15-001175PL Department Of Health, Board Of Massage Therapy vs. John D. Nielsen-Collins, L.M.T. Status: Closed Recommended Order on Monday, June 22, 2015.

Summary: Respondent engaged in sexual misconduct in the practice of massage therapy. Respondent should be fined $2,500.00, and his license to practice massage therapy should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 15 - 1175PL

JOHN D. NIELSEN - COLLINS, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 1, 2015, a hearing was held by video teleconference

at locations in West Palm Beach and Tallahassee, Florida, before

F. Scott Boyd, an Administrative Law Judge assigned by the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Li ndsay Annette Wells Grogan, Esquire

Louise Wilhite - St Laurent, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: John D. Nielsen - C ollins, L.M.T., pro se

321 Fordham Drive

Lake Worth, Florida 33460

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent engaged in

sexual misconduct in the practice of massage therapy in vi olation

of section 480.0485, Florida Statutes, and if so, what is the

appropriate sanction.

PRELIMINARY STATEMENT

On March 5, 2015, Petitioner, Department of Health

(Department) , issued an Amended Administrative Complaint against

Respondent, John D. Niels en - Collins, L.M.T. The complaint charged

Respondent with s exual misconduct in the practice of massage

therapy, in violation of section 480.0485. Respondent disputed

material facts alleged in the complaint and requested an

administrative hearing.

At hear ing, Petitioner offered seven exhibits, admitted as

Exhibits P - 1 through P - 7. These included the deposition of

Ms. Iris Burman, L.M.T., who was unavailable as a live witness.

Petitioner also offered the testimony of Ms. Amy Senior,

investigation manager at the Department; S.T., complainant and

patient at Village Chiropractic and Healing Arts Center (VCHAC);

and Ms. Samantha Trevegno, office manager at VCHAC. Respondent

testified himself and offered the testimony of his mother,

Ms. Annetta Nielsen, L.M.T. Respondent also offered three

exhibits, admitted as Exhibits R - 1 through R - 3.

The one - volume final hearing T ranscript was filed on June 4,

2015. Petitioner timely filed a P roposed R ecommended O rder on

June 15, 2015. It was considered in preparation of this

Recommended Order.

Unless otherwise indicated, citations to the Florida Statutes

or rules of the Florida Administrative Code refer to the versions

in effect on September 22, 2014 , the date that the violation was

allegedly committed.

FINDINGS OF FACT

1. The Department of Health, Board of Massage Therapy, is

the state agency charged with regulating the practice of massage

therapy in the state of Florida, pursuant to section 20.43, and

chapters 456 and 480, Florida Statutes.

2. At all times mate rial to this proceeding, Mr. John D.

Nielsen - Collins was licensed as a massage therapist in Florida,

having been issued license number MA 63151.

3. At all times material to this proceeding, Mr. Nielsen -

Collins worked as an independent contractor at VCHA C in West Palm

Beach, Florida.

4. S.T., an adult female, started receiving massages at

VCHAC in 2012. Her physical therapist had recommended massage to

help manage some scarring associated with endometriosis and

pelvic adhesive disease. S.T. would rec eive a standard Ðdeep

tissueÑ full body massage about every week or ten days, almost

always from Mr. Nielsen - Collins.

5. On September 22, 2014, S.T. went to VCHAC for a massage .

She greeted Mr. Nielsen - Collins. He then left the room while she

got undr essed. She la id face - up on the massage table, covered with

draping. Mr. Nielsen - Collins began the massage as usual,

massaging her neck, arms, and legs. She then flipped over to a

prone position and he massaged her back and upper portions of her

buttocks with firm kneading, as he always did.

6. Mr. Nielsen - Collins then began to massage the lower

portions of her buttocks. Rather than kneading, it was more of a

light rub, which S.T. described as much more ÐsensualÑ in nature.

Mr. Nielsen - Collins used b oth hands on either side of S.T.'s

buttocks to spread the cheeks and expose her anus. In

progressive steps, he moved his hands closer and closer toward

S.T.Ós anus, finally rubbing it through her thong. This contact

was not accidental. S.T. flinched , an d Mr. Nielsen - Collins

removed his hands from her buttocks.

