14-002552PL Department Of Health, Board Of Massage Therapy vs. Hong Tang, L.M.T. Status: Closed Recommended Order on Wednesday, December 31, 2014.

Summary: Petitioner failed to prove that massage therapist induced or tried to induce sexual activity when undercover deputy requested sex and Respondent agreed. Absence of physical contact precludes finding massage establishment guilty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case Nos. 14 - 2551

14 - 2552PL

HONG TANG LONG LIFE THERAPY

MASSAGE AND HONG TANG, L.M.T. ,

Respondent s .

_______________________________/

RECOMMENDED ORDER

On November 10, 2014, Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing by videoconference in West Palm Beach

and Tallahassee, Florida.

APPEARANCES

For Petitioner: Karine Gialella, Esquire

Casie Barnette, Esquire

Jennifer Fortenberry, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tall ahassee, Florida 32399 - 3265

For Respondents: Jack A. Goldberger, Esquire

Atterbury, Goldberger & Weiss, P.A.

Suite 1400

250 Australian Avenue , South

West Palm Beach, Florida 33401

Leonard Feuer, Esquire

Leonard Feuer, P.A.

Suite 1400

250 Australian Avenue , South

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE S

The issues in both cases i s whether the respondents violated

section 480.046(1)(o), Florida Statutes (2012), which prohibits a

violation of any provision within chapter 480 or any rule adopted

pursuant to chapter 480, and, if so, what penalty should be

imposed. In DOAH Case 14 - 255 2PL, the specific issue is whether

Respondent Hong Tang (Respondent Tang) violated section 480.0485

by using the massage therapist - patient relationship to induce or

attempt to induce patients to engage in sexual activity outside

the scope of the practice o f ma ssage therapy. In DOAH Case

14 - 2551, the specific issue is whether Respondent Tang owned and

practiced massage therapy at Respondent Hong Tang Long Life

Therapy Massage (HTLL T M) and whether Respondent Tang violated

Florid a Administrative Code Rule 64B 7 - 26.010(2) by engaging in,

or attempting to engage in, sexual activity, indirectly or

directly, within the massage establishment and outside the scope

of her practice of massage therapy.

PRELIMINARY STATEMENT

In DOAH Case 14 - 2552PL, the Administrative Com plaint alleges

that Respondent Tang is licensed to practice massage therapy in

Florida. In July and August 2013, Respondent Tang allegedly

owned Respondent HTLLT M where she practiced massage therapy.

On August 22, 2013, a deputy sheriff with the Palm Beac h

County Sheriff's Office allegedly visited Respondent HTLL TM where

he encountered Respondent Tang. The deputy allegedly asked the

price for a massage, and Respondent Tang allegedly answered, $50

for one half - hour. Respondent Tang then allegedly moti oned with

her hand cupped in an up and down motion, indicating that she

would manually masturbate the deputy's penis for an additional

$30.

The Administrative Complaint alleges that Respondent Tang

violated section 480.046(1)(o) "by using the massage therapist -

patient relationship to induce or attempt to induce patients to

engage in sexual activity outside the scope of the practice of

massage therapy."

In DOAH Case 14 - 2551, the Administrative Complaint alleges

that Respondent HTLLTM was licensed to operate as a massage

establishment, holding license number MM 28993, and Respondent

Tang owned and practiced massage therapy at Respondent HTLLTM.

The Administrative Complaint also alleges the August 22 incident

described above.

The Administrative Complaint alleges that Respondent HTLLTM

violated section 480.046(1)(o) by violating rule 64B7 - 26.010

through the actions of its owner, Respondent Tang, "who engaged

in, or attempted to engage in, sexual activity, either directly

or indirectly, within the massage establish ment and outside the

scope of her practice of massage therapy."

Respondents requested a formal hearing.

At the hearing, Petitioner called five witnesses and offered

into evidence three exhibits: Petitioner Exhibits 9, 10, and 14,

which were admitted. Res pondents called no witnesses and offered

no exhibits.

