10-001149PL Department Of Health, Board Of Massage Therapy vs. Marcus E. Mccastler, L. M. T. Status: Closed Recommended Order on Monday, October 18, 2010.

Summary: Petitioner proved that Respondent obtained his license by providing false information on his application regarding his criminal history, but did not prove sexual misconduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 10 - 1149PL

)

MARCUS E. MCCASTLER, L. M. T., )

)

Respondent . )

)

RECOMMENDED ORDER

On August 11, 2010 , a duly - noticed hea ring was held in

Jacksonville , Florida , before Administrative Law Judge Lisa

Shearer Nelson assigned by the Division of Administrative

Hearings .

APPEARANCES

For Petitioner: S. J. DiConcilio, Esquire

Tari Rossitto - Van Winkle, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahas see, Florida 32399 - 3265

For Respondent: S. A. Siddiqui, Esquire

Siddiqui Legal Enterprise

Post Office Box 442067

Jacksonville, Florida 32222

STATEMENT OF THE ISSUE

The issues presented in this case are whet her Respondent has

violated the provisions of Chapters 456 and 480, Florida

Statutes, and Florida Administrative Code Chapters 64B7 - 26 , as

alleged in the Administrative Co mplaint , and if so, what penalty

should be imposed?

PRELIMINARY STATEMENT

On Octobe r 5, 2008, the Department of Health (Petitioner or

Department) filed a four - count Administrative Complaint against

Respondent, Marcus McCastler (Respondent), charging him with

several violations of Chapters 456 and 480, Florida Statutes, and

administrative rules adopted pursuant thereto. Respondent

disputed the allegations in the Administrative Complaint and on

March 9, 2010, the case was referred to the Division of

Administrative Hearings (Division) for assignment of an

administrative law judge.

On March 23, 2010, a Notice of Hearing scheduled the case to

be heard on May 13 - 14, 2010. However, the matter was continued

until August 11, 2010, and commenced and proceed ed to conclusion

that day.

At hearing, Petitioner presented the testimony of A.M.,

W.M., J ennifer Mason, and Officer Grant Bowlus. 1/ Petitioner's

Exhibits 1 through 8 were admitted into evidence without

objection. Respondent testified on his own behalf and presented

the testimony of William Pittman. No exhibits were offered by

Respondent .

T he Transcript was filed with the Division on August 26,

2010. By agreement of the parties, proposed recommended orders

were to be filed on or before September 17, 2010, and both

submissions were timely filed. Both parties ' Proposed

Recommended Orders hav e been carefully considered in the

preparation of this Recommended Order. Unless otherwise

indicated, all references are to the 2008 Florida Statutes.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of massage th erapy pursuant to Section 20.43 and

Chapters 456 and 480, Florida Statutes.

2. At all times material to the allegations in this case,

Respondent was an applicant for or licensed as a massage

therapist in the State of Florida, having been issued license

nu mber MA52091 on or about December 7, 2007.

Respondent's Application for Licensure

3 . Respondent applied for a license as a massage therapist

in July 2007. His application for licensure was signed and

submitted to the Department on or about July 12, 2007.

4. The application includes the following question:

20. Have you ever been convicted of, or

entered a plea of guilty, nolo contendere, or

no contest to, a crime in any jurisdiction

other than a minor traffic offense? You must

include all misdemeanors and felonies, even

if the court withheld adjudication so that

you would not have a record of conviction.

Driving under the influence or driving while

impaired is not a minor traffic offense for

purposes of this question.

5. Respondent answered "no" to question 20 quoted above.

6. At the end of the application is a place for a picture

of the applicant and a section labeled "Affidavit of Applicant"

which the applicant completes and signs. The affidavit states:

AFFIDAVIT OF APPLICANT: I, Marcus McCas tler,

affirm that I am the person referred to in

the foregoing massage therapy licensure

application, and that the attached photograph

is a true likeness of myself.

