15-001103 Department Of Health, Board Of Massage Therapy vs. Queen Spa, Inc. Status: Closed Recommended Order on Monday, October 5, 2015.

Summary: Penis manipulation is not part of a lawful massage. Dept. proved Resp. engaged in sexual misconduct during massage. Resp. advertisements induced sexual misconduct. Resp. conducted massage at unlicensed location.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No . 15 - 1103

QUEEN SPA, INC.,

Respondent.

_______________________________/

DEPARTMENT OF HEALTH,

BOARD OF MASSAGE THERAPY,

Petit ioner,

vs. Case No. 15 - 1565PL

JIANPING LIU, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Heari ngs (DOAH) heard this case by

video teleconference on August 5, 2015 , at sites in Fort Myers

and Tallahassee, Florida.

APPEARANCES

For Petitioner: Louise Wilhite - St . Laurent, Esquire

Shoshana Jean Silver , Esquire

Lucas Lawrence May, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respond ent: Vana Renejuste, Esquire

Renejuste Law and Associates

3049 Cleveland Avenue, Suite 140

Fort Myers, Florida 33901

STATEMENT OF THE ISSUE S

A. Did Respondent, Jianping Liu, L.M.T. (Ms. Liu), induce

patients N.D. and J.H. to engage in sexual activity or engage in

sexual activity outside the scope of practice or the scope of

g enerally accepted examination or treatment ?

B. Did Ms. Liu massage patient N.D. at a location not

licensed as a m assage establishment and without exemption?

C. Did sexual misconduct occur in Respondent , Queen Spa,

Inc.Ós (Queen Spa) , massage establishment?

D. Did Queen SpaÓs backpage.com and anyitem.org

advertisements induce or attempt to induce, or engage or atte mpt

to engage, clients in unlawful sexual misconduct?

E. Did Queen Spa fail to include its license number in its

backpage.com and anyitem.com advertisements?

PRELIMINARY STATEMENT

Petitioner, Department of Health (Department), Board of

Massage Therapy, f iled its Administrative Complaint against

Ms. Liu on November 7, 2014, and filed a separate complaint

against Queen Spa on December 30, 2014 . The c omplaint against

Ms. Liu alleges she performed sexual activities with two patients

in violation of section 480.0485, Florida Statutes (2014). 1/ The

complaint also alleges Ms. Liu performed a massage at an

unlicensed location without qualifying exemption in violation of

section 480.046(1)(o).

The c omplaint against Queen Spa alleges sexual activity

occurred with in its establishment in violation of Florida

Administrative Code Rule 64B7 - 26 .010. The Complaint also alleges

Queen Spa advertised Ðerotic pleasure , Ñ without including its

license number in violation of section s 480.046(1)(e) and

480.0465.

Ms. Liu and Qu een Spa requested a formal administrative

hearing. The Department referred the matters to DOAH to conduct

the hearings. The case s were consolidated. The hearing was

noticed for April 15, 2015, and was reset for August 5, 2015.

The undersigned conducted t he hearing on August 5, 2015.

Four witnesses testified for the Department: Christy Robinson;

Patient N.D.; Jennifer Mason; and Ms. Liu. The Department

submitted Patient J.H.Ós deposition (with attached exhibits) in

lieu of live testimony as Exhibit 15. The Department's Exhibits

3, 10, 13, 15, and 18 through 21 were admitted in evidence. The

parties timely filed proposed recommended orders. They were

considered in preparation of this Recommended Order .

FINDING S OF FACT

1. Section 20.43 and chapters 456 and 464, Florida

Statutes, charge the Department with licensing and regulation of

massage therapy.

2. At all times material to the allegations in the

Administrative Complaint, Ms. Liu was a licensed massage

therapist in the State of Florida. She holds li cense MA 68834.

3. At all times material to the allegations in the

Administrative Complaint, Queen Spa was a licensed massage

therapy establishment in the State of Florida. It holds license

MM 32567 registered at 10915 Bonita Beach Road, U nit 1121, Bonit a

Springs, Florida 34135 , and license MM 32546 registered at

51 9th Street South, Naples, Florida 34102.

4. Patient N.D. was a criminal investigation detective for

the narcotics and vice division of Lee County SheriffÓs Office.

5. On March 27, 2014, N .D., as part of an undercover

investigation, scheduled an appointment for a massage at

Ms. LiuÓs home, 9951 Utah Street, Bonita Springs, Florida 34135.

6. During the massage , Ms. Liu touched N.D.Ós penis and

asked if he wanted it massaged. N.D. offered an additional

$50 .00 tip and Ms. Liu began masturbating his penis. Ms. Li u was

charged with prostitution. On April 30, 2014, Ms. Li u entered

into a deferred prosecution agreement with the Lee County State

AttorneyÓs Office.

7. Ms. LiuÓs home on Utah St reet has a home occupational

license issued by the city for a massage therapy administration

office. I t is not a licensed massage establishment.

8. J.H. is a police officer in the crime suppression unit

for the City of Naples, Florida. On May 9, 2014, the Naples

Police Department began investigating Ms. LiuÓs massage parlor.

