11-000937PL Department Of Health, Board Of Massage Therapy vs. Angel Luis Dejesus, Lmt Status: Closed Recommended Order on Tuesday, June 28, 2011.

Summary: Respondent was convicted of a crime directly related to the practice or ability to practice massage therapy based upon his conviction for sexual assault.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 11 - 0937PL

)

ANGEL LUIS DEJESUS, LMT, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 28, 2011 , a duly - noticed hea ring was held in

Tallahassee , Florida , before Lisa Shearer Nelson , an

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, Florida 32399 - 3265

For Respondent: Angel Luis DeJesus, pro se

Franklin Correctional Institution

1760 Highway 67 North

Carrabelle, Florida 32322

STATEMENT OF THE ISSUE

The issue to be determin ed is whether Respondent violated

section 480.046(1)(c), Florida Statutes (2007), as alleged in the

Administrative Complaint, and if so, what penalty should be

imposed?

PRELIMINARY STATEMENT

On April 21, 2009, the Department of Health (Petitioner or

Department) filed an Administrative Complaint charging

Respondent , Angel DeJesus (Respondent or Mr. DeJesus), with

violating section 480.046(1)(c), based upon his conviction for

sexual battery. On June 2, 2009, Respondent executed an Election

of Rights form and requested a section 120.57(1) hearing. On

February 22, 2011, the case was referred to the Division of

Administrative Hearings for the assignment of an administrative

law judge.

On March 7, 2011, a Notice of Hearing was iss ued, scheduling

the case for hearing on April 28, 2011, and the case proceeded as

scheduled. Respondent, who is incarcerated, pa rticipated in the

proceedings by telephone.

At hearing, Petitioner presented the testimony of Paula

Mask, and Petitioner's Exh ibits 1 through 4 were admitted into

evidence. Petitioner was afforded the opportunity to file the

depositions of Sergeant Bankert (Petitioner's Exhibit 5) and

Jennifer Mason (Petitioner's Exhibit 6) no later than 30 days

after the hearing. Respondent di d not present any witnesses or

exhibits at hearing.

The Transcript of the proceedings was filed with the

Division on May 9, 2011 . Petitioner's Exhibit 5 was filed May 4,

2011, and Petitioner's Exhibit 6 was filed May 20, 2011. On

May 27, 2011, a Schedul ing Order issued directing the parties to

file their proposed recommended orders no later than June 10,

2011. Petitioner filed its Proposed Recommended Order on June 9,

2011. To date, there has been no written submission by

Respondent.

FINDINGS OF F ACT

1. The Department is the state agency charged with the

regulation of the practice of massage therapy pursuant to section

20.43 and chapters 456 and 480, Florida Statutes.

2. At all times material to the allegations in the

Administrative Complaint, Re spondent was licensed as a massage

therapist in the State of Florida, having been issued license

number MA49928.

3. On September 19, 2007, Deputy Darin Bankert was a sworn

law enforcement officer working as a violent crimes investigator

with the Manatee C ounty Sheriff's Office. He was called to the

scene of an alleged sexual battery.

4. The reported crime involved a sexual attack of a massage

therapist client during a massage. Respondent was the subject of

the investigation , which was initiated by the victim .

5. On October 22, 2007, Respondent was charged with sexual

battery in violation of section 794.011(5), Florida Statutes, a

second - degree felony. The information in Case Number 2007 CF

003650 issued in the Circuit Court, Twelfth Judicial Circu it, in

and for Manatee County, states:

ANGEL DEJESUS on the date of 9/19/2007,

. . . in the County and State aforesaid, did

commit a sexual battery upon [victim], a

person twelve years of age or older, to - wit:

ANGEL DEJESUS with his sexual organ,

penet rated or had union with the vagina

and/or the anus of [victim] and in the

process thereof used physical force and

violence not likely to cause serious personal

injury to the said [victim] contrary to

Section 794.011(5), Florida Statutes, in such

case made, and provided and against the peace

and dignity of the State of Florida.

6. On September 19, 2008, as a result of a jury trial,

Respondent was found guilty of sexual battery as alleged in the

indictment. On September 25, 2008, the trial court adjudicat ed

him guilty and sentenced him to fifteen years in prison, with

credit for 372 days for time served before sentencing. The court

designated Respondent as a sexual offender with all of the

reporting requirements associated with that status, and

prohibited any contact with the victim.

7. Sexual battery on a massage therapy client is a crime

directly related to the practice of massage therapy . Sexual

battery , whether or not involving a massage therapy client , is

directly related to the practice and the ab ility to practice

massage therapy .

ust between a massage therapist and a client is an

integral component of the therapist - client relationship. Sexual

battery demonstrates a lack of hon esty, self - control and

judgment. Given the vulnerable position of a client during any

massage, anything that undermines that trust impairs the

therapist's ability to fulfill his or her responsibilities as a

therapist.

CONCLUSIONS OF LAW

9 . The Divisio n of Administrative Hearings 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.

10. The Department is seeking to take disciplinary action

against Respondent's license as a massage therapist. Because

disciplinary proceedings are considered to be penal proceedings,

the Department has the burden to prove the allegations in the

Administ rative Complaint by clear and convincing evidence. Dep' t

of Banking and Fin . 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 i t 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).

11. The Administrative Complaint charges Respondent with a

single count of violating section 480.046(1)(c), which provides

in pertinent part:

(1 ) The following acts constitute grounds

for denial of a license or disciplinary

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

* * *

(c) Being convicted or found guilty,

regardless of adjudication, of a crime in any

jurisdiction which directly relates to the

practice of massage or to the ability to

practice massage. Any plea of nolo

contendere shall be considered a conviction

for purposes of this chapter.

12. In this case there is no question that Respondent was

convicted of sexual battery. However, the only evidence tying

the conviction directly to Respondent treating a massage client

is hearsay. The victim did not testify and the officer who

investigated the crime only related what he was told when he took

over the investigation.

13. This direct evidence is unnecessary. When a person

goes in for a massage, there is a level of trust required given

the vulnerable position of the c lient and access that is afforded

the therapist. Any action that undermines the trust required of

a massage therapist is directly related to the therapist's

ability to practice the profession. Committing sexual battery,

whether or not on a massage client , clearly undermines that

trust. The Department has proven the violation of section

480.046(1)(c) by clear and convincing evidence.

14. The Board of Massage Therapy has adopted disciplinary

guidelines in accordance with section 456.079, Florida Statutes ,

to provide notice of a meaning range of penalties to be imposed

for violations of c hapters 456 and 480 and the applicable rules.

The undersigned has reviewed the provisions of Florida

Administrative Code Rule 64B7 - 30.002 in determining the

appropriate p enalty to be determined.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that a final order be entered finding that

Respondent has violated section 480.046(1)(c), Florida Statutes,

and revoking his lic ense to practice massage therapy.

DONE AND ENTERED this 2 8t h day of June , 20 11 , 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 2 8 th day of June , 20 11 .

CO PIES FURNISHED:

Greg S. Marr, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Angel Luis DeJesus, No. 582903

Franklin Correctional Institution

1760 Highway 67 Nort h

Carrabelle, Florida 32322

Anthony Jusevitch, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin C - 06

Tallahassee, Florida 32399 - 3265

Nicholas Romanello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 06

Tallahassee, Florida 32399 - 3265

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.