06-004117PL Department Of Health, Board Of Acupuncture vs. Elham Kharabi, A.P. Status: Closed Recommended Order on Monday, July 23, 2007.

Summary: Respondent sexually abused a accupuncture/massage patient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

ACUPUNCTURE, )

)

Petitioner, )

)

vs. ) Case No. 06 - 4 117PL

)

ELHAM KHARABI, A.P., )

)

Respondent. )

_________________________________)

DEPARTMENT OF HEALTH, BOARD OF )

MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 06 - 4491PL

)

ELHAM KHARABI - MOGHADDAM, L.M.T., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these

cases before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on May 21 and 22, 2007, in

Miami, Florida.

APPEARANCES

For Petitioner: Allison M. Dudley

Assistant General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: David M. Shenkman, Esquire

David M. Shenkman, P.A.

2701 South Bayshore Drive, Suite 602

Miami, Florida 33133

STATEMENT OF THE ISSUES

The issues in these case s for determination are whether

Respondent Elham Kharabi, A.P., L.M.T, committed the violations

alleged in two Administrative Complaints issued by the

Department of Health on March 14, 2005 , in DOAH Case No. 06 -

4117 PL , and on November 8, 2006 , in DOAH Case No. 06 - 4491PL ;

and, if so, what disciplinary action should be taken against his

license to practice acupuncture and his license to practice

massage therapy in Florida.

PRELIMINARY STATEMENT

On or about March 14, 2005 , the Department of Health filed

a three - count Administra tive Complaint, Case Number 2004 - 27932 ,

before the Board of Acupuncture against Respondent Elham

Kharabi, A.P. , an individual licensed to practice acupuncture in

Florida. In particular, it is alleged in the Administrative

Complaint that R espondent committed violations of Sections

4 56.072(1)(u), 457.109(1)(j), and 457.109(1)(m), Florida

Statutes (2004 )( a ll references to Florida Statutes and the

Florida Adm inistrative Code are to the 2004 versions, unless

o therwise indicated).

Respondent dis puted the allegations of fact contained in

the Administrative Complaint by Election of Rights form and an

Answer, and requested a formal administrative hearing pursuant

to Sections 120.569(2)(a) and 120.57(1), Florida Statutes

(2006).

On October 20, 2006 , the matter was filed with the Division

of Administrative Hearings with a request that an administrative

law judge be assigned to conduct proceedings pursuant to Section

120.57(1), Florida Statutes (2006). The matter was designated

DOAH Case Number 0 6 - 4117 PL and was assigned to the undersigned.

The final hea ring was scheduled to be held on December 20

and 21, 200 6 , by Notice of H earing entered November 30, 2006 .

On January 26, 2007 , the Department of Health filed an

Administrative Complaint before the Board of Massage, Case

Number 2004 - 27897, against Respondent's license to practice

massage therapy in Florida. In particular, it is alleged in the

Administrative Complaint that Respondent violated Section

480.046(1)(o), Florida Statutes, by having violated Sec tion

480.0485, Florida Statutes.

Respondent disputed the allegations of fact contained in

the Administrative Complaint by Election of Rights form and an

Answer, and requested a formal administrative hearing.

On November 8, 2006, the matter was filed with t he Division

of Administrative Hearings with a request that an administrative

law judge be assigned to conduct proceedings pursuant to Section

120.57(1), Florida Statutes (2006). The matter was designated

DOAH Case Number 06 - 4491PL and was assigned to the undersigned.

The two cases were consolidated by an Order of

Consolidation entered November 27, 2006. The final hearing ,

previously scheduled for December 20 and 21, 2006 , was

rescheduled for February 8 and 9, 2007, by Order Granting

Continuance entered No vember 30, 2006. T he hearing was

subsequently continued two more times.

On January 25, 2007, the parties filed a Joint Stipulation.

Stipulated facts contained therein have been incorporated into

this Recommended Order.

Two motions were filed shortly befo re the final hearing:

Petitioner's Motion in Limine; and Petitioner's Motion for

Official Recognition. Respondent filed Respondent's Motion in

Opposition to Petitioner's Motion in Limine. Both Motions were

considered at t he commencement of the final hea ring and the

attendant rulings are contained in the transcript of that

hearing.

During the final hearing, Petitioner presented the

testimony of patient U.C., William Parente, Luis Yllanes, and

Manuel Rodriguez - Garcia, M.D. Petitioner's Exhibit 1 was

admit ted. Respondent testified on his own behalf and presented

the testimony of Merrysue Haber, Ph.D. Respondent's Exhibits 1

through 4 were admitted. One Joint E xhibit was also admitted.

