14-003041PL Department Of Health, Board Of Massage Therapy vs. Hong Yang, Lmt Status: Closed Recommended Order on Friday, October 3, 2014.

Summary: Petitioner proved that Respondent committed sexual misconduct in the practice of massage. Recommend license revocation and $2,500 fine, per discipline guideline rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 14 - 3041PL

HONG YANG, LMT,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearin g was held in the above - styled case on

August 29, 2014, by video teleconference with sites in Tampa and

Tallahassee, Florida, before Elizabeth W. McArthur,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lealand Lane McCharen, Esquire

Cecilie Dale Sykes, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, F lorida 32399 - 3265

For Respondent: Alex Yu , Esquire

Law Office of Alex Yu, P.A.

15255 Amberly Drive

Tampa, Florida 33647

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent committed

sexual misconduct in the practice of massage, and if so, what

discip linary action should be taken against RespondentÓs license.

PRELIMINARY STATEMENT

On April 1, 2014, the Department of Health ( Department or

Petitioner) issued an administrative complaint on behalf of the

Board of Massage Therapy against Respondent Hong Yan g

(Respondent), a licensed massage therapist. The complaint set

forth factual allegations and charges that Respondent committed

sexual misconduct in the practice of massage, and also, that she

had been practicing massage without displaying her license.

Re spondent disputed the facts and requested an

administrative hearing. On June 30, 2014, the matter was

referred to the Division of Administrative Hearings for

assignment of an a dministrative l aw j udge to conduct the

requested hearing.

At the partiesÓ join t request, the final hearing was set for

August 29, 2014, by video teleconference with sites in Tampa and

Tallahassee, Florida, and proceeded as scheduled.

On August 15, 2014, Petitioner moved for leave to file an

amended administrative complaint, to corr ect some dates and to

drop the charge of practicing massage therapy without properly

displaying the massage therapy license. The motion was granted.

Prior to the hearing, the parties filed a Joint Pre - Hearing

Stipulation in which they stipulated to severa l facts that would

not require evidence at hearing. The stipulated facts have been

incorporated in the Findings of Fact below.

At hearing, Petitioner presented the testimony of Kevin

Lapham, a Department investigator and inspector. PetitionerÓs

composite Exhibit 1, a certified copy of RespondentÓs licensure

file (redacted to obliterate personal identifying information) ,

was admitted without objection.

Respondent testified on her own behalf, and did not offer

any exhibits. A certified interpreter/translat or was present and

assisted Respondent with her testimony.

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

September 5, 2014. The deadline to file proposed recommended

orders (PROs) was September 15, 2014. Petitioner timely filed a

PRO; Respo ndent did not file a PRO. PetitionerÓs PRO has been

considered, along with the hearing record, in preparing this

Recommended Order.

FINDING S OF FACT

1. Petitioner is the state agency charged with regulating

the practice of massage therapy in the state of Florida, pursuant

to chapters 20, 456, and 480, Florida Statutes (2013). 1/

2. At all times material to this proceeding, Respondent was

licensed as a massage therapist in Florida, having been issued

license number MA 69679 on or about July 26, 2012. In t he short

period of time since Respondent has been licensed, no prior

disciplinary action has been taken against her license.

3. On December 11, 2013, Respondent was working at LuluÓs

Massage in West Palm Beach, Florida.

4. That same day, Department of He alth investigator/

inspector Kevin Lapham conducted an inspection of LuluÓs Massage,

to determine licensure status of individuals working there and to

determine compliance with licensure requirements.

5. Mr. Lapham entered one of the m a ssage rooms at Lulu Ós

Massage, without knocking first.

6. Mr. Lapham observed the following upon entering the

room: A completely nude male customer was lying on his back on a

massage table. Respondent was standing next to the male, with

her hand on his groin and her face near his groin. Respondent

was uncovered from her waist to her ankles, with her shorts and

underwear pooled around her ankles.

7. When Mr. Lapham entered the room, Respondent reacted by

putting her body over the nude male customerÓs crotch.

8. At hearin g, Mr. Lapham positively identified Respondent,

without question or hesitation, as the exposed woman he saw with

the nude male customer , as described above, at LuluÓs Massage on

December 11, 2013.

9. Mr. LaphamÓs testimony was credible, clear, and

convinc ing.

10. Respondent admitted to the intrusion of the Department

inspector into the massage room where she was with a male

customer on December 11, 2013. Respondent also admitted that

when Mr. Lapham entered the room, both her shorts and her

underwear wer e not in place covering her, because they had been

pulled down her legs.

11. Respondent blame d her male customer for pulling down

her shorts and her underwear so that they were around her ankles,

and claims that she objected to his behavior. RespondentÓs claim

was not credible. Respondent did not step away from the table

out of his reach , leave the room , or even pull up her underwear

and shorts. Instead, Respondent testified that in reaction to

him pulling down her shorts and her underwear, she Ðtried t o

comfort him, asking him donÓt move.Ñ While Respondent was

comforting her nude male customer, the Department inspector

entered the room.

1 2 . Respondent denied that she touched the nude male

customer on his groin, but offered no reasonable explanation fo r

Mr. LaphamÓs contrary testimony.

1 3 . Respondent was arrested by the Juno Police Department

on December 11, 2013, and charged with committing, engaging in ,

or offering to commit prostitution.