I understand that it is my duty and

responsibility as an applicant for licensure

to supple ment my application after it has

been submitted if and when any material

change in circumstances or conditions occur

which might affect the Board's decision

concerning my eligibility for examination or

licensure. Such supplement is required by

Chapter 456 .013(1), F.S. Failure to do so

may result in disciplinary action by the

Board including denial of licensure.

I have carefully read the questions in the

foregoing application and have answered them

completely, without reservation of any kind,

and I declar e that my answers and all

statements made by me herein and in support

of this application are true and correct.

Should I furnish any false information on or

in support of this application, I understand

that such action shall constitute cause for

denial, s uspension, or revocation of any

license to practice in the state of Florida

in the profession for which I am applying. I

have read, understand, and agree to comply

with the statutes and rules applicable to the

practice of my profession in Florida.

7. R espondent signed and dated his application immediately

following the declaration quoted above.

8. The answer to question number 20 on his application was

false.

9. On August 28, 2002, in Case No. 2001 - CT - 30030 (Fourth

Judicial Circuit, Duval County, Florida), Respondent pleaded nolo

contendere to the second - degree misdemeanor of driving on a

suspended or revoked license, in violation of Section 322.34(2),

Florida Statutes. Adjudication was withheld and court costs were

paid.

10 . On April 6, 2004, in Case No. 2003 - CT - 031996 - AXXX

(Fourth Judicial Circuit, Duval County, Florida) , Respondent

pleaded nolo contendere to driving with no valid driver's

license, in violation of Section 322.03, Florida Statutes.

Adjudication was withheld and court costs paid.

11. On December 15, 2004, in Case No. 2004 - MM - 041686

(Fourth Judicial Circuit, Duval County, Florida), Respondent

pleaded nolo contendere to possession of less than 20 grams of

cannabis, a first - degree misdemeanor, in violation of Section

893.13(6), Flor id Statutes. Adjudication of guilt was withheld

and court costs paid.

12. On December 18, 2006, Respondent pleaded nolo

contendere to the misdemeanor of permitting an unauthorized minor

to drive, in violation of Section 322.35, Florida Statutes. In

Case No. 2006 - CT - 004817 (First Judicial Circuit, Escambia County,

Florida), Respondent was adjudicated guilty , fined $200.00, and

ordered to pay court costs.

13. On February 14, 2007, Respondent pleaded nolo

contendere to possession of less than 20 grams of cannabis, a

first - degree misdemeanor. In Case No. 07 - 00255 - MM - MA (Fourth

Judicial Circuit, Clay County, Florida), adjudication was

withheld and Respondent was ordered to pay $205 in costs.

1 4 . On July 3, 2008, Respondent was arrested and charged

with simple battery, in violation of Section 784.03(1)(b),

Florida Statutes, a first - degree misdemeanor. On July 4, 2008,

Respondent pleaded nolo contendere to the lesser included offense

of fighting. In Case No. 2008 - MO - 18280 (Fourth Judicial Circuit,

Duval County, Florida), the Court withheld adjudication and

imposed a fine of $250.00.

1 5 . All of the offenses listed above with the exception of

the offense described in paragraph 14 occurred before Respondent

signed the application for a license as a massag e therapist.

16. Respondent claims that he answered question 20 no

"reluctantly" on advice of a lawy e r at his school. Respondent's

claim is not credible.

The July 6, 2008 Incident

17. In July 2008, Respondent was employed as a massage

therapist by Sum mit Regency, d/b/a Massage Envy, in Jacksonville,

Florida.

18. On or about July 6, 2008, Respondent gave a massage to

A.M., a female client of Massage Envy. A.M. has been a licensed

R.N. since 1979 and works as a public health nurse at the Duval

County H ealth Department.