7. S.T. felt uncomfortable, but she was trying to convince

herself that it was just a mishap. She Ðlet it go because when I

flinched, he did move away.Ñ

8. The draping was moved to expose S.T.Ós right leg, and

M r. Nielsen - Collins began massaging it, beginning at the calf and

moving up toward her thigh. She noticed he was gradually pulling

her right leg apart from her other leg, further exposing her. He

started to rub her inner thigh, and then began to massage S.T.'s

vagina through her underwear. S.T. testified that it did not feel

like a massage, but like an Ðattempted arousal.Ñ This contact was

not accidental. Mr. Nielsen - Collins then asked her , ÐHow is the

pressure?Ñ S.T. reached be hind her in an attempt to remove

Mr. Nielsen - CollinsÓ s hand. Mr. Nielsen - Collins took S.T.Ós hand

and held onto it, preventing her from removing his other hand

from her vagina. S.T. then tried to move her right shoulder to

twist around, and then the hand that was holding her hand pressed

down on her back, steadying her in position. S.T. closed her

legs tighter, and Mr. Nielsen Collins removed his hand.

9. Mr. Nielsen - Collins let go of S.T.Ós shoulder and covered

her to the waist. He rubbed her back for a moment. He fanned out

the cover and put in on her back. He said that the massage was

complete and left the room.

10. S.T. was confused and extremely hurt. She testified

that she had trusted Mr. Nielsen - Collins for a year - and - a - half.

She was in a vu lnerable position and he was supposed to be

professional, but he had absolutely violated her trust.

11. She got up, got dressed, left a tip on the counter as

she always did, and walked out. She left the building, got in her

car, and drove off. When she got to the corner, she determined

she had to report the incident, pulled to the side of the road,

and called VCHAC on her cell phone. She asked the person who

answered to let her speak with the manager. She then told

Ms. Samantha Trevegno, the office man ager, that she had had an

Ðinappropriate experienceÑ during her appointment , and explained

how she had been touched inappropriately by Mr. Nielsen - Collins.

S.T. never returned to VCHAC for another massage.

12. Mr. Nielsen - Collins had left VCHAC to go to a local

supermarket. When he returned, Ms. Trevegno told him she wanted

to talk to him in the pilates studio. She told Mr. Nielsen -

Collins that she had received a call from S.T. alleging an

inappropriate massage. Mr. Nielsen - Collins did not ask

Ms. Trev egno what S.T. had claimed happened, but instead

immediately became visibly upset, teared up, and stated, ÐI

thought she was sweet on me, too.Ñ He told Ms. Trevegno that he

knew that she needed to end his contract with VCHAC.

13. Msevegno left and ta lked to Dr. Horowitz, the

chiropractic doctor at VCHAC. When she returned she told

Mr. Niels e n - Collins that he should leave. Mr. Nielsen - Collins

asked if he should talk to the doctor. Ms. Trevegno said, ÐNo,

he wants you to go.Ñ

14. S.T. did not reques t that Mr. Nielsen - Collins massage

the area between S.T.Ós buttocks, her anus, or her vagina.

Mr. Nielsen - Collins did not request permission to touch the area

between S.T.Ós buttocks, her anus, or her vagina and she did not

give him consent to do so.

15. Consistent with the testimony of Ms. Iris Burman,

L.M.T., Mr. Nielsen - CollinsÓs touching of the area between S.T.Ós

buttocks, her anus, and her vagina, as described here, was

outside the scope of generally accepted examination or treatment

of massage ther apy patients.

16. Mr. Nielsen - CollinsÓs contrary contention, to the

effect that he only performed standard massage techniques on

patient S.T., and that her perception that she had been

inappropriately touched must have been based upon transfer of

sensat ion was not credible, and is rejected.

17. Mr. Nielsen - Collins used the massage therapist - patient

relationship to engage in sexual activity and to attempt to

induce patient S.T. to engage in sexual activity. Mr. Nielsen -

Collins engaged in sexual miscon duct in the practice of massage

therapy.