The two - volume Transcript of the final hearing was filed on

June 5 , 20 07. By Notice of Filing Transcript entered June 7 ,

2007, the parties were informed that th e Transcript had been

filed and that their proposed recommended orders were to be

filed on or by July 25, 2007 (the correct date for filing

proposed recommended orde rs was June 25, 2007). Petitioner

filed Petitioner's Proposed Recommended Order on June 25, 2007.

Respondent filed Proposed Findings of Fact and Conclusions of

Law on June 26 , 2007. The post - hearing proposals of both

parties have been fully considered i n rendering this Recommended

Order.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Health (hereinafter

referred to as the “Department”), is the agency of the State of

Florida charged with the responsibility for the investigation

and p rosecution of complaints involving the practice of

acupuncture and massage therapy in Florida. § 20.43, and Chs.

456, 457 and 480, Fla. Stat.

2. Respondent, Elham Kharabi (identified as Elham Kharabi -

Moghaddam by the Board of Massage Therapy) , A.P., L.M. T, is and

was at all times material to this matter, licensed by the Board

of Acupuncture as an acupuncturist, having been issued license

number 1890 on November 7, 2003, and by the Board of Massage

Therapy as a licensed massage therapist, having been issue d

license number 0013944 on January 29, 1993.

3. Respondent's mailing address of record at all times

relevant to this matter is Post Office Box 451342, Miami,

Florida 33245. Respondent's clinic is located at 2808 Bird

Avenue, Miami, Florida 33133.

4. No evidence that Respondent has previously been the

subject of a license disciplinary proceeding was offered.

B. Respondent’s Treatment of Patient U.C.

5. At the times material to this matter, Respondent

operated as " Miami’s Clinical of Oriental Medicine " (hereinafter

after referred to as the "Clinic") , located in Coconut Grove,

Miami, Florida .

6. U.C. , a single, 34 - year - old mother, visited the Clinic

in June 2004 (hereinafter referred to as "Patient U.C.") .

Patient U.C. visited the Clinic because she was suffering from

depression and fatigue and thought that acupuncture might help

her. On her first visit Patient U.C. spoke briefly with

Respondent and was given a pamphlet. After this first meeting,

Patient U.C. called Respo ndent and made an appointment f or

treatment.

7. Patient U.C.’s first formal appointment with Respondent

was a free consultation which took place on June 29, 2004.

During the consultation visit , Patient U.C. completed a

Comprehensive Acupuncture Examination form, in which she

described her "M ajor C omplai nts " as "depression, fatigue ,

inability to concentrate & focus, lethargy, moody, irritable,

too sensitive & emotional." Respondent's Exhibit 3. Patient

U.C. also indicated on the form that she had experienced the

following "Nuerologica l" problems: " nervousness, depressed,

easily angered, easily irritated, frequent crying,

numbness/tingling in limbs, poor coordination, muscle weakness,

and feel weak and shaky. " She did not, however, mean that she

was suffering from all of these problem s at the time she

competed the form. Rather, she simply listed every symptom she

had ever experienced during her lifetime.

8. After Patient U.C. had completed the Comprehensive

Acupuncture Examination form, Respondent conducted a p atient

i nterview with h er, which he memorialized in a Patient Interview

form. R espondent’s Exhibit 4 . Respondent determined a p lan of

t reatment for Patient U.C. , which he memorialized on t he Patient

Interview form. Respondent's plan of treatment consisted of:

" Tui Na, LR3, L I4, SJ5, GB41, Yin Tang, R17. " Based on

Respondent’s testimony describing these treatments , none

require d touching of Patient U.C.'s anus or vagina. Respondent

completely identified his plan of treatment and there was no

testimony indicating that it was inadequate.

9. After the patient interview, Respondent advised Patient

U.C. that he could treat her " Major Complaints " with Chinese

medicine.

10. Respondent, with Patient U.C.'s agreement, performed a

complete massage (while Patient U.C. and Respondent

c haracterized the treatment differently, the procedure involved

manipulation of Patient U.C.'s body and will be referred to

throughout this Recommended Order as "massage" for ease of

reference) and acupuncture on Patient U.C. after their initial

discussions on June 29, 2004 . Patient U.C. was unclo thed ,

except for her underwear, during the massage. Having

experienced a number of massages by male therapists in the past,

Patient U.C. felt comfortable receiving the massage from

Respondent.

11. On June 30, 200 4, Patient U.C. returned to the Clinic

to pay for her first visit and future planned visits.

