16-003870PL Department Of Health, Board Of Massage Therapy vs. Min Zhang, L.M.T. Status: Closed Recommended Order on Friday, October 7, 2016.

Summary: Petitioner failed to prove the identity of the person alleged to have offered massage services that constituted sexual misconduct by means of admissible, non-hearsay evidence. The Administrative Complaint should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D EPARTMENT OF HEALTH,

BOARD OF MASSAGE THERAPY,

Petitioner,

vs. Case No. 1 6 - 3870 PL

MIN ZHANG , L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On August 31, 2016 , a final hearing was held by video

teleconference at locations in Tallahassee and Ft. Lauderdale ,

Florida, before E. Gary Early , an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lealand L. McCharen, Esquire

Carrie Beth McNamara, Esquire

Department of Health

4052 Bald Cypress Way , Bin C65

Tallahassee, F lorida 32399 - 3265

For Respondent: William M. Furlow, Esquire

Paul P. Drake, Esquire

Grossman Furlow & Bayo, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

ST ATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent engaged

in sexual misconduct in the practice of massage therapy , in

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

appropriate sanction.

PRELIMINARY STATEMENT

On November 19, 2014 , Petitioner , Department of Health

(Department) , issued a n Administrative Complaint against

Respondent , Min Zhang , a licensed massage t herapist . The

complaint charged Respondent with s exual misconduct in the

practice of massage therapy, in violation of section 480.0485.

On December 15, 2014, Respondent filed a Request for

Administrative Hearing Involving Disputed Issues of Fact in

which she disputed material facts alleged in the Administrative

C omplaint and requested an administrative hearing.

On July 12, 2016, the petition was referred to the Division of

Admi nistrative Hearings. The final hearing was scheduled for

August 31, 2016.

On July 26, 2016, the parties stipulated that Ðthe

allegations of paragraph 6 of the Administrative Complaint, if

proven at trial, constitute both sexual misconduct under

Section 4 80.0485, Florida Statutes (2013), and are outside of

the scope of massage as defined in Chapter 480, Florida

Statutes (2013) . Ñ

On August 25, 2016, the parties filed a Joint Prehearing

Stipulation , by which the Department withdrew Count II of the

Administrative Complaint. Thus, this proceeding is as to

Count I only.

A t hearing, Petitioner offered the testimony of M .T. , a

detective with the City of Sunrise Police Department , and

offered PetitionerÓs Exhibit 1 in evidence. 1/ Respondent made

no a ppearance at the hearing, but was represented by counsel.

Respondent offered no witnesses or exhibits.

The one - volume final hearing T ranscript was filed on

August 28, 2015 . Both parties timely filed P roposed

R ecommended O rder s that were considered in preparation of this

Recommended Order.

This proceeding is governed by the law in effect at the

time of the commission of the acts alleged to warrant

discipline. See McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statutes are to

Florida Statutes (201 3 ), unless otherwise noted.

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 Flori da, pursuant to section 20 .43 , and

chapters 456 and 480, Florida Statutes.

2. At all times material to this proceeding, Min Zhang was

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

license number MA7 0667 .

3. RespondentÓs current address of record is 14444 38th

Avenue, Apartment B3, Flushing, New York 11354.

4 . On April 3, 2014, Detective M.T. entered the Red Jade

Oriental Massage (Red Jade), located at 2051 North University

Drive, Sunrise, Florida 33322 . Detective M.T. was greeted by an

unnamed female employee of the Red Jade . That employee was not

alleged to be Respondent. He was advised that a massage cost

$50, which he paid with Official Investigatory Funds (OIF) . The

unnamed female employee escor ted Detective M.T. to a massage

room, and told him to disrobe and wait. Detective M.T.

undressed completely and lay face down on the massage table with

a towel covering his buttocks.

5 . Detective M.T. had an audio transmission device

relaying his discus sions in the Red Jade to police officers

stationed outside.

6 . A woman entered the massage room and proceeded to

briefly massage the back of Detective M.T.Ós thighs near his

buttocks with a light touch. Detective M.T. turned onto his

back, and the mass euse briefly massaged the front of Detective

M.T.Ós thighs. The masseuse then clenched her fist and moved it

in an up - and - down motion while looking at Detective M.T.Ós face.

She did not speak. Detective M.T. understood this gesture to be

an offer to per form masturbation as an additional service.

Detective M.T. asked the masseuse how much it would cost. She

replied, Ð50.Ñ Detective M.T. agreed to this price , got up and

retrieved an additional $50 in OIF, and gave it to her .

7 . When the masseuse acce pted the $50, Sunrise Police

Department officers entered the Red Jade and took the masseuse

into custody.

8 . Detective M.T. dressed and related the events that he

was involved in to Detective Robinson, the case agent

responsible for generating the poli ce report. He then left the

premises. Detective M.T. did not know the name of the woman

prov id ing the massage, and was not present when she was

putatively identified by other officers.

9 . Detective M.T. did not know whether the person taken

into custody was Respondent , and had no information as to how

the masseuse was identified. He was not privy to any

conversation between the officers and any person employed by the

Red Jade.

10 . The motioning of oneÓs hand in an up - and - down motion ,

as describ ed and demonstrated by Detective M.T. , is accepted as

constituting a solicitation for sexual services in the form of

masturbation. Offering to perform masturbation during the

course of a massage constitutes sexual activity outside the

scope of massage as defined in chapter 480.

C ONCLUSIONS OF LAW

A. Jurisdiction

11 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding . §§ 480.046(4), 120. 569 , and 120.57(1) , Fl a. Stat.

(201 6 ) .

12 . Petitioner has authority to investigate and file

administrative complaints charging violations of the laws

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

B. Standards

13 . Section 480.046(1)(p) provides that:

The following acts constitute grounds for

denial of a license or disciplinary action,

as specified in s. 456.072(2):

* * *

(p) Violating any provision of this chapter

or chapter 456, or any rules adopted

pursuant thereto.

14 . 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.

C. Burden and Standard of Proof

15 . The D epartment bears the burden of proving the

specific allegations that support the charges alleged in the

Administrative Complaint , including the identity of the person

who is the subject of the allegations of