9. On July 24, 2014, J.H., as part of an undercover

investigation, scheduled a massage appointment with Ms. Liu at

the Queen Spa in Naples. After the massage , J.H. gave Ms. Liu a

$20 .00 tip and she gave him a separate business card. She

explained this card was for Ðspecial customersÑ and had a

different phone number th a n her regular card.

10. J.H. scheduled a second massage for July 29, 2014. At

some point near the end of that m assage , J.H. asked if Ms. Liu

offered special or extra services. Ms. Liu replied by asking if

he was trouble or a cop. J.H. asked how much it would cost, but

Ms. Liu did not take additional payment. Ms. Liu then began

masturbating J.H.Ós penis until he ejaculated.

11. Ms. Liu contends that penis manipulation is part of a

Ðfull bodyÑ massage. But she testified during the hearing that

this was an additional service to the full body massage.

Further, she testified that she only conducted each Ðextra

ser vice , Ñ because J.H. and N.D. requested it. This establishes

that masturbation was not part of the massage. It was a sexual

service. Testimony of the expert witness Jennifer Mason also

proves this fact.

12. Backpage.com is a classified advertising websi te that

contains listings explicitly for prostitution. The adult

entertainment section of backpage.com is linked to the majority

of the Naples police investigations into prostitution.

13. Ms. Liu posted ads for Queen Spa on backpage.com and

anyitem.org. The backpage.com ad titled Ðerotic pleasureÑ was

listed in the adult services section. The anyitem.org ad titled

Ðerotic pleasureÑ was listed in the escort section. Ms. Liu

contends the postings did not advertise sexual services and that

the application on her phone mistranslated the word erotic from

Mandarin to English. However , the character of backpage.com and

posting the advertisements as adult services , rather than as

massage services , supports the conclusion the postings advertised

sexual activiti es.

14. The backpage.com and anyitem.com advertisements did not

include the license number of Queen Spa.

15. Touching of the genitalia is not within the scope of a

full body massage. Stimulation of the genital area is considered

sexual misconduct. It is not part of an ethical massage. There

is no therapeutic value to massaging a clientÓs penis.

16. Sexual innuendo or stimulation is a problem in massage

therapy. The industry has worked to remove it from the practice

to create a safe and therapeut ic environment. Training of

massage therapists requires them to Ðdecline, leave the room,

terminate the massageÑ when sexual stimulation is requested by a

patient.

17. When discussing Ðextra services , Ñ Ms. Liu told J.H.

about her friend who got into trou ble after performing certain

acts and that the friend had lost her license ; Ðno license, no

jobÑ.

18. Ms. Liu engaged in sexual misconduct with J.H. just

three months after she signed a deferred prosecution agreement

disposing of the Lee C ounty charges.

C ONCLUSIONS OF LAW

19. DOAH has jurisdiction over the subject matter and the

parties to this action in accordance with sections 120.569 and

120.57(1), Florida Statutes (2015).

20. Section 480.046(1)(p) authorizes the B oard of Massage

Therapy (Board) to i mpose discipline against a license e for

violating any provision of chapter s 480 and 456, or the rules

adopted by the Board.

21. Section 480.0485 prohibits sexual misconduct in the

practice of massage therapy. ÐSexual 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 outsid e the scope of practice or the scope of generally

accepted examination or treatment of the patient.Ñ

22. Section 480.046(1)(o) authorizes the B oard to impose

discipline against a license e for Ð[ p ]racticing massage at a

site, location, or place which is not duly licensed as a massage

establishment, except that a massage therapist, . . . may provide

massage services . . . at the residence of a client, at the

office of the client, at a sports event, at a convention, or at a

trade show.Ñ

23. Rule 64B7 - 26.01 0, ÐabsolutelyÑ prohibits sexual

activity by any person or persons in any massage establishment.

Sexual activity is defined as Ðdirect or indirect physical

contact . . . which is intended to erotically stimulate either

person or both or which is likely t o cause such stimulation and

includes . . . masturbation. For purposes of this subsection,

masturbation means the manipulation of any body tissues with the

intent to ca u se sexual arousal.Ñ

24. Section 480.046(1)(e) authorizes the board to impose

discipl ine against a license e for Ð[a ]dvertising to induce or

attempt to induce, or to engage or attempt to engage, the client

in unlawful sexual misconduct as described in s ection 480.0485.Ñ

25. Section 480.0465 requires each licensed massage

establishment to i nclude its license number in any advertisement

of massage services.

26. This is a proceeding to take disciplinary action

against Ms. LiuÓs massage therapy license and Queen SpaÓs massage

therapy establishment license. Because this is a penal

proceeding, the Department must prove its allegations by clear

and convincing evidence. Nair v. Dep't of Bus. & Prof'l Reg.,

Bd. of Med. , 654 So. 2d 205 (Fla. 1st DCA 1995). As the Supreme

Court of Florida stated , quoting Slomowitz v. Walker , 429 So. 2d

797, 800 (F la. 4th DCA 1983):

[C]lear 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 lackin g 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 S o. 2d 579, 590 (Fla. 2005).

