15-003293PL Department Of Health, Board Of Massage Therapy vs. Na Li, L.M.T. Status: Closed Recommended Order on Wednesday, September 23, 2015.

Summary: Actions of Respondent in removing draping and touching patient's genitalia constituted sexual misconduct in the practice of massage.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 15 - 3293PL

NA LI, L.M.T.,

Respondent.

_______________________________/

RECOMMEND ED ORDER

On August 14 , 20 15 , a final hearing was held by video

teleconference at locations in Miami and Tallahassee, Florida,

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

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristen M. Summers , Esquire

Oaj S. Gilani, Esquire

Brynna J. Ross, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, F lorida 32399

For Respondent: Simon Patrick Dray , Esquire

S. Patrick Dray, P.A.

Penthouse 1

40 Northwest Third S treet

Miami , F lorida 33 128

ST ATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent engaged

in sexual misconduct in the practice of massag e therapy , in

violation of section 480 .0485 , Florida Statutes, and , if so, what

is the appropriate sanction.

PRELIM INARY STATEMENT

On June 4 , 2015 , Petitioner , Department of Health , issued

a n Amended Administrative Complaint against Respondent , Na Li ,

licensed massage t herapist . 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 administra tive

hearing.

A t hearing, Petitioner offered the testimony of R.S., a

detective with the Davie Police Department ; M.B., a police

officer with the Davie Police Department; and Ms. Jennifer

Mason, a l icensed m assage t herapist. Respondent testified on

her own b e half. Neither party offered any exhibits. M r. Feng

Xiao , provided by the State of Florida, was sworn as the

official Mandarin interpreter to translate the proceedings.

Ms. Tao Tan , who accompanied Respondent , was also sworn in as

a Mandarin interpreter and w as prepared to interrupt the

proceeding , if necessary , to call the partiesÓ attention to

anything that she believed was not being interpreted correctly.

This did not happen during the course of the proceeding.

The one - volume final hearing T ranscript was filed on

August 28, 2015 . Both parties timely filed proposed recommended

order s that were considered in preparation of this Recommended

Order.

Except as otherwise indicated, citation s to the Florida

Statute s or rules of the Florida Admini strative Code refer to

the version s in effect in November and December of 2013, the

time during which the violation s w ere 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 th e s tate of Florida, pursuant to section 20 .43 , and

chapters 456 and 480, Florida Statutes.

2. At all times material to this proceeding, Na Li was a

licensed massage therapi st in the s tate of Florida, holding

license number MA71793.

3. Between November 2013 and December 2013, Na Li was

employed by A Golden Massage and Spa, located in Hallandale

Beach, Florida, where she performed Swedish massages and deep

tissue massages.

4. During November and December 2013, M.B. assisted the

Hallandale Police Department in a criminal investigation . On

November 13, 2013, M.B. , working in an undercover capacity with

Detective R.S. , went to A Golden Massage and Spa as a client

seeking a ma ssage.

5 . When M.B. and R.S. entered A Golden Massage and Spa,

they were greeted by a woman who i ntroduced herself as Cici.

They told Cici that R.S. was M.B.Ós boss, that he had just won

some money in a casino, and that he was treating M.B. to a

massag e. R.S. paid for two massages and Cici led M.B. to a

massage room and told him to disrobe. M.B disrobed and lay face

down, covered by a towel .

6 . Na Li then came into the room and introduced herself as

ÐYumi.Ñ She asked M.B. if he needed a massage in any particular

place, to which he said Ðno.Ñ Na L i put oil on her hands and

began to massage M.B. from the neck down. Na L i was

concentrating on M.B.Ós lower back, and then removed the towel

and began massag ing M.B.'s buttocks and inner legs and thighs,

occasionally to uch ing M.B.'s testicles with the back of her hand.

Each time Na Li touched M.BÓs testicles, she would giggle.

7 . Na Li then asked M.B. to lie on his back. M.B. turned

over , Na Li put a pillow behind M.B.Ós head , and she covered his

genita ls with a towel. Na Li resumed massaging M.B., work ing his

upper body, shoulders, and chest.

8 . Na Li then re moved the towel and placed it to the side.

Na Li began massaging M.B.Ós upper thigh and again occasionally

touched M.B.Ós genitals with the back of her hand. She then

indicated through gestures that M.B. should make a fist with his

right hand and put it over his penis. When M.B. complied, she

placed her own hand on top of M.BÓs hand and began to move it in

a circle and up and down . She was moving his hand, as M.B.

testified, in a Ðmasturbation way.Ñ

9 . M.B. stopped Na Li and asked her Ðhow much for her to do

it.Ñ N a Li giggled, and resumed massaging M.B. Then, a second

time , she put his hand on his penis and her hand on top of his.

Again, M.B. asked her how much. She replied Ðtip,Ñ indicating

that she would expect a better tip. M.B. did not agree to give a

bette r tip, saying that his ÐbossÑ had his money. Na Li next

began to massage M.B.Ós arm, and worked down to his fingers. She

then placed her face in M.B.Ós left hand and tried to lick his

middle finger.

10 . On December 4, 2013, M.B. again went to the A

Go lden Massage and Spa with R.S. as part of the continuing

investigation. On this occasion, he paid for himself, and was

again shown to a massage room.

