 2004, in Orlando, Florida, before Susan B.

Harrell, 1/ a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petiti oner: Brian J. Stabley, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Thomas D. Sommerville, Esquire

Muller & Sommerville, P.A.

1150 Louisiana Avenue, Suite 2

Post office Box 2128

Winter Park, Florida 32790 - 2128

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 480 .046(1)(e),

480.046(1)(o), and 480.047(1)(c), Florida Statutes (2001),

and Florida Administrative Code Rules 64B7 - 26.010(1) and

64B7 - 26.010(2), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On February 5, 2004, Petitioner, D epartment of Health

(Department), issued a three - count Administrative Complaint

against Respondent, Longwood Massage & Tanning Studio

(Longwood), alleging that Longwood violated Subsections

480.046(1)(o) and 480.047(1)(c), Florida Statutes (2001), by

emplo ying unlicensed persons to practice massage at Longwood's

establishment; violated Subsection 480.046(1)(e), Florida

Statutes (2001), by aiding, assisting, procuring, or advising

unlicensed persons to practice massage contrary to the

provisions of Chapter 4 80, Florida Statutes (2001), or the

rules of the Department or the Board of Massage Therapy; and

violated Subsection 480.046(1)(o), Florida Statutes (2001), by

violating Florida Administrative Code Rules 64B7 - 26.010(1) and

64B7 - 26.010(2), which prohibits s exual activity by any person in

a massage establishment and prohibits the owner of a massage

establishment from engaging in or permitting persons to engage

in sexual activity in the massage establishment or from using

the massage establishment to make arra ngements for sexual

activity in another place.

Longwood requested an administrative hearing, and the case

was transmitted to the Division of Administrative Hearings on

May 11, 2004.

The case was set for final hearing on July 20, 2004, and

was continued to September 10, 2004, at the request of

Respondent. The September 10, 2004, hearing was rescheduled due

to inclement weather.

At the final hearing, Petitioner called the following

witnesses: David Tunno, Ronald Tunno, Maria Graffius, Shannon

McWhorter Tall on, Jennifer Wilcox, Dan Moran, Jason Bender, and

William Christensen. Petitioner's Exhibits 1 and 3 through 6

were admitted in evidence. Respondent called Lea Pierre as its

witness. Respondent did not submit any exhibits.

At the final hearing the part ies agreed to file their

proposed recommended orders within ten days of the filing of the

transcript. The two - volume Transcript was filed on November 5,

2004. On November 10, 2004, the parties filed a Joint

Stipulation for Extension of Time to file their proposed

recommended orders. The parties timely filed their Proposed

Recommended Orders, which have been considered in rendering this

Recommended Order.

FINDINGS OF FACT

1. Longwood is, and at all times material to this

proceeding, a licensed massage es tablishment in the State of

Florida, having been issued License No. MM 007785. The

establishment is located at 420 East State Road 434, Suite E,

Longwood, Florida.

2. David Tunno is the owner of Longwood. He applied for

Longwood's massage establishmen t license and is responsible for

ensuring that Longwood complies with the statutes and rules

governing massage establishments in Florida.

3. David Tunno's father, Ron Tunno, visits Longwood to

assist David Tunno in some of the massage establishment's

busi ness activities. Although Ron Tunno is not an employee of

Longwood, he performs such duties as answering the telephones,

signing receipts, placing advertising orders and providing

advice to David Tunno regarding some business decisions.

4. Longwood emp loyed Maria Graffius to provide massage

therapy for approximately two years. At the time of her

employment with Longwood, Ms. Graffius was a Florida - licensed

massage therapist.

5. While Ms. Graffius was employed at Longwood, she

engaged in sexual activit ies with some of Longwood's clients.

She masturbated some of the clients and performed oral sex on

some of the clients. In exchange for her sexual favors, clients

would tip her with cash or food.

6. Ron Tunno told Ms. Graffius not to be shy with the

cli ents. She took his remark to mean that she should have sex

with clients if they requested it. During the same

conversation, Ron Tunno told her to flush down the toilet any

condoms that she used at Longwood. Ms. Graffius supplied her

own condoms and kept them in the glove compartment of her car.

7. Ms. Graffius was not certain whether David Tunno knew

that she was engaging in sexual activities with Longwood's

clients. David Tunno never told her to perform sexual acts on

the clients.

8. Sharon Tallon, f ormerly known as Sharon McWhorter,

answered a help - wanted advertisement from Longwood, stating

"Friendly faces wanted for local massage studio." On May 21,

2002, Ms. Tallon called Longwood and spoke to Ron Tunno, who

asked her to meet him for a private in terview. Ron Tunno took

Ms. Tallon and her friend to a small, hourly motel, where he

asked Ms. Tallon to give him a massage. Ms. Tallon gave him a

massage, and he told her that some of the customers may want her

to perform sexual acts, such as oral sex o r masturbation. She

told him that she did not have a problem with that, and he asked

her to perform oral sex on him so that he could tell if she was

good at what she did. Ms. Tallon complied with his request.

9. Apparently Ms. Tallon met Ron Tunno's sta ndards because

he hired her to work at Longwood. She went to work at Longwood

on the same day as her private interview. Ms. Tallon did not

have a license to practice massage therapy.

10. When Ms. Tallon got to Longwood, Ron Tunno introduced

her to David Tunno and showed her around the establishment. Ron

Tunno showed her how to prepare a room for the client. He

advised Ms. Tallon that she must supply her own condoms and that

she must flush used condoms down the toilet.