12. On July 6, 2004, Patient U.C. presented to the Clinic

for her second appointment . During this visit, she received the

same treatment as she had during the fi rst appointment. While

at the Clinic, Respondent advised Patient U.C. that she needed

treatment on a daily basis and encouraged her to come to the

Clinic daily. Respondent told Patient U.C. , who was concerned

about cost, that she could come in any time a nd that he would

not charge her for her sessions. Patient U.C. declined

Respondent's offer and indicated that she would only come for

her scheduled paid - for weekly appointments .

13. On July 13, 2004, Patient U.C. went to the Clinic for

her third visit, w hich had been paid for in advance. Patient

U.C. complained to Respondent of pain in her jaw and the left

side of her buttock s, radiating down her leg.

14. After rubbing or manipulating Patient U.C.'s jaw,

Patient U.C. removed her clothing, except for her underwear,

while Respondent left the room. When Respondent returned, he

began treatment of Patient U.C.’s left buttock. Respondent

massaged Patient U.C.'s left buttock, moving his oiled hands

rapidly on her buttock while applying heavy pressure. Patien t

U.C., concerned that her underwear was hampering Respondent's

efforts, offered to remove them. Respondent agreed and Patient

U.C. removed her underwear.

15. Respondent recommenced his treatment, massaging

Patient U.C.'s left buttock rapidly and forcefu lly . At some

point, Patient U.C. felt Respondent remove his finger from her

anus. Because Patient U.C. was lying on her stomach at the time

and, therefore, was not able to see exactly what had happened,

she was cautious in her testimony at hearing. The weight of her

testimony, however, proved that, while Patient U.C. was unable

to say that she felt Respondent's finger enter her anus, she was

able to feel him removing his finger from her anus.

16. After realizing that Respondent had inserted his

finger i nto her anus and then removed it, Patient U.C. was

confused and unsure of what to do . Patient U.C. described her

feelings at hearing:

Q. What did you do when you felt that?

A. Nothing. I was shocked. It didn't

make sense to me. How could I feel t his

thing coming out of my butt if I didn't feel

it . . . being inserted? I was confused.

It just didn't make sense and I though you

know it is probably an accident, a mistake

because there is oil and he did massage

vigorously and it was fast, but I did not do

anything.

Transcript, Vol. I, Page 61, Lines 16 - 24.

17. After Respondent completed massaging Patient U.C. , he

placed acupuncture needles in her but tocks and left the room.

Respondent returned a few minutes later and removed the needles.

18. A fter removing the needles, Respondent had Patient

U.C. turn over on her back and he be gan massaging her right

thigh. While massaging Patient U.C.’s t high, he inserted his

finger into her vagina and briefly moved it back and forth

several times . Again, Pa tient U.C. did not respond to

Respondent's inappropriate conduct, instead deciding to avoid

having "to deal with it." Instead, she "just pretended that it

wasn't going on, that it didn’t happen. I just pretended that

it didn't happen." Transcript, Vol. I, Page 65.

19. When Patient U.C. did not respond to this second

unwanted touching, Respondent removed his finger and returned to

appropriate treatment, inserting acupuncture needles in Patient

U.C . Following this treatment, Respondent removed the

acupun cture needles and left the room. Patient U.C. got up from

the treatment table , dressed, and left the clinic without

confronting Respondent about putting his finger in her anus and

her vagina. Patient U.C. did not confront Respondent because

she just want ed to leave the C linic and pretend that Respondent

had not violated her.

C. Events Following Respondent’s July 13, 2004, Treatment

of Patient U.C.

20. Patient U.C. went home immediately after her July 13,

2004 , visit to the Clinic and called William Pare nte, her

boyfriend at the time. She w as unable, however, to tell

Mr. Parente what had happened because he was at lunch with other

people. After talking briefly with Mr. Parente, Patient U.C.

took a shower, ate , and went to work.

21. Later that day, Pati ent U.C. spoke to Mr. Parente and

described the events that had taken place at the Clinic that

day. According to Mr. Parente, Patient U.C. w as very distraught

and, from the sound of her voice , had been crying.

22. During the evening of July 13, 2004, Pat ient U.C.

experienced pain in her anus . The pain had intensified by the

next morning. Therefore, Patient U.C. went to the Health Clinic

at the University of Miami, where she was a second - year law

student. Personnel at the clinic advised patient U.C. to go to

the Jackson Memorial Rape Treatment Center (Jackson).

23. On July 14 , 2004, at approximately 9:00 a.m. , Patient

U.C. presented to Jackson for treatment. Patient U.C.'s vagina

and pelvic area were examined by a physician, who took a

specimen. No la cerations or lesions were found. The specimen

was forward to law enforcement. The physician also examined

Patient U.C.'s anus. During this examination, Patient U.C. felt

an uncomfortable burning pa in in her anus. Because of the pain,

she asked the phys ician to discontinue the examination.