The court reporter filed the transcript on November 26,

2014. The parties filed their proposed recommended order s on

December 26, 2014.

FINDING S OF FACT

1. Respondents hold Florida massage therapy l icenses. At

all material times, Respondent Tang, a 50 - year - old female who was

born in China and moved to t he United States in 2008, owned a nd

performed massage therapy at Respondent HTLLTM.

2. In May 2013, an advertisement appeared in backpage.com

with t he telephone number and address of Respondent HTLLTM,

although the ad named neither respondent. The ad described

massage services and prices and contained three photographs, but

neither the text nor the photographs contained any sexual content

or promise of sexual activity .

3. On August 22, 2013, at about 10:00 a.m., a deputy

sheriff of the Palm Beach County Sheriff's Office telephoned

Respondent HTLLTM and spoke with Respondent Tang about obtaining

a massage. There is no indication of any sexual content in this

brief conversation.

4. Shortly after concluding his conversation with

Respondent Tang, the deputy sheriff, who was dressed in casual

clothes, drove to Respondent HTLLTM, where he entered the front

door, posing as a customer. No one else was pres ent in the

establishment except Respondent Tang, who invited the deputy into

a massage room .

5. Nothing in the massage room indicated the availability

of sexual activity. In the corner of the room was a basket. The

parties disputed whether the basket contained sexual aids. I t is

unnecessary to determine the nature of the basket's contents

because t he deputy testified that he saw no sexual aids on

entering the massage room and the contents of the basket were not

visible unless someone stood beside the basket and looked down.

6. Once they were in the massage room, the deputy and

Respondent Tang negotiated a price for a massage, which was $50

for one half - hour. The deputy asked if the massage was "full

service." This is the first reference to sexual ac tivity in any

conversation between the deputy and Respondent Tang.

7. Respondent Tang responded with a hand motion, in which

she formed a circle with her hand while moving it up and down,

indicating by gesture that she would manually masturbate the

depu ty's penis. Respondent Tang did not verbally describe the

service, but said that the additional cost would be $30.

8. Signaling his intent to purchase a massage with

masturbation of his penis, t he deputy offered Respondent Tang $80

in the form of four $2 0 bills. After Respondent Tang accepted

the payment, the deputy excused himself on some pretext, allowing

other law enforcement officers to enter the establishment and

execute a search warrant.

9. Manual masturbation of the deputy's penis would have

been outside the scope of practice of massage.

CONCLUSIONS OF LAW

10. DOAH has jurisdiction. §§ 120.569, 120.57(1), and

480.046(4), Fla. Stat. (2012).

11. Section 480.0485 prohibits "sexual misconduct in the

practice of massage therapy." The statute defi nes "sexual

misconduct" as the use by the therapist of the massage therapist -

patient 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."

12. Florida Administrative Code Rule 64B7 - 26.010 provides

in part:

(1) Sexual activity by any person or persons

in any massage establishment is absolutely

prohibited.

(2) No massag e establishment owner shall

engage in or permit any person or persons to

engage in sexual activity in such ownerÓs

massage establishment or use such

establishment to make arrangements to engage

in sexual activity in any other place.

* * *

(4) As used in this rule, Ðsexual activityÑ

means any direct or indirect physical contact

by any person or between persons which is

intended to erotically stimulate either

person or both or which is likely to cause

such stimulation . . . . For purposes of

thi s subsection, masturbation means the

manipulation of any body tissue with the

intent to cause sexual arousal. As used

herein, sexual activity can involve the use

of any device or object . . . .

13. Section 480.046(1)(o) provides for disciplinary action,

as specified in section 456.072(2), for a licensee's "[v]iolating

any provision of this chapter or chapter 456, or any rules

adopted pursuant thereto."

14 . Petitioner must prove the material allegations by clear

and convincing evidence. Dep't of Ban k ing & Fin. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996).

15 . A respondent may not be found guilty of an offense with

which she has not been charged. See, e.g. , Trevisani v. Dep't of

Health , 908 So. 2d 1108 (Fla. 1st DCA 2005) (administrative

compl ain t charged physician with a failure to make medical

records; proof of a failure to retain medical records cannot

support a finding of guilt).