11. Ms. Tallon worked at Longwood for two days, during

which time she performed oral sex on four clients. She was paid

$220 in cash by Longwood for her services. She also gave one

massage which did not involve sexual activity.

12. Not only did Ms. Tallon engage in sexual acts with

clie nts, but she also engaged in sexual acts with David Tunno

and Ron Tunno while working at Longwood. Ms. Tallon gave David

Tunno a massage, he requested that she perform oral sex on him,

and she complied. On her second day of employment at Longwood,

Ms. Ta llon had intercourse with Ron Tallon at Longwood.

13. Ms. Tallon contacted the Longwood Police Department

and advised them of her activities at Longwood. She was advised

that she would be given immunity for her acts, and she assisted

the police by making a controlled telephone call to Ron Tunno

and by wearing a wire transmitter while talking to Ron Tunno at

Longwood.

14. On February 21, 2003, the Seminole County Sheriff's

Office, having obtained a search warrant, raided Longwood. In

one of the massage r ooms, the sheriff's officers found Jennifer

Wilcox and a client. The evidence did not establish that Ms.

Wilcox was actually giving a massage or that she had given a

massage to the client. Ms. Wilcox was not a licensed massage

therapist at the time. Ms. Wilcox was enrolled in school,

training to be a massage therapist. She claimed that she was at

Longwood to study and not to give massages. The sheriff's

officers did not find any study materials on the premises. In

another massage room, the sheriff's o fficers found Ms. Graffius

with a client.

15. In one of the rooms, the sheriff's officers found a

small round pillow with a zippered opening in the back. Inside

the pillow were two condoms. The officers also observed a

substance on some of the towels and a sheet. The substance

resembled semen, but no evidence was presented to establish that

the substance was semen.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

procee ding. §§ 120.569 and 120.57, Fla. Stat. (2004).

17. The Department has alleged in the Administrative

Complaint that Respondent violated Subsections 480.046(1)(e)

and (o), Florida Statutes (2001), which provide:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(e) Aiding, assisting, procuring, or

advising any unlicensed person to practice

massage contrary to the provisions of this

chapter or to a rule of the department or

the board.

* * *

(o) Violating any provision of this chapter

or chapter 456, or any rules adopted

pursuant thereto.

18. The Department alleged that Respondent violated

Subsection 480.046(1)(o), Florida Statutes (2001), by violating

Florida Administrative Code Rules 64B7 - 26.010(1) and (2), which

provide:

(1) Sexual activity by any person or

persons in any massage establishment is

absolutely prohibited.

(2) No massage establishment owner shall

engage in or permit any person or persons to

engage in sexual activity in such owner's

massage establishment or use such

establishment to make arrangements to engage

in sexual activity in any place.

19. The Department also alleged that Respondent violated

Subsection 480.047(1)(c), Florida Statutes (2001), which

pro vides:

(1) It is unlawful for any person to:

* * *

(c) permit an employed person to practice

massage unless duly licensed as provided

herein.

20. The Department has the burden to establish the

allegations by clear and convincing evidence. Department of

Banking and Finance v. Osborne Stern and Company , 670 So. 2d 932

(1996).

21. The Department has established by clear and convincing

evidence that Respondent violated Subsection 480.047(1)(c),

Florida Statutes (2001), by hiring Shannon Tallon, a person

unlicensed to practice massage, to give massages at Longwood and

by allowing Ms. Tallon to perform massages at Longwood.

22. The Department has established by clear and convincing

evidence that Respondent violated Subsection 480.046(1)(e),

Florida Statut es (2001), by aiding, assisting, or procuring Ms.

Tallon to practice massage while unlicensed and to perform

sexual acts with clients.

23. The Department has established by clear and

convincing evidence that there was sexual activity between some

of Longw ood's therapists and clients and, thus, has established

a violation of Subsection 480.046(1)(o), Florida Statutes

(2001), by a violation of Florida Administrative Code Rule

64B7 - 26.010(1).

24. The Department has established by clear and convincing

evidenc e that Respondent violated Subsection 480.046(1)(o),

Florida Statutes (2001), by violating Florida Administrative

Code Rule 64B7 - 26.010(2). It is clear that David Tunno, who had

a sexual relationship with Ms. Tallon at Longwood, was aware

that Ms. Tallon was engaging in sexual activity at Longwood.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Longwood Massage & Tanning Studio violated Subsections

480.046(1)(e) , 480.046(1)(o), and 480.047(1)(c), Florida

Statutes (2001), and Florida Administrative Code Rules

64B7 - 26.010(1) and (2), and revoking Longwood Massage & Tanning

Studio's massage establishment license.

DONE AND ENTERED this 30th day of December, 2004, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 96 75

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of December, 2004.

ENDNOTE

1/ At the time of the final hearing Administrative Law Judge

Susan B. Harrell was named Susan B. K irkland.

COPIES FURNISHED :

Brian J. Stabley, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Thomas D. Sommerville, Esquire

Muller & Sommerville, P.A.

1150 Louisiana Avenue, Suite 2

Post Office Box 2128

Wi nter Park, Florida 32790 - 2128

Pamela King, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, BIN C06

Tallahassee, Florida 32399 - 1701

Quincy Page, Acting General Counsel

Department of Health

4052 Bald Cypress Way, B IN A02

Tallahassee, Florida 32399 - 1701

R.S. Power, Agency 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 exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.