18. Mr. Nielsen - Collins has never had any prior discipline

imposed against his license.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter of this proceeding

pursuant to sections 480.046(4), 120.569 and 120.57(1), Florida

Statutes.

20. Petitioner has authority to investigate and file

administrative complaints charging violations of the laws

governing licensed massage therapists. § 456.073, F la. Stat.

21. A proceeding to suspend, revoke, or impose other

discipline upon a license is penal in nature. State ex rel.

Vining v. Fla. Real Est ate Comm'n , 281 So. 2d 487, 491 (Fla.

1973). Petitioner must therefore prove the charges against

Respondent by clear and convincing evidence. Fox v. Dep't of

Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep't of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996)).

22. The clear and convincing standard of proof has been

described by th e 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

lac king 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 Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.

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

23. D isciplinary statutes and rules "must always be

construed strictly in favor of the one against whom the penalty

would be imposed and are never to b e extended by construction.Ñ

Griffis v. Fish & Wildlife Conserv. Comm'n , 57 So. 3d 929, 931

(Fla. 1 st DCA 2011); Munch v. Dep't of Prof'l Reg., Div. of Real

Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992).

24. Respondent is charged with engaging in sexual

misconduct in the practice of massage, in violation of section

480.0485, which provides:

The massage therapist - patient 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 prohibited.

25. In a related context, Florida Administrative Code Rule

64B7 - 26.010 defines the term Ðsexual activityÑ in part as Ðany

direct or in direct physical contact by any person or between

persons that is intended to erotically stimulate either person or

both, or which is likely to cause such stimulation.Ñ

26. Respondent used the massage therapist - patient

relationship to engage in sexual act ivity and to attempt to

induce patient S.T. to engage in sexual activity.

27. Petitioner proved by clear and convincing evidence that

Respondent engaged in sexual misconduct in the practice of

massage therapy, in violation of section 480.0485.

28. Sect ion 480.046(1)(p) provides that disciplinary action

may be imposed for violation of any provision of chapter 480.

Penalty

29. Penalties in a licensure discipline case may not exceed

those in effect at the time a violation was committed. Willner

v. DepÓt of Prof 'l Reg., Bd. of Med . , 563 So. 2d 805, 806 (Fla.

1st DCA 1990), rev. denied , 576 So. 2d 295 (Fla. 1991).

30. Section 456.079 requires the Board of Massage to adopt

disciplinary guidelines for specific offenses. Penalties imposed

must be consiste nt with any disciplinary guidelines prescribed by

rule. See Parrot Heads, Inc. v. Dep't of Bus. & Prof'l Reg. , 741

So. 2d 1231, 1233 - 34 (Fla. 5th DCA 1999).

31. The Board of Massage Therapy has adopted Florida

Administrative Code Rule 64B7 - 30.002(3)(o)2. , which provides that

the discipline for a violation of the sexual misconduct

prohibition in section 480.0485 should be a fine of $2,500.00 and

revocation of the license.

32. Rule 64B7 - 30.002(4) sets forth possible aggravating and

mitigating circumstance s. No circumstances were shown here that

would warrant deviation from the guideline penalty.

33. Section 456.072(4) provides that in addition to any

other discipline imposed for violation of a practice act, the

board shall assess costs related to the i nvestigation and

prosecution of the case.

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 finding John D. Nielsen - Collins violat ed

section 480.0485, c onstituting grounds for discipline under

section 480.046(1)(p), imposing a fine of $2,500.00, revoking his

license to practice massage therapy, and imposing costs of

investigation and prosecution.

DONE AND ENTERED this 22nd day of June , 2015 , in

Tallahasse e, Leon County, Florida.

S

F. SCOTT BOYD

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

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of June , 2015 .

COPIES FURNISHED:

John D. Nielsen - Collins, L.M.T.

321 Fordham Drive

Lake Worth, Florida 33460

Lindsay Annette Wells Grogan, Esquire

Lou ise Wilhite - St Laurent, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399

(eServed)

Christy Robinson, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin C - 06

Tallahassee, Florida 32399

(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.