10-010597PL Department Of Health, Board Of Massage Therapy vs. Giuseppe Chiarizia, L.M.T. Status: Closed Recommended Order on Thursday, September 1, 2011.

Summary: Petitioner presented clear and convincing evidence that Respondent committed sexual misconduct in the pratice of massage therapy. Recommend revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 10 - 10597PL

)

GIUSEPPE CHIARIZIA, L.M.T., )

)

Respondent. )

)

RECOMMENDED ORDER

On March 28, May 27 and June 9 , 2011 , a duly - noticed hea ring

was held in Tallahassee , Florida , before Lisa Shearer Nelson , a n

Administrative Law Judge assigned by the Division of

Administrative Hearings .

APPEARANCES

For Petitioner: Greg S. Marr, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, F lorida 32399 - 3265

For Respondent: Giuseppe Chiarizia, pro se

P.S.C. 451 , Box 490

FPO, AE 09834

STATEMENT OF THE ISSUE

The issue to be decided is whether Respondent violated the

provisions of chapters 456 and 480, Florida Statutes, as alleged

in the Administrative Complaint, and if so, what penalty should

be imposed?

PRELIMINARY STATEMENT

On December 30, 2008, Petitioner, the Department of Health

(Petitioner or the Department) filed a three - count Administrative

Co mplaint against Respondent, Giuseppe Chiarizia, alleging that

he violated sections 456.063(1), 456.072(1)(v) , 480.046(1) (h) and

(o) , and 480.0485, Florida Statutes (2008), and Florida

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

30.001(5). O n January 20, 2009, Respondent filed an Answer to

the Administrative Complaint and an Election of Rights form in

which Respondent requested an administrative hearing pursuant to

section 120.57(1), Florida Statutes.

On December 10, 2010, t he matter was referred to the

Division of Administrative Hearings for assignment of an

administrative law judge. On December 22, 2010, the case was

noticed for hearing to commence February 15, 2011. However, on

January 20, 2011, Petitioner filed a Notice of Forwarding

Correspondent and Pleadings from Counsel for Respondent.

Attached to the Notice was a facsimile sheet, a Motion to

Withdraw and a Notice of Intent to Withdraw directed to

Respondent. Both pleadings were captioned so as to indicate that

the y were filed with the Department of Health as opposed to the

Division, and statements made in the documents gave the

impression that Respondent's counsel was not aware that the case

had been forwarded to the Division and was noticed for hearing.

On Janu ary 25, 2011, the undersigned denied the request to

withdraw, without prejudice to counsel for Respondent's ability

to file an amended request that provided an address for

Respondent.

On February 3, 2011, Petitioner moved for a continuance,

citing in part the uncertainty regarding Respondent's location

and the status of his representation and whether he was actually

aware of the proceedings . On February 8, 2011, Respondent's

counsel filed an Amended Motion for Order Allowing Withdrawal of

Counsel, and on February 9, 2011, a n Order Canceling Hearing was

issued, which required the parties to file a Joint Status Report

and for Respondent's counsel to clarify whether she still wished

to withdraw from representation. The Department filed a

Unilateral Status Re port, describing its efforts to reach

opposing counsel and providing available dates to reschedule the

hearing. Nothing was received from Respondent or his counsel.

As a result, on March 7, 2011, the case was re - noticed for

hearing to commence March 28, 2011.

On March 24, 2011, Respondent moved to continue the hearing,

asserting that adequate notice of the hearing had not been

provided. The Department objected, noting Respondent's failure

to participate in filing a Joint Status Report. On March 24,

201 1, the M otion for Continuance was denied, and the hearing was

convened as scheduled on March 28, 2011. At that time, counsel

for Respondent renewed her Motion to Withdraw, citing her

inability to communicate with her client, who at the time was in

Bahrain , in order to fully prepare for hearing. The motion was

granted and , because of the absence of Respondent and notice

concerns, the hearing recessed. O n March 29, 2011, an Order was

issued continuing the case until an Order Rescheduling Hearing

was issued and notifying the parties that the case would be

reconvened on May 27, 2011, unless the parties advised of a

conflict. The Order further directed Petitioner and the

undersigned's assistant to forward to Respondent by e - mail a copy

of the Order, and Respo ndent was directed to notify the Division,

no later than April 20, 2011, whether he still disputed the

allegations in this case and wanted a hearing.