27. In disciplinary proceedings, the statutes and rules

allegedly violated must be strictly construed in favor of the

licensee. Elmariah v. Dep't of Prof'l Reg. , 574 So. 2d 164 (Fla.

1st DCA 1990); Taylor v. Dep't of Prof'l R eg. , 534 So. 2d 782,

784 (Fla. 1st DCA 1988).

28. Clear and convincing evidence proved that Ms. Liu

agreed to engage in and engaged in sexual activity with J.H.

during his massage at Queen Spa on July 29, 2015.

29. Clear and convincing evidence proved th at Ms. Liu

agreed to and engaged in sexual activity with N.D. during his

massage at Ms. LiuÓs home on March 27, 2014.

30. Clear and convincing evidence established that the

advertisements for Queen Spa on backpage.com and anyitem.org were

to induce sexual misconduct and did not include its license

number.

31. Section 480.046 permits the Board of Massage Therapy to

impose the following penalties: suspension or permanent

revocation of a license; restriction of practice of license;

imposition of an adminis trative fine; issuance of a reprimand or

letter of concern; placement of the licensee on probation for a

period of time; corrective action; and/or requirement that the

practitioner undergo remedial education.

32. Rule 64B7 - 30.002, establishes the penalty guidelines

for violations. Ms. Liu violated sections 480.0485 and

480.046(1)(o).

33. The penalty for violating section 480.0485 is a

$2,500 .00 fine and revocation of the massage therapistÓs license.

34. The penalty for violating section 480.046(1)(o) is a

$250 .00 fine.

35. Queen Spa violated sections 480.046(1)(e) , 480.0465 ,

and section 480.046(1)(p) by violating Rule 64B7 - 26.010.

36. The penalty for violating section 480.046(1)(p) by

violating Rule 64B7 - 26.010, is a $2,500 .00 fine and revocation o f

the license.

37. The penalty for violating section 480.046(1)(e) is a

$1,000.00 fine and suspension of the license.

38. The penalty for violating section 480.0465 is a $500.00

fine and reprimand of the license.

39. Rule 64B7 - 30.002(4) provides aggra vating and mitigating

circumstances the board may use to deviate from penalties for

violations charged:

(a) The danger to the public;

(b) The length of time since the violation;

(c) The number of times the licensee has

been previously disciplined by t he Board;

(d) The length of time licensee has

practiced;

(e) The actual damage, physical or

otherwise, caused by the violation;

(f) The deterrent effect of the penalty

imposed;

(g) The effect of the penalty upon the

licensees livelihood;

(h) Any effort of rehabilitation by the

licensee;

(i) The actual knowledge of the licensee

pertaining to the violation;

(j) Attempts by licensee to correct or stop

violation or refusal by licensee to correct

or stop violation;

(k) Related violations against licensee in

another state including findings of guilt or

innocence, penalties imposed and penalties

served;

(l) Actual negligence of the licensee

pertaining to any violation;

(m) Penalties imposed for related offenses

under subsections (1) and (2) abov e;

(n) Any other mitigating or aggravating

circumstances.

40. Factors ( f ), (i), (j), and (n) are relevant in this

case. They weigh as aggravating factors. Ms. Liu advertised and

preformed sexual services at Queen Spa less than three months

after sign ing a deferred prosecution agreement for prostitution

based on sexual services performed at her home. Ms. Liu knew

that performing sexual services would jeopardize her license.

These factors emphasize that it is unlikely that Ms. Liu will

change her cond uct. Ms. LiuÓs conduct directly interferes with

the safe practice of massage therapy by others .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Department of Health,

Board of Massage Therap y , enter a final order : finding that

Respondent, Jianping Liu , L.M.T ., violated section s 480.0485 and

480.046(1)(o), Florida Statutes ; r evoking her license ; requiring

the payment of an administrati ve fine s in the amount of

$2,750.00 ; and awarding costs fo r the investigation and

prosecution of this case to the Department.

Based on the foregoing Findings of Fact and Conclusions of

Law, it is also RECOMMENDED that Petitioner, Department of

Health, Board of Massage Therapy , enter a final order : finding

that R espondent, Queen Spa, Inc., violated sections 480.046(1)(e)

and 480.0465, Florida Statutes, and Florida Administrative Code

Rule 64B7 - 26.010 ; r evoking its license ; requiring the payment of

an administrati ve fine in the amount of $4 , 000.00 ; and awarding

cos ts for the investigation and prosecution of this case to the

Department.

DONE AND ENTERED this 2nd day of October , 2015 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of A dministrative 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 2nd day of October , 2015 .

ENDNOTE

1/ All citations to the Florida Statutes are to the 2014 edition

unless stated otherwise .

COPIES FURNISHED:

Vana Renejuste, Esquire

Renejuste Law and Associates

3049 Cleveland Avenue, Suite 140

Fort Myers, Florida 33901

(eServed)

Lucas L awrence May, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Louise Wilhite - St . Laurent, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(e Served)

Shoshana Jean Silver, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Daniel Hernandez, Interim General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

(eServed)

Christy Robinson, Executive Director

Department of Health

Bin C - 06

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submi t 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.