11 . Na Li came into the room. M.B. and Na Li recognized

each other, and Na Li giggled. She again asked M.B. if he needed

a massage in any particular place ; he again said no. She used

oil and began to massage M.B., eventually removing the towel,

massaging his thighs, and touching his testicles with the back of

her hand. She began tickling M.B. and licking her lips while

looking at M.B.Ós penis. He asked her how much for her to Ðdo it

with her lips.Ñ She giggled and continued tickling him, but gave

no answer. When he again asked her how much, she said Ðno, no,Ñ

which M.B. interpreted as declining to enga ge in oral sex.

12 . M.B. did not ask that the draping covering his genitals

be removed. He did not ask Na Li to touch his genitals or give

her permission to do so on either November 1 3 th or December 4th.

13 . Consistent with the testimony of Ms. Jennifer Mason, a

licensed massage t herapist and expert in massage therapy, there

is no reason for draping to be removed during the course of a

massage. If draping comes off by accident, it is usually put

back on right away. There is no massage technique that requires

the use of a massage therapistÓs tongue or mouth. While massage

of the buttocks and inner thigh of a male patient is sometimes

appropriate, it should be done with careful draping and tucking

of the drape to avoid inadvertent touching of the genitalia.

There is never a reason for a massage therapist to touch a

patientÓs genitalia.

14 . Na LiÓs actions on November 13 and December 4, 2013,

were outside the scope of generally accepted treatment of massage

therapy patients .

15 . Na LiÓs contr ary testimony, to the effect that she

performed only standard massage techniques on M.B. , was not

credible and is rejected.

16 . Na Li used the massage therapist - patient relationship

to attempt to induce M.B. to engage in sexual activity and to

attempt t o engage him in sexual activity . Na Li engaged in

sexual misconduct in the practice of massage therapy.

17 . Na Li has never had any prior discipline imposed

against h er license.

C O N CLUSIONS OF LAW

18 . 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 (2015) .

1 9 . Petitioner has authority to investigate and file

administrative complaints charging violations of the laws

governing licensed massage therapists. § 456.073, Fla. Stat.

20 . A proceeding to susp end, revoke, or impose other

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

Vining v. Fla. Real E state 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 Ster n & Co. , 670 So. 2d 932 (Fla.

1996) ) .

21 . The clear and convincing standard of proof has been

described 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 t he 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)).

22 . 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 be extended by constructio n.Ñ

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

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

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

23 . Respondent is charged with engaging in sexual

misconduct in the practic e of massage, in violation of section

480.0485 , which provide s :

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 pat ient.

Sexual misconduct in the practice of massage

therapy is prohibited.

24 . In a related context, Florida Admin istrative Code

R ule 64B7 - 26.010 defines the term Ðsexual activity , Ñ in part , as

Ðany 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 sti mulation.Ñ

25 . Respondent us ed the massage therapist - patient

relationship to attempt to induce M.B. to engage in sexual

activity and to attempt to engage him in sexual activity.

26 . Petitioner proved by clear and convincing evidence that

Respondent enga ged in sexual misconduct in the practice of

massage therapy, in violation of section 480.0485 .

27 . Section 480.046(1)(p) provides that disciplinary action

may be imposed for violat ion of any provision of chapter 480 .

Penalty

28 . Penalties in a licensure discipline case may not exceed

those in effect at the time a violation w as committed. Willner

v. DepÓt of Prof. Reg., Bd. of Medicine , 563 So. 2d 805, 806

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

2 9 . Section 456.079 , Florida Statues, requires the Board of

Massage Therapy to adopt disciplinary guidelines for specific

offenses. Penalties imposed must be consistent 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).

30 . The Board of Massage Therapy adopted Florida

Administrative Code Rule 64B7 - 30.002(3)(o)2. As in effect in

November and December of 2013, it p rovide d that the discipline

for a violation of the sexual mis conduct prohibition in

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

of the license .

31 . At that time, r ule 64B7 - 30.002( 4 ) set forth possible

aggravating and mitigating circumstances . No circumstances were

shown here that would warrant deviation from the guideline

penalty.

32 . Section 456.072(4) provide d that in addition to any

other discipline imposed for violation of a practice act, the

board shall assess costs related to the investigation and

prosecution of the c ase.

RE COMM ENDATION

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 Na Li in violation of section 480.0485,

Florida Statutes, constituting grounds for discipli ne under

section 480.046(1)(p), Florida Statutes; imposing a fine of

$2,500.00 ; revoking h er license to practice massage therapy ; and

imposing costs of investigation and prosecution.

DONE AND ENTERED this 23rd day of September, 2015 , in

Tallahassee, 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

www.doah. state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of September, 2015 .

COPIES FURNISHED:

Kristen M. Summers, Esquire

Oaj S. Gilani, Esquire

Brynna J. Ross, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Simon Patrick Dray, Esquire

S. Patrick Dray, P.A.

Penthouse I

40 Northwest Third Street

Miami, Florida 33128

(eServed)

Christy Robinson, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way , Bin C06

Tallahassee, Florida 32399 - 3257

(eServed)

Daniel Hernandez, Interim General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, 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.