16 . The charge against Respondent Tang involves sexual

misconduct. Petitioner has proved by clear and convinci ng

evidence that Respondent Tang attempted to engage the deputy in

sexual activity outside the scope of practice, but Petitioner

never charged Respondent Tang with this offense .

17 . Instead, Petitioner charged Respondent Tang only with

inducing or atte mpting to induce the deputy to engage in sexual

activity. The first definition of "induce" in the online Merriam

Webster dictionary is "to move by persuasion or influence." 1 /

According to the deputy's testimony, he initiated the issue of

sexual activity. Up to the point that the deputy asked how much

a full - service massage would be , Respondent Tang had not

suggested sexual activity -- either directly in her conversations

with the deputy or indirectly in the backpage .com ad vertisement.

Even assuming that t he basket in the massage room contained

sexual aids, it could not serve as an inducement to engage in

sexual activity because the basket's contents were not readily

visible. Respondent Tang's first allusion to sexual activity was

to accept the deputy's of fer to engage in sexual activity.

18 . On these facts, the causative agent of sexual activity,

if it had taken place, would have been the deputy, not Respondent

Tang. See St. Johns River Water Mg m t. Dist. v. Fernberg

Geological Servs. , 784 So. 2d 500, 5 05 (Fla. 5th DCA 2001). An

accepted counteroffer does not relieve the original offeror of

the fact of having induced or attempted to have induced a

transaction. See, e.g. , Ciam p i v. Ogden Chrysler Plymouth , 262

Ill . App. 3d 94, 634 N.E. 2d 448 (1994).

19 . The present case resembles the case of an undercover

law enforcement officer "soliciting" an offer to engage in sex

with a minor, and the perpetrator responding to the solicitation

being found guilty of soliciting sex with a minor. These were

the facts in State v. Murphy , 124 So. 3d 323 (Fla. 1st DCA 2013),

in which the defendant was charged with using a computer service

to solicit a parent to engage in sexual activity with the

parent's child.

20 . The defendant responded to an online advertisement on

craigslist posted by a law enforcement officer posing as the

child's father. The title of the ad was: "Need a discreet male

for young female." The defendant responded with an email asking

if the poster was still looking for a man. The law enforcement

officer responded by indicating that the child had liked the

picture that the defendant had sent, had had a bad sexual

experience previously, and was looking for an older man. The

email concluded with a request that the defendant tell more about

himself.

21 . The defendant replied b y stating that he was a 22 - year -

old massage therapist, "really down to earth and chill." He

loved "music and . . . the outdoors." He would show the child "a

good time" and "not take advantage of her." He would show her

that " all guys aren't pieces of shit." He also promised to use

protection.

22 . The defendant was convicted of the charge. On appeal,

the court affirmed, rejecting the defendant's argument that the

"father," not the defendant, solicited the unlawful sexual

con tact; the defendant merely accepted the offer. The court

aptly pointed out that the defendant had embarked on the task of

"soliciting the father's consent and trying to close the deal."

Id. at 328.

23 . Respondent Tang engaged in no such inducing behavio r.

At most, she reduced the scope of the sexual activity by

exhibiting a willingness only to masturbate the deputy's penis

rather than provide the full - service sex about which he had

asked.

24 . The charge against Respondent HTLLTM involves sexual

activ ity, as distinguished from sexual misconduct. Sexual

activity is physical contact intended to cause erotic

stimulation. The rule addresses direct and indirect physical

contact, but indirect contact presumably means that the contact

is mediated through cl othing or a device; the modifier,

"indirect , " does not eliminate the requirement of some form of

physical contact.

25. As noted above, no physical contact of any nature took

place between the deputy and Respondent Tang, so the liability of

Respondent HT LLTM depends on whether the rule also imposes

liability on the massage establishment for some form of attempted

physical contact by Respondent Tang. As Petitioner noted in its

proposed recommended order, disciplinary provisions must be

construed strictly , and any ambiguities must be construed in

favor of the licensee. See, e.g. , McClung v. Criminal Justice

Standards & Training C omm'n , 458 So. 2d 887, 888 (Fla. 5th DCA

1984).