Although the examination of Patient U.C.’s anus was terminated,

a specimen was also obtained from her anus and forward ed to the

police.

24. After completion of the examination at Jackson,

Patient U.C. was referred to the police and to the Journey

Institute for counseling services. Patient U.C. immediately

went to the Miami - Dade Polic e Department to make a report. She

also sought assistance from the Journey Institute.

25. Two days after the incident, Patient U.C. al so

reported the incident to a friend, Luis Yllanes. When

Mr. Yllanes spoke to her, P a tient U.C. was visibly upset. She

trembled when Patient U.C. told Mr. Yllanes the specifics of

what occurred in Respondent’s office.

26. On July 19 , 2004, Patient U.C. called her

psychiatris t, Manuel Rodriguez - Garcia, M.D. Patient U.C. called

to request a prescription for medications because she was

depressed following the incident. Dr. Garcia prescribed

Wellbutrin, an anti - depressant.

D. T he Reliability of Patient U. C.’s Recollection .

27 . Patient U.C. had been sexually abused over

approximately a two - year period by h er uncle when she was 16 to

17 years of age . She was also raped by a neighbor in the

neighbor's house when she was a teenager . When she reported her

un cle's abuse , her family, rather than being supportive, made

her feel as if it was her fault.

28 . In addition to the sexual abuse she suffered , Patient

U.C. was physically and emotionally abused by her brother.

29 . Beginning in 1998, Patient U.C. sought t he medical

assistance of Dr. Garcia, a board - certified psychiatrist .

Dr. Garcia treated Patient U.C. from 1998 through March 22,

2005. ( Having asserted her psychiatrist - patient privilege in

relation to psychiatric records which substantially predate the

allegations made in th ese case s , Dr. Garcia was limited to

relating his treatment of Patient U.C. beginning May 30, 2003 . )

30 . As of May 30, 2003, Patient U.C. was diagnosed as

suffering from attention deficit disorder (hereinafter referred

to as "ADD") a nd depressive disorder with anxiety. Patient U.C.

was not exhibiting any symptoms of psychosis. ADD is a

congenital disorder that makes its sufferer distractible, with

poor concentration. Dr. Garcia prescribed Ritalin to Patient

U.C. to treat her ADD. He also prescribed Lexapro (an anti -

depressant) and Ambien to help Patient U.C. sleep at night.

31 . As of September 29, 2003 , Patient U.C. continued to

suffer from ADD and depressive disorder with anxiety . Patient

U.C. told Dr. Garcia during the Septembe r 29, 2003, visit that

" something is wrong with my brain. " She was concerned because

she had driven into the parking lot of one store when she had

intended to go to another one. Dr. Garcia was not concerned

about this incident or her comment . He found t hat Patient U.C.

was not suffering from any dementia, delirium, confusion,

disassociative states, or organic deficits and that she was

oriented on life's decisions. Finding that Patient U.C. did not

have anything "wrong with her brain ," Dr. Garcia conclud ed that

she was simply having difficulty concentrating, a symptom of her

ADD. Finally, Dr. Garcia found that Patient U.C. was not

exhibiting any signs of psychosis as of September 29, 2003.

32 . Patient U.C. visited D r. Garcia’s office again on

May 7, 200 4. At Patient U.C.’s request, Dr. Garcia wrote her a

prescription for Adderall to replace her prescription for

Ritalin.

33 . Patient U.C. failed to go to her next scheduled

appointment with Dr. Garcia on June 29, 2004. Patient U.C. had

begun to believe t hat she was not getting better , despite the

medications prescribed by Dr. Garcia . Consequently she had

stopped taking those medications (Adderall, R i t alin, and Ambien)

two or three months before the July 13, 2004, incident. Patient

U.C. did not inform Dr . Garcia of her actions.

34 . In addition to suffering from ADD and depressive

disorder with anxiety, and the difficulty of raising a child as

a single mother while attending law school, Patient U.C. was

subjected to a serious of stre ssful events preceding the

July 13, 2004, incident: her mother was diagnosed with a brain

tumor, her father was serious ly ill, her brother was indicted on

criminal charges, and her sister had attempted suicide .

35 . Despite Patient U.C.'s medical problems, Patient U.C.

was not suffering from Post - Traumatic Stress Disorder

(hereinafter referred to as "PTSD") on or before July 13, 2004.

Nor did Patient U.C. misperceive the events of July 13, 2004.

Those events, as found, supra , were accurately recalled and

testified to by Patie nt U.C.