Although Respondent did not file a Status Report as

required, counsel for Petitioner filed one indicati ng that he had

spoken to Respondent, who still wished a formal hearing, and who

had indicated that he would participate by telephone from the

King dom of Bahrain, where he resided . The case was then noticed

to reconvene May 27, 2011, and did so. At that t ime, Petitioner

presented the testimony of Taimour Chaudhry, Deputy Andrew

LoTurco, Deputy Jason Larson, and Jennifer Mason. Petitioner's

Exhibits 1 - 6, including the deposition testimony of Teri Ingram,

were admitted into evidence. Respondent participate d in the

proceeding by telephone, but was unable to testify at that time

because of the inability to locate a person authorized to place

him under oath. The hearing was continued again until June 9,

2011, for the purpose of allowing Respondent to testify. At that

time, Petitioner's Exhibit 7 was admitted into evidence.

Transcripts of the proceedings were filed on July 5, 2011,

and the parties were given until July 25, 2011 to file proposed

recommended orders. At the request of the parties, the deadline

was extended to August 8, 2011.

Petitioner filed a Proposed Recommended Order on August 8,

2011. Although Respondent was requested to provide and did

provide an address for receiving documents related to this

hearing, all orders sent subsequent to withdr awal of counsel for

Respondent have been returned to the Division. Nonetheless,

Respondent participated in the hearing and submitted a letter

after the hearing. The letter filed August 5, 2011, indicated

that he is now in Italy, as opposed to Bahrain, bu t did not

provide a forwarding address. The Division will be serving a

copy of this Order to an e - mail for Respondent provided by the

Department.

FINDINGS OF FACT

1. The Department of Health is the state agency charged

with the licensing and regulation o f massage therapists pursuant

to section 20.42 and chapters 456 and 480, Florida Statutes.

2. At times material to the allegations in the

Administrative Complaint, Respondent, Giuseppe Chiarizia, was

licensed as a massage therapist in the State of Florida , having

been licensed on August 26, 2008 , and issued license number

MA54313. At the time of the alleged incident in this case, his

license was clear and active.

3. Teri Ingram and M.C. are close friends who reside, with

their respective spouses, in Illi nois. In late September, early

October of 2008, the two couples were vacationing in Panama City.

4. On or about October 1, 2008, Ms. Ingram and T.C. went to

the Salon Baliage and Spa for a massage.

5. Upon arriving at the spa, the women were led to a room

to fill out paper work, and offered some refreshments, which they

declined. Each woman was then taken back for the services they

were receiving. Ms. Ingram was called back first, and had a

facial and a massage. M.C. was having similar services.

6 . After Ms. Ingram's massage was finished, she returned to

the waiting room to wait for M.C. At some point, an employee at

the spa came to her and told her that M.C. was in another room

and wanted to see her immediately.

7. As Ms. Ingram approached the room, M.C. came out. She

was dressed, but was shaking and crying hysterically . Ms. Ingram

described her as "all hunched over , more like hugging herself."

8. M.C. wanted to call the women's husbands and leave the

spa. Ms. Ingram notified the manager t hat something had happened

but she was not sure what, and that they were leaving the spa.

Ms. Ingram paid for her services; she did not know if M.C. did so

as well.

9. The two women went outside, and while waiting for their

husbands, M.C. told Ms. Ingram that the massage therapist,

Respondent, had touched her. Ms. Ingram asked her what she meant

by that statement, and M.C. told Ms. Ingram that the massage

therapist had rubbed his genitals across her hands and her

shoulders during her massage, and that on ce he began the massage

he slipped his finger inside her vagina. M.C. stated that she

told him to leave the room and to leave her alone, and in

response, he held her down and told her he was sorry. She asked

him repeatedly to leave the room and he finall y did so.

10. Once their husbands arrived, the two couples drove to

the Panama City Beach Police Station to report the incident.

11. Deputy Andrew LoTurco was employed by the Bay County

Sheriff's Office. He was dispatched to the Panama City Beach

Poli ce Department to respond to M.C.'s complaint of sexual

battery. When he encountered M.C., she was very distraught and

embarrassed. After hearing her complaint and speaking with M.C.,

her husband and a lady, presumably Ms. Ingram, Deputy LoTurco

transport ed M.C. to the Bay Medical Center for examination, and

turned over the investigation to Deputy Jason Larson.

12. Deputy Larson met with M.C. and also observed that she

was extremely upset and had been crying. During the interview,

she was withdrawn. M .C. related to Deputy Larson an account of

what happened that was essentially the same as what she had

stated to Ms. Ingram. She identified the massage therapist as

Respondent.

13. At some point, Respondent was taken to the Sheriff's

Office, and Deputy L arson interviewed him and advised him of his

Miranda rights. Respondent declined to give a taped statement,

but did speak with Officer Larson. Initially, he denied M.C.'s

report, but as the interview continued, he stated that it was

possible he may have accidentally penetrated M.C.'s vagina with

the tip of his finger.

14. He also stated that if he was in his country, M.C.

would have given him a tip and thanked him.

15. At the hospital, a rape kit was administered. M.C.

continued to be very upset by the incident, and the two couples

shortened their planned vacation to return home as a result.