26. The Administrative Complaint and Petitioner's

Unilateral Pre - H earing Stipula tion filed on August 18, 2014,

mention only rule 64B7 - 26.010(1), (2), and (4) as grounds for

disciplining Respondent HTLLTM . Rule 64B7 - 26.010(1) prohibits

sexual activity by any person in a massage establishment, and

rule 64B7 - 26.010(4) defines "sexual ac tivity." Obviously, the

definitional provision, in itself, does not impose liability on a

massage establishment. The clear effect of rule 64B7 - 26.010(1)

is to prohibit a person from performing sexual activity in a

massage establishment ; the prohibition a pplies to the person, not

the establishment. The reference to "massage establishment" in

this provision identifies the location of the prohibited sexual

activity and does not attempt to establish some form of vicarious

liability of the establishment for t he prohibited act of person.

Consistent with the authority in McClung , supra , it is impossible

to read rule 64B7 - 26.010(1) as imposing a duty on the

establishment.

27. Rule 64B7 - 26.010(2) arguably impose s a duty on the

massage establishment by its refere nce to the "massage

establishment owner." But this provision prohibits the owner

from engaging in or permitting any person to engage in sexual

activity -- meaning actual physical contact -- in the owner's massage

establishment. Although Petitioner proved tha t Respondent Tang

owned Respondent HTLLTM, it did not prove physical contact

between Respondent Tang and the deputy . Rule 64B7 - 26.010(2) also

prohibits "arrangements to engage in sexual activity," so as to

capture attempts that did not result in actual ph ysical contact,

but this prohibition applies only to arrangements for sexual

activity offsite.

28. The sole subsection omitted from the Administrative

Complaint and Unilateral Pre - Hearing Stipulation is rule 64B7 -

26.010(3), which prohibits a "licensed mas sage therapist" from

using the therapist - client relationship " to engage in sexual

activity with any client or to make arrangements to engage in

sexual activity with any client ." The reference to making

arrangements to engage in sexual activity is not limi ted to

offsite locations, so this rule would capture attempts to engage

in actual physical contact at the establishment , such as what

occurred in this case. But rule 64B7 - 26.010(3) is not available

as a basis for proving the liability of Respondent HTLLTM because

the rule applies to the therapist, not the establishment, and,

probably for this reason, Petitioner never pleaded this rule

provision as a basis for disciplining Respondent HTLLTM.

RECOMMENDATION

It is

RECOMMENDED that the Board of Massage Therapy enter a final

order finding Respondent Hong Tang and Respondent Hong Tang Long

Life Therapy Massage not guilty of the allegations contained in

the administrative complaints.

DONE AND ENTERED this 31st day of December , 2014 , in

Tallahassee, Leon County, Fl orida.

S

ROBERT E. MEALE

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 31st day of December , 2014 .

ENDNOTE

1 / Merriam Webster online dictionary at http://www.merriam -

webster.com/dictionary/induce.

COPIES FURNISHED:

Leonard Feuer, Esquire

Leonard Fe uer, P.A.

Suite 1400

250 Australian Avenue , South

West Palm Beach, Florida 33401

(eServed)

Jack Alan Goldberger, Esquire

Atterbury, Goldberger & Weiss, P.A.

Suite 1400

250 Australian Avenue , South

West Palm Beach, Florida 33401

(eServed)

Mitchell J. Be ers, Esquire

Mitchell J. Beers and Associates, P.A.

Prosperity Gardens, Suite 204

11380 Prosperity Farms Road

Palm Beach Gardens, Florida 33410

Casie Marye Barnette, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Christy Robinson, Executive Director

Board of Massage Therapy

Department of Health

Bin C - 06

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Jennifer Tschetter, General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tal lahassee, Florida 32399 - 1701

(eServed)

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.