36 . The testimony of Merrysue Haber, Ph.D., suggesting

that Patient U.C. suffered from PTSD, and that she may have

suffered a PTSD event or "flashback" on July 13, 2004 was not

convincing. Dr. Haber's suggestion that Patient U.C. could have

mispe rceived what had actually taken place on July 13, 2004,

because of the sexual abuse she had suffered as a teenager , the

stress that Patient U.C. was experiencing at the time, and the

intensification of her psychological problems when Patient U.C.

stopped t aking her presc ription medications is rejected.

37 . Dr. Haber's testimony is r ejected for a number of

reasons. First, and m ost importantly, her testimony is rejected

because her opinions were inconsistent with those of Dr. Garcia,

who did not diagnose Pa tient U.C. as suffering from PTSD prior

to July 13, 2004. During the period that Dr. Garcia treated

Patient U.C., he never found her to be suffer ing from

hallucinations or bipolar disorder, or to be exhibit ing any

signs of psychosis. At no time was there any interaction

between Dr. Garcia and Patient U.C. that led him to “think that

she could be psychotic, that she could have a delirium or a

problem with perception.\anscript, Vol. II, Page 202, Lines

12 through 16.

38 . Dr. Garcia had personally met w ith Patient U.C. and

diagnosed her condition, while Dr. Haber h as never spoken to

Patient U.C. Having failed to find that Patient U.C. was

suffering from PTSD prior to or on July 13, 2004, any suggestion

by Dr. Haber that Patient U.C. suffered from PTSD o n the

critical date is not credited.

39 . In further support of these findings, it is noted that

Dr. Haber relied, at least in part, on the medical records of

Roger Rousseau, M.D., of the Journey Institute, the institution

Patient U.C. had been referred to by Jackson p ersonnel.

Dr. Rousseau , w h ile diagnosing Patient U.C. with "chronic" PTSD,

did not see Patient U.C. until af ter the events of July 13,

2004. Dr. Haber's reliance on Dr. Rousseau's diagnosis is,

therefore, misplaced.

40 . Dr. Haber's testimon y concerning the possible impact

of Patient U.C.'s d iscontinuation of her medicines prior to

July 13, 2004, is also re jected as inconsistent with

Dr. Garcia 's testimony . Based upon Dr. Garcia's credited

testimony, it is found that Patient U.C.'s discontin uance of

here medications would not have altered Patient U.C.’s

perception of reality . At most, she would merely have

experienced a resurgence of the symptoms of her ADD and

depression , not psychosis . While Patient U.C . c ould have

experienced an increase d difficulty concentrating and her

depression may have worsened , she would not have experienced

withdrawal symptoms associated with discontinuing her

medications and would not have exhibit ed new symptoms like

halluc inations.

41 . Finally, even it h ad been proved that Patient U.C. was

suffering from PTSD on July 13, 2004, the evidence proved that

it is highly unlikely that she would have continued to insist

that events which she supposedly misperceived on July 13, 2004,

actually occurred. PTSD is a conditio n or disorder where a

person may experience a variety of signs and symptom, including

vivid memories of a traumatic event, an inability to function,

anxiety, depr ession, and hypersensitivity (ul tra - sensitivity to

stimuli that remind the person of the traum atic event). Persons

suffering PTSD may suffer some or all of the foregoing symptoms.

42 . Although not common, a person suffering PTSD can

relive the traumatic event; experience a "flashback." Even when

a person experiences a flashback or relives the tr aumatic event,

the feeling of reliving the event does not last and the person

realizes that the event did not actually recur. Dr. Garica gave

the example of a combat soldier's reaction to an automobile

back - firing. The soldier may flinch, but will quickl y realize

there is no real danger.

43 . Patient U.C. nev er reported any flashback relating to

her sexual abuse as a teenager to Dr. Garcia . Having given

birth to a child, she has obv iously had sexual relations; she

has not had any difficulty being undr ess ed while receiving a

massage; and she was not concerned about suggesting to

Respondent that she take off her underwear when she realized her

underwear was hampering his treatment of her on July 13, 2004.

44 . Based upon the foregoing, while it is obvious t hat

Patient U.C. is not without problems, the evidence failed to

prove that she was in any way unable to accurately understand

and subsequently relate the events of July 13, 2004, as found in

this Recommended Order.

E. Respondent's Acupuncture Medical Rec ords .

45 . Having denied that he placed his finger in Patient

U.C.'s anus or vagina, Respondent obviously did not record any

medical justification in his medical record for Patient U.C. for

doing so.

CONCLUSIONS OF LAW

A. Jurisdiction .

46 . The Division o f Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569, 120.57(1) and

4 56.073(5) Florida Statutes (2006 ).