19. A.M. had received massages before and Respondent had

given her a massage on a previous occasion. On this particular

day, she came to Massage Envy with her husband , W.M., who was

also getting a massage. Both were using a prepaid pla n whereby

they received a set number of massages over a defined period of

time. A.M.'s massage was scheduled for and took place at

approximately 2:00 p.m.

20. Upon entering the room, A.M. was provided with a

sheet/drape and Respondent left the room while A.M. undressed,

got on the table face down and covered herself with the drape.

21. A.M. testified that, while she was face down on the

table and during the massage, Respondent removed the drape,

leaving her completely exposed. She testified that about 2 0

minutes into the massage, Respondent inserted his bare finger

into her rectum and pushed his finger to the side of the rectum

without her consent and without telling A.M. what he was doing or

why .

22. According to A.M., she did not say anything and did not

attempt to get down from the table because she was in shock and

frightened, and mortified at what Respondent had done. She did

not ask him to return the drape until he instructed her to turn

over. At that point , he handed her the drape and she turned over

onto her ba ck. He massaged her arms and then the massage was

over.

23. Respondent, on the other hand, denied removing the

drape from A.M.'s body during the massage and adamantly denied

inserting his finger into her rectum.

24. A.M. and her husband left Massage Envy after their

massages and returned home. A.M. did not tell her husband about

the incident until they arrived home, at which time she told him

that Respondent had " stuck his finger up her butt. "

25. W.M. advised her to report the matter to the police and

to call the owner of Massage Envy, which she did. With respect

to the owner of Massage Envy, she reported what she believed

Respondent had done, and asked for her money back. Her money was

refunded to her, and she was provided a copy of the complaint

paperwork to file a complaint with the Department of Health.

26. A.M. also reported the incident to the Jack sonville

Police Department at approximately 7:00 p.m. that evening , but

did not wish to file charges against Respondent. She said s he

simply wanted to "report it so that it would be on record." She

also went to her family physician the next day because her

hemorrhoids were bleeding, which she attributed to the incident

with Respondent.

27. Respondent was not charged with any crime a s a result

of events taking place July 6, 2008. However, he was terminated

from his emp loyment based on A.M.'s complaint.

28. After careful review of all of the evidence presented

at hearing, there is not clear and convincing evidence that

Respondent r emoved the drape inappropriately during the exam or

that he intentionally inserted his finger into A.M.'s rectum.

CONCLUSIONS OF LAW

29 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in ac cordance with Sections 120.569 and 120.57(1), Florida

Statutes (2010) .

30. The Department is seeking to take disciplinary action

against Respondent's license as a massage therapist. Because

disciplinary proceedings are considered to be penal proceedin gs,

the Department has the burden to prove the allegations in the

Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern and Co. , 670

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

(Fla. 1987). As stated by the Supreme Court of Florida,

Clear 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 lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the 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 Henson , 913 S o. 2d 579, 590 (Fla. 2005), quoting Slomowitz

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

31. Moreover, disciplinary provisions must be strictly

construed in favor of the licensee. Elmariah v. Department of

Professional Regulation , 574 So. 2d 164 (Fla. 1st DCA 1990);

Taylor v. Department of Professional Regulation , 534 So. 782, 784

(Fla. 1st DCA 1988).

32. Count I of the Administrative Complaint is based upon

paragraphs one through ten and concerns the allegations related

to the July 6, 2008 , incident. It charges Respondent with

violating Sections 456.063(1); 456.072(1)(v); 480.046(1)(o); and

480.0485, Florida Statutes, and Florida Administrative Code Rules

64B7 - 26.010(1) and (3). The statutory provisions identified

above state the followin g:

456.063 Sexual misconduct; disqualification

for license, certificate, or registration. --

(1) Sexual misconduct in the practice of a

health care profession means violation of the

professional relationship through which the

health care practitioner uses such

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 activity outside the scope of

the professional practice of such health care

profession. Sexual misconduct in the

practice of a health care profession is

prohibited.