16. Respondent claims that M.C. was a difficult client to

massage because she was heavy - set . By contrast, Ms. Ingram

testified that she thought M.C. was approxima tely five feet, four

inches tall, and weighed approximately 140 pounds. Respondent

also testified that during the massage, M.C. brought her hands

out too far, making it difficult for him to continue massaging

her and also avoid intimate contact with her h ands. Finally, h e

claimed, essentially, that M.C. was masturbating during the

massage. Respondent's testimony is not credited.

17. Massage therapy training often involves blindfold

massage, and teaches that massage in the vicinity of the genital

area is to be conducted very carefully. If a massage therapist

properly draped a patient consistent with the requirements of

Florida Administrative Code Rule 64B7 - 30.001, it would not be

possible to inadvertently touch a client's genital area.

18. The placeme nt of a massage therapist's finger into the

vagina of a massage client is outside the scope of the

professional practice of massage therapy and is below the

standard of care .

CONCLUSIONS OF LAW

1 9 . The Division of Administrative H earings has

jurisdiction over the subject matter and the parties to this

action in accordance with s ections 120.569 and 120.57(1), Florida

Statutes (2010) .

20 . The Department is seeking to take disciplinary action

against Respondent's license as a mass age therapist. Because

disciplinary proceedings are considered to be penal proceedings,

the Department has the burden to prove the allegations in the

Administrative Complaint by clear and convincing evidence. Dep' t

of Banking and Fin . v. Osborne Stern an d 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 testif y 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 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

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

2 1 . Moreover, disciplinary provisions must be strictly

construed in favor of the licensee. Elmariah v. Dep ' t of Prof .

Reg . , 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep' t of

Prof . Re g. , 534 So. 782, 784 Fla. 1st DCA 1988).

2 2 . Before addressing whether Respondent's conduct violates

the statutory and rule provisions cited in the Administrative

Complaint, it is necessary to discuss the admissibility of

statements by M.C. presented by the Department in support of the

charges against Respondent. M.C. did not testify in this

proceeding. Her statements regarding Respondent's con duct were

statements made to her friend, Ms. Ingram, in the moments after

the incident, and her statements made to Deputy LoTurco upon

arriving at the police station. Both statements were made while

M.C. was visibly upset: as Ms. Ingram described her, sh e was

crying hysterically and shaking. The deposition of Ms. Ingram

was taken while Respondent was represented by counsel, and

counsel objected to the statements as hearsay. The Department

argues that they constitute an exception the hearsay rule as an

e xcited utterance.

2 3 . Section 90.803, Florida Statutes , lists the types of

evidence that are not inadmissible as hearsay, regardless of

whether the declarant is available as a witness. Section

90.803(2) defines the excited utterance exception as "[a]

st atement or excited utterance relating to a startling event or

condition made while the declarant is under the stress of

excitement caused by the event or condition." A statement

qualifies as an excited utterance when,

(1) there is an event startling enou gh to

cause nervous excitement; (2) the statement

was made before there was time for

reflection; and (3) the statement was made

while the person was under the stress of the

excitement from the startling event.

Lopez v. State , 888 So. 2d 693, 696 - 697 (Fla. 1st DCA 2004);

Hayward v. State , 24 So. 3d 17, 29 (Fla. 2009). The rationale

for the excited utterance exception is that a statement made

during a period of excitement is likely to be more reliable than

a statement made after a period of reflection, beca use a person

"who is startled and excited does not have the capacity to

analyze the facts or to make a conscious misrepresentation of the

event." Lopez , 888 So. 2d at 696.

2 4 . As stated by the First District in Werley v. State , 814

So. 2d 1159, 1161 (Fl a. 1st DCA 2002 ), "[t]here is no bright - line

rule of hours or minutes to determine whether the time interval

between the event and the statement is long enough to permit

reflective thought." This determination is one that depends upon

the circumstances. Id. Factors that can be considered in making

this determination are the age of the declarant, the physical and

mental condition of the declarant, the characteristics of the

event and the subject matter of the statements. Hayward , 24 So.

3d at 24 (and ca ses cited therein).

2 5 . In this case, both the statement to Ms. Ingram and the

statement to Deputy L o Turco constitute excited utterances. In

both instances, the person to whom she spoke described her as

extremely upset to the point of hysteria. The e vents about which

she spoke were not only something that would evoke a strong

reaction, but something that would cause a certain amount of

embarrassment and a great deal of stress. The conversation with

Ms. Ingram was a matter of minutes after the inciden t, and the

report to Deputy LoTurco was within a few hours. The accounts

were consistent. Based upon the evidence as a whole, the

undersigned finds these statements made by M.C. as recounted in

Ms. Ingram's deposition and Deputy LoTurco's testimony to be

excited utterances admissible as an exception to the hearsay

rule , pursuant to section 90.803(2).