B. The Burden and Standard of Proof .

47 . The Department seeks to impose penalties against

Respondent's licenses to practice acupuncture and massage

therapy the Administrative Complaints that include suspension or

revocation of his licenses and/or the imposition of an

administrative fine. Therefore, the Department h as the burden

of proving the specific allegations of fact that support its

charge that Respondent violated Sections 456.072(1)(u) ,

457.109(1)(j), 457.109(1)(m), and 480.046(1)(o), Florida

Statutes, by clear and convincing evidence.

48 . What constitutes “c lear and convincing” evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence mu st be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence must be precise and

explicit and the witnesses must be lacking

in confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

C . The Charges of the Administrative Complaint in DOAH

Case No. 06 - 4117 (Board of Acupuncture) .

49 . In its Administrative Complaint in DOAH Case No. 06 -

4117 , before the Board of Acupuncture, the Department has

alleged that Respondent : (a) engaged or attempted to engage in

sexual misconduct as defined and prohibited in Section

45 6.063(1), Florida Statutes, in violation of Section

456.072(1)(u), Florida Statutes (Count One); (b) exercised

influence within a patient - acupuncturist relationship for

purposes of engaging a patient in sexual activity in violation

of Section 457.109(1)(j), Florida Statutes (Count Two); (c)

violated Section 457.109(1)(m) Florida Statutes , by failing to

keep written medical records which are consistent with the

practitioner’s style of acupuncture justifying the course of

treatment of the patient (Count Three).

50 . Section 456.072(1) , Florida Statutes , sets out grounds

for discipline of all health professionals , including the

following disciplinable act :

(u) Engaging or attempting to engage in

sexual misconduct as defined and prohibited

in s. 456.063(1).

51 . Section 456.063(1), Fl orida Statutes, defines " sexual

misconduct " as follows :

Sexual misconduct in the practice of a

health care profession means a violation of

the professional relationship through which

the health care practitioner uses such a

relationship to engage or attempt to engage

the patient or client, or an immediate

family member, guardian, or representative

of the patient or client in, or to induce or

attempt to induce such person to engage in,

verbal or physical sexual activit y outside

the scope of the professional practice of

such health care profession. Sexual

misconduct in the practice of a health care

profession is pr ohibited.

52 . Section 457.109(1), Florida Statutes, sets out grounds

for the discipline which specificall y apply to acupuncturists ,

including the following:

(j) exercising influence within a

patient - acupuncturist relationship for

purposes of engaging a patient in sexual

activity. A patient shall be presumed to be

incapable of giving free, full, and inform ed

consent to sexual activity with his or her

acupuncturist.

. . . .

(m) failing to keep written medical

records justifying the course of treatment

of the patient.

D . The Charges of the Administrative Complaint in DOAH

Case No. 06 - 4491PL (Board of Massage Therapy) .

53 . In its Administrative Complaint in DOAH Case No. 06 -

4491PL before the Board of Massage Therapy, the Department

alleged that Respondent violated Section 480.046(1)(o), Florida

Statutes, by violating Section 480.0485, Flor ida Statutes , which

prohibits the use of the massage therapist - patient relationship

to induce or attempt to induce a patient to engage in sexual

activity outside the scope of massage therapy.

54 . Section 4 80.046(1)(o), Florida Statutes , sets out the

following relevan t ground for disciplinary action by the Board

of Massage Therapy: " Violating any provision of this chapter

456, or any rules adopted pursuant thereto. "

55 . Sec tion 480.0485, Florida Statutes, defines and

prohibits sexual misconduct in the practice of mas sage therapy

as:

The massage therapist - relationship is

founded on mutual trust. Sexual misconduct

i n the practice of massage therapy means

violation of the massage therapist - patient

relationship through which the massage

therapist uses that relationship t o 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 pract ice

of massage therapy is prohibited.

E. Factual Basis for the Department's Charges in Both

Cases .

56 . In both cases, the Department has alleged the same

general factual basis for the alleged violations, other than in

Count Three of the Administrative C omplaint in DOAH Case No. 06 -

4117PL. Generally, the Department has alleged that Respondent

committed the al leged statutory violations by committing sexual

misconduct when he inserted his finger into Patient U.C.'s anus

and when he inserted his finger into Patient U.C.'s vagina.

57 . The factual allegation s in support of the allegation

that Respondent had violated Section 457.109(1)(m) , Florida

Statutes, by failing to keep written medical records which are

consistent with the practitioner’s style of acupun cture

justifying the course of treatment of the patient ( Count Three

of the Administrative Complaint in DOAH Case No. 07 - 4117PL ) , are

that Respondent failed to keep any written record that justified

his insertion of his finger into Patient U.C.'s anus or h er

vagina.