456.072 Grounds for discipline; penalties;

enforcement. --

(1) The following acts shall constit ute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(v) Engaging or attempting to engage in

sexual misconduct as defined and prohibited

in s. 456.063(1).

480.046 Grounds for disciplina ry action by

the board. --

(1) The following acts constitute grounds

for denial of a license or disciplinary

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

* * *

(o) Violating any provision of this chapter

or chapter 456, or any rules ad opted pursuant

thereto.

480.0485 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 or the

scope of generally accepted examination or

treatment of the patient. Sexual misconduct

in the practice of massage therapy is

prohibited.

33. Florida Administrative Code Rule s 64B7 - 26.010(1) and

(3) provide as follows:

64B7 - 26.010 Sexual Activity Prohibited.

(1) Sexual ac tivity 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

arra ngements to engage in sexual activity

with any client.

34. Clear and convincing evidence is a very heavy burden to

meet. While evidence was presented to support the allegations in

the Administrative Complaint, the evidence presented was not " of

such a weight that it produces in the 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 Henson , supra .

Under these circumstances, the Department did not meet its burden

with respect to Count I.

35. Count II of the Administrative Complaint is also based

upon the facts alleged in paragraphs one through ten, in addition

to paragraph 19, concerning the incident on July 6, 2008. Count

II charges Respondent with violating Se ction 480.046(1)(o),

Florida Statutes, which was quoted in paragraph 32 above, as well

as Section 480.046(1)(h), Florida Statutes , and Florida

Administrative Code Rule 64B7 - 30.001(5).

36. Section 480.046(1)(h) authorizes disciplinary action

for "[g]ros s or repeated malpractice or the failure to practice

massage with that level of care, skill, and treatment which is

recognized by a reasonably prudent massage therapist as being

acceptable under similar conditions and circumstances."

37. Florida Admini strative Code Rule 64B7 - 30.001(5)

provides:

64B7 - 30.001 Misconduct and Negligence in the

Practice of Massage Therapy.

The following acts shall constitute the

failure to practice massage therapy with that

level of care, skill, and treatment which is

recogni zed by a reasonably prudent similar

massage therapist as being acceptable under

similar conditions and circumstances:

* * *

(5) Failure to appropriately drape a client.

Appropriate draping of a client shall include

draping of the buttocks and genitalia of all

clients, and breasts of female clients,

unless the client gives specific informed

consent to be undraped.

38. For the same reason expressed with respect to Count I,

the allegations in Count II have not been proven by clear and

convincing evidence.

39. Count III of the Administrative Complaint concerns

Respondent's actions with respect to obtaining his license to

practice massage therapy , as alleged in paragraphs 1,2, 11 - 17 and

19. The statutory violations charged are Se ctions 456.072(1)(h)

and (m), and 480.046(1)(o), Florida Statutes (2007).

40. Section 456.072, Florida Statutes (2007) , provides in

pertinent part:

456.072 Grounds for discipline; penalties;

enforcement. --

(1) The following acts shall constitute

gro unds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(h) Attempting to obtain, obtaining, or

renewing a license to practice a profession

by bribery, by fraudulent misrepresentation,

or through an e rror of the department or the

board.

* * *

(m) Making deceptive, untrue, or fraudulent

representations in or related to the practice

of a profession or employing a trick or

scheme in or related to the practice of a

profession.

41. Section 480.046(1)(o), Florida Statutes (2007), makes

it a basis for disciplin e to violate any of the provisions of

Chapter 480, Chapter 456, or any rules adopted pursuant thereto.