1 4 . Respondent testified that the police did not provide

her with an interpreter that afternoon, and she did not

understand why she was arrested. However, no evidence was

offered to prove that the matter was later cleared up, once

Respondent had representation and/or an interpreter to assist her

in connection with the criminal charges. No evidence was offered

to prove the status or disposition of those charges. While no

adverse inferences are drawn from the fact of criminal charges,

RespondentÓs attempt to explain away those charges is not

credited.

15. Responden tÓs testimony characterizing her actions on

December 11, 2013, as lawful and legitimate massage therapy was

not credible . Instead, RespondentÓs partial verification of the

facts observed by Mr. Lapham adds more weight to his clear and

convincing testimony .

CONCLUSIONS OF LAW

1 6 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

1 7 . Petitioner initiated this disciplinary proceeding

pursuant to its auth ority to prosecute complaints charging

violations of the licensing laws governing licensed massage

therapists. § 456.073, Fla. Stat.

1 8 . In this penal proceeding, Petitioner has the burden of

pleading with particularity in the administrative complaint th e

facts and law on which it relies to take disciplinary action

against Respondent. Trevisani v. DepÓt of Health , 908 So. 2d

1108 (Fla. 1st DCA 2005); Cottrill v. Dep't of Ins. , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996); Willner v. Dep't of Prof'l Reg.,

Bd . of Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA 1990). The

amended administrative complaint meets these standards.

19 . In addition, Petitioner has the burden to prove the

complaint's allegations by clear and convincing evidence. Dep't

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 935

(Fla. 1996). As stated by the Florida Supreme Court:

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 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 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 , 492 So. 2d 797, 800 (Fla. 4th DCA 1983) ) . Accord

Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc. , 590

So. 2d 98 6, 988 (Fla. 1st DCA 1991) ("Although this standard of

proof may be met where the evidence is in conflict, . . . it

seems to preclude evidence that is ambiguous . ").

2 0 . Respondent is charged with engaging in sexual

misconduct in the practice of massage, in violation of sections

480.0485 and 456.063(1), Florida Statutes, for which Respondent

is subject to discipline pursuant to sections 480.046(1)(p) and

456.072(1)(v), Florida Statutes.

2 1 . Section 480.0485 provides as follows:

The massage therapist - pat ient 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 prohibit ed.

A similar, but less specific, provision prohibiting Ðsexual

misconductÑ in the practice of a health care profession is set

forth in section 456.063(1).

2 2 . Section 480.033(3), Florida Statut es, defines ÐmassageÑ :

ÐMassageÑ means the manipulation of the soft

tissues of the human body with the hand,

foot, arm, or elbow, whether or not such

manipulation is aided by hydrotherapy,

including colonic irrigation, or thermal

therapy; any electrical or mechanical device;

or the application to the human body of a

chemical or herbal preparation.

2 3 . When Respondent was discovered tending to a completely

nude male customer, with her hand on his groin and her face near

his groin, Respondent was engaged in sexual activity with her

patient, outside the scope of leg itimate, lawful massage

practice. Respondent does not argue otherwise, and instead

denied that she was engaged in these activities. As found above,

that denial was not credible.

2 4 . RespondentÓs admission that she was nude below the

waist, with her shor ts and her underwear pulled down below her

ankles, is an admission that Respondent was engaged in sexual

activity outside the scope of legitimate lawful massage practice.

Respondent does not argue that it is within the scope of

legitimate lawful massage p ractice for a massage therapist to

provide services while nude from the waist down. Instead,

Respondent attempted to blame her exposed state on her nude male

customer. As found above, that explanation was not credible.

2 5 . Petitioner proved by clear and convincing evidence that

Respondent was engaged in sexual misconduct in the practice of

her health care profession , massage therapy , in violation of

sections 480.0485 and 456.063(1). Respondent is subject to

discipline for violating these statutes, pursu ant to sections

480.046(1)(p) and 456.072(1)(v).

2 6 . The disciplinary guidelines rule adopted by

RespondentÓs licensing board, the Board of Massage Therapy,

offers guidance for considering the appropriate penalty. This

rule provides that in the normal ca se, the discipline for a

violation of the sexual misconduct prohibition in either section

480.0485 or section 456.063(1) should be license revocation plus

a fine of $2,500.00. Fla. Admin. Code R. 64B7 - 30.002 .

2 7 . Rule 64B7 - 30.002(3) sets forth possible a ggravating and

mitigating circumstances that might warrant deviation from the

normal penalty. In this case, no particularly weighty factors

were proven either way. Respondent has no prior disc ipline , but

she has only been licensed since 2012. The offens e is a very

serious breach of the profession, but that is taken into account

in the disciplinary guideline. The normal penalty should apply .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Massage Therapy enter a

final order imposing a fine of $2,500.00 against Respondent, Hong

Yang, and revoking her license to practice massage therapy.

DONE AND ENTERED this 3rd day of October , 2014 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

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 C lerk of the

Division of Administrative Hearings

this 3rd day of October , 2014 .

ENDNOTE

1/ All references to Florida Statutes are to the 2013

codification, the law in effect when the actions at issue

occurred.

COPIES FURNISHED:

Alex Yu, Esquire

Law Off ice of Alex Yu, P.A.

Somerset Professional Park

15255 Amberly Drive

Tampa, Florida 33647

(eServed)

Cecilie Dale Sykes, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Jennifer A. Tschetter, General Cou nsel

Department of Health

4052 Bald Cypress Way , Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Christy Robinson, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way , Bin C - 06

Tallahassee, Florida 32399 - 3257

(eServ ed)

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.