F. Ultimate Conclusions .

58 . Ultimately , the s e case s turned almost exclusively on

the credibility of Patient U.C. and Respondent. Largely for the

reasons explained in paragraphs 51 through and including 67 of

Petitioner's Proposed Recommended Order, which are found to be

accurate, the credibility issue has been resolved in favor of

Patient U.C.

59. Having accepted and credited Patient U.C.'s version of

what transpired on July 13, 2004, it is found that the

Department has proved clearly and co nvincingly that Respondent

on that day inserted his finger into Patient U.C.'s anus and her

vagina, and that he moved his finger back and forth while in

Patient U.C.'s vagina. He did so while Patient U.C. was under

his care as an acupuncturist and a massa ge therapist. Finally,

he did so without Patient U.C.'s consent and without medical

reason or justification.

60 . It has, therefore, been proved clearly and

convincingly that Respondent committed the violations alleged in

the Administrative Complaints in both cases:

a. Respondent engaged or attempted to engage in sexual

misconduct as defined and prohibited in Section 456.063(1),

Florida Statutes, with Patient U.C. in violation of Section

456.072(1)(u), Florida Statutes, as alleged in Count One of the

Admi nistrative Complaint in DOAH Case No. 07 - 4117PL;

b. Respondent exercised influence within a patient -

acupuncturist relationship for purposes of engaging Patient U.C.

in sexual activity in violation of Section 457.109(1)(j),

Florida Statutes, as alleged in Count Two of the Administrative

Complaint in DOAH Case No. 07 - 4117PL;

c. Respondent used his massage therapist - patient

relationship to induce or attempt to induce Patient U.C. to

engage in sexual activity outside the scope of practice of

massage therapy o r the scope of generally accepted massage

therapy examination or treatment of Patient U.C. in violation of

Section 480.0485, Florida Statutes, thus violating Section

480.046(1)(o), Florida Statutes, as alleged in the

Administrative Complaint in DOAH Case N o. 07 - 4491PL.

61 . Finally, it is concluded that the Department failed to

prove that Respondent violated Section 457.109(1)(m) Florida

Statutes, by failing to keep written medical records which are

consistent with the practitioner’s style of acupuncture

ju stifying the course of treatment of the patient as alleged in

Count Three of the Administrative Complaint in DOAH Case No. 06 -

4117PL.

62 . It is clear from the “Plan of Treatment” for Patient

U.C. completed by Respondent on the Patient Interview form

(Resp ondent’s Exhibit 4), and his testimony, that he never

intended for the insertion of his finger into patient U.C.’s

anus or vagina to be part of his treatment of Patient U.C.

Respondent did not, therefore, fail to keep written medical

records consistent wi th his style of acupuncture and justifying

his actual course of treatment of the Patient U.C.

G. The Appropriate Penalty .

63 . In determining the appropriate punitive action to

recommend to the Board of Acupuncture and the Board of Massage

Therapy in thes e case s , it is necessary to consult the

“disciplinary guidelines,” of both Boards which impose

restrictions and limitations on the exercise of the disciplinary

authority of the respective Board . See Parrot Heads, Inc. v.

Department of Business and Profess ional Regulation , 741 So. 2d

1231 (Fla. 5 th DCA 1999).

64 . The Board of Acupuncture’s guidelines are set out in

Florida Administrative Code Rule 64B1 - 9.001 (1)(j) , which

provides, in part, the following guideline for "[e] xercising

influence within a patien t - acupuncturist relationship for

purposes of engaging a patient in sexual activity, or engaging

or attempting to engage a patient in verbal or physical sexual

activity" :

. . . . The usual recommended penalty

shall be an administrative fine of up to

$100 0.00 and a six (6) month suspension

immediately followed by a two (2) year

probation with such terms and conditions as

set forth by the Board.

65 . Florida Administrative Code Rule 64BI - 9.001(2)

provides that the Board of Acupuncture may take dis ciplinary

action other than imposing th e penalties contained in the

guidelines , based on consideration of the following factors:

( a) The danger to the public;

(b) The number of repetitions of

offenses, other than an adjudicated offense

for which the licensee is presently being

penalized;

(c) The length of time since date of

violation;

(d) The number of complaints filed

against the licensee;

(e) The length of time the licensee has

practiced acupuncture;

(f) The actual damage, physical or

otherwise, to a patient;

(g) The deterrent effect of the penalty

imposed;

(h) The effect of the penalty upon the

licensee’s livelihood;

(i) Any efforts for rehabilitation;

(j) The actual knowledge of the licensee

pertaining to the violation;

(k) Attemp ts by the licensee to correct

or stop a violation or refusal of a licensee

to correct or stop a violation;

(l) Any action relating to discipline or

denial of a certificate or license in

another state including, findings of guilt

or innocence, standards applied, penalties

imposed and penalties served;

(m) Any other mitigating circumstances.