2 6 . Count I of the Administrative Complaint charged

Respondent with violating s ections 456.063(1); 456.072(1)(v);

480.046(1)(o); and 480.0485, Florida Stat utes . The se statutory

provisions state the following:

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 relation ship 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 pers on 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;

e nforcement. --

(1) The following acts shall constitute

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 prohibite d

in s. 456.063(1).

480.046 Grounds for disciplinary 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 provi sion of this chapter

or chapter 456, or any rules adopted 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

massa ge 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 outs ide 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.

2 7 . There is clear and convincing evidence to support the

allegations in Count I of the Administrative Complaint. M.C.

related what happened to her immediately after the massage, while

still shaking and crying as a result of the incident.

Ms. Ingram's description of her behavior supports the inference

that the complained - about event actually occurred. Moreover,

Respondent admitted to Deputy Larson that he might have

"accidentally" inserted his finger into M.C.'s vagina during the

massage. Expert testimony is credited that accidental contact

such as that described would not occur co nsistent with accepted

training for a massage therapist. Moreover, Respondent's

explanation of the events is not at all credible.

2 8 . Count II of the Administrative Complaint charges

Respondent with violating the same provisions outlined above, in

add ition to Florida Administrative Code Rule 64B7 - 26.010(1) and

(3). The rule provides in pertinent part:

64B7 - 26.010 Sexual Activity Prohibited.

(1) Sexual activity by any person or persons

in any massage establishment is absolutely

prohibited.

* * *

(3) No licensed massage therapist shall use

the therapist - client relationship to engage

in sexual activity with any client or to make

arrangements to engage in sexual activity

with any client.

2 9 . It is unclear why the Department ha s repeated the same

statutory violations in Count II that are alleged in Count II,

and any finding that the provisions were violated would be

superfluous. However, for the reasons expressed above, clear and

convincing evidence exists to demonstrate that R espondent

violated rule 64B7 - 26.010 as charged in Count II of the

Administrative Complaint.

30 . Count III of the Administrative Complaint charges

Respondent with violating section 480.046(1)(h) and (o) and rule

64B7 - 30.001(5). The text of subsection 480 .046(1)(o) is quoted

at paragraph 26 , above.

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

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

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

recognized by a reasona bly prudent massage therapist as being

acceptable under similar conditions and circumstances."

32. Florida Administrative Code Rule 64B7 - 30.001(5)

provides:

64B7 - 30.001 Misconduct and Negligence in the

Practice of Massage Therapy.

The following acts sh all constitute the

failure to practice massage therapy with that

level of care, skill, and treatment which is

recognized 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.

33 . As stated above, findings that Respondent violated

section 480.046(1)(o) are included in the discussion regarding

Count I and need not be repeated here. There is evidence that a

massage therapist's insertion of his or her finger into the

vagina o f a massage client is outside the scope of the

professional practice of massage therapy, and would be below the

standard of care. Accordingly, violation of section

480.046(1)(h) has been proven by clear and convincing evidence.

34 . Rule 64B7 - 30.001(5) , however, deals with proper draping

techniques. While there was evidence to the effect that, had

proper techniques been observed, it was not possible for a

therapist to "accidentally" insert a finger into the vagina of a

client, there was no evidence ind icating how M.C. was actually

draped during the massage. Therefore, a violation of rule 64B7 -

30.001 was not proven by clear and convincing evidence.

35 . Florida Administrative Code Rule 64B7 - 30.002 contains

the Board of Massage Therapy's Disciplinary G u idelines for

penalties to be imposed when violation of statutes or rules

governing massage therapy are found. The penalty for a first -

time violation of section 480.0485 is a $1,000 fine and

revocation. Aggravating and mitigating factors are identified in

rule 64B7 - 30.002(3), and have been considered.

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 Respondent guilty of violating section s 456.063(1);

456.072(1)(v); 480.046(1) (h) and (o); and 480.0485 , Florida

Statutes, and Florida Administrative Code Rule 64B7 - 26.010;

finding Respondent not guilty of violating rule 64B7 - 30.001(5);

and imposing a fine of $1,000 and revoking his license to

p ractice massage therapy.

DONE AN D ENTERED this 1st day of September , 2011, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER 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 Administrative Hearings

this 1st day of September , 2011.

COPIES FURNISHED:

Greg S. Marr, Esquire

De partment of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Manshi Shah, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Giuseppe Chiarizia

P.S.C. 451 , Box 490

FPO, AE 09834

(giuseppe [e-mail])

Nicholas W. Romanello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32299 - 170 1

Anthony Jusevitch, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypre ss Way, Bin A02

Tallahassee, Florida 32299 - 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.