42. The Department has established the vi olations charged.

Respondent submitted an application for licensure that stated he

had never been convicted of, or entered a plea of guilty, nolo

contendere , or no contest to, a crime in any jurisdiction other

than a minor traffic offense. He knew at the time he submitted

the application that he had in fact been charged with, and

pleaded nolo contendere to, a variety of offenses, including

driving on a suspended license, driving without a license,

possession of cannabis and allowing an unauthorized minor to

drive. Respond ent claims that he answered the question on the

application "no" reluctantly, on the advice of a lawy er of his

school. His claim is not credible . Moreover, his record

evidences a pattern of behavior that raises serious questions

about his fitness to hold a professional license. To date,

Respondent has entered six different pleas to criminal charges,

five of which predate his application. As a whole, it paints a

picture of a young man who has little respect for the law , and no

interest in conforming hi s behavior to its parameters.

Violations of Sections 456.072(1)( h ) and (m), and 480.046(1)(o),

Florida Statutes, have been demonstrated by clear and convincing

evidence.

43. Finally, Count IV of the Administrative Complaint

charges Respondent with violati ng Section 480.047(1)(f), Florida

Statutes (2007), by giving false or forged evidence to the

Department in obtaining a license. The Department has also

demonstrated this violation, in that Respondent supplied a false

answer to question 20 on his applicati on for licensure. By doing

so, he also violated Section 480.046(1)(o), Florida Statutes

(2007), charged in Count IV of the Administrative Complaint.

44. The Board of Massage Therapy has adopted disciplinary

guidelines pursuant to Section 456.077, Florid a Statutes, to

provide notice to licensees and to the public of the appropriate

penalty ranges for violations of Chapters 456 and 480, and any

rules adopted to implement these chapters. The recommended

penalty for a violation of Section 456.072(1)(h), Flo rida

Statutes, is revocation. Fla. Admin. Code R. 64B7 - 30.002(1)(b).

For a violation of Section 480.046(1)(f) or Section

480.072(1)(m), where the offense is for fraud or making a false

or fraudulent misrepresentation, the penalty for a first offense

is a $10,000 fine, with any subsequent offense subject to the

same fine and revocation.

45. The Board has also identified aggravating and

mitigating factors to be considered in determining the

appropriate penalty to be imposed. Among those factors are t he

danger to the public; the length of time since the violation; the

length of time the licensee has practiced; any effort at

rehabilitation by the licensee, the actual knowledge of the

licensee pertaining to the violation and any other mitigating or

aggra vating circumstances. Fla. Admin. Code R. 64B7 - 30.002(3).

46. In this case, consideration is given to the fact that

Respondent had not one criminal offense, but several that should

have been disclosed on his application. He knew that his answer

to th e question on the application was false, but chose to deny

any criminal history when he had pleaded to five crimes in

multiple counties over a period of five years immediately

preceding his application. Moreover, the final plea took place a

mere five mont hs prior to his application for licensure. There

is no evidence that Respondent has made any effort at

rehabilitation, either with respect to his criminal past or his

violation of disciplinary provisions related to his license. It

appears, given Responde nt's pattern of behavior, that only the

most severe penalty will get his attention.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Board of Massage Therapy enter a Final Order

finding tha t Counts I and II of the Administrative Complaint were

not proven by clear and convincing evidence; that Respondent

committed the acts charged in Counts III and IV of the

Administrative Complaint and by doing so, violated Sections

456.072(1)(h) and (m); 48 0.046(1)(o) ; and 480.047(1)(f), Florida

Statutes (2007); and revoking his license to practice massage

therapy.

DONE AND ENTERED this 1 8 th day of October, 2010, in

Tallahassee, Leon County, Florida.

S

LISA SHE ARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Admi nistrative Hearings

this 1 8 th day of October, 2010.

ENDNOTE

1/ The victim, A.M., and her husband, W.M., are referred to by

their initials. § 456.057(10(a), Fla. Stat.

COPIES FURNISHED:

S. J. DiConcilio, Esquire

Tari Anne Rossitto - Van Winkle, E squire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

S. A. Siddiqui, Esquire

Siddiqui Legal Enterprise

Post Office Box 442067

Jacksonville, Florida 32222

E. Renee Alsobrook, Acting General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Kaye Howerton, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin C 0 6

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Depar tment 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 e xceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.