66 . The Board of Massage Therapy’s guidelines are set out

in Florida Administrative Code Rule 64B7 - 30.002 (1)(k)1. , which

provide s that the penalty range for a vi olation of Section

480.046(1)(o), Florida Statutes, due to a violation of Section

480.0485, Florida Statutes, is: "$1,000.00 fine or revocation."

67 . Florida Administrative Code Rule 64B7 - 30.002 (3)

provides that, in determining the appropriate penalty, t he Board

of Massage Therapy may deviate from its penalty guidelines based

upon a consideration of the following aggravating o r mitigating

factors:

(a) The danger to the public;

(b) The length of time since the

violation;

(c) The number of times th e licensee has

been previously disciplined by the Board;

(d) The length of time licensee has

practiced;

(e) The actual damage, physical or

otherwise, caused by the violation;

(f) The deterrent effect of the penalty

imposed;

(g) The effect of th e penalty upon the

licensees livelihood;

(h) Any effort of rehabilitation by the

licensee;

(i) The actual knowledge of the licensee

pertaining to the violation;

(j) Attempts by licensee to correct or

stop violation or refusal by licensee to

correc t or stop violation;

(k) Related violations against licensee

in another state including findings of guilt

or innocence, penalties imposed and

penalties served;

(l) Actual negligence of the licensee

pertaining to any violation;

(m) Penalties impose d for related

offenses under subsections (1) and (2)

above;

(n) Any other mitigating or aggravating

circumstances.

68 . Petitioner requests that the Board of Acupuncture

enter an order imposing the following penalties: a reprimand; a

fine of $1000; su spension of his license for six months; and

probation for a period of two years with terms to be decided by

the Board of Acupuncture.

69 . Petitioner requests that the Board of Massage Therapy

enter an order imposing the following penalties: a reprimand; a

fine of $1000; suspension of his license for six months; and

probation for a period of two years, with terms to be

established by the Board of Massage Therapy.

70. In considering the aggravators and mitigators in this

matter it is noted that this is Res pondent's first and only

offense with either B oard ; he realized during the commission of

his offense that his advances were not welcomed by Patient U.C.

and stopped his inappropriate conduct ; Respondent is unlikely to

be of further danger to the public; an d any fine imposed on him,

or suspension of his license , will have a substantial impact on

his livelihood. It is also noted, however, that Respondent

caused substantial emotional harm to Patient U.C.

71 . Having carefully considered the facts of this matt er

in light of the provisions of Florida Administrative Code Rules

64B1 - 9.001 and 64B7 - 30.002, it is concluded that , while a longer

suspension of Respondent's licenses could be justified due to he

harm caused to Patient U.C., the penalties recommended by

P etitioner are within the guidelines of the Boards and are

reasonable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

1. That a final order be entered by the Board of

Acupuncture finding that Elham Kharab i, A.P., has violated

Section 456.072(1)(u), Florida Statutes, by violating Section

456.063(1), Florida Statutes, and Section 457.109(1)(j), Florida

Statutes (2004), as alleged in Counts One and Two of the

Administrative Complaint; dismissing the allegatio ns of Count

Three of the Administrative Complaint; issuing a written

reprimand; imposing a fine of $1 ,0 00.00; suspending Respondent's

acupuncture license for six months; and placing Respondent's

license on probation for two years with terms to be set by th e

Board of Acupuncture; and

2. That a final order be entered by the Board of Massage

Therapy finding that Elham Kharabi - Moghaddam, L.M.T., has

violated Section 480.046(1)(o), Florida Statutes, by having

violated Section 480.0485, Florida Statutes ; issuing a written

reprimand ; imposing a fine of $1 , 000 .00; suspending Respondent's

massage therapy license for six months; and placing Respondent's

license on probation for a period of two years, with terms to be

set by the Board of Massage Therapy.

DONE AND ENTE RED this 23rd d ay of Ju ly , 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 2 78 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of Ju ly , 2007.

COPIES FURNISHED:

Allison M. Dudley

Assistant General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

David M. Shenkman, Esquire

David M. Shenkman, P.A.

2701 South Bayshore Drive, Suite 602

Miami, Florida 33133

Pamela King , Executive Director

Board of Acupuncture and Board of Massage Therapy

Department of Health

4052 Bald Cypress Way , Bin C06

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo, General Counsel

De partment of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

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 sh ould be filed with the agency that

will issue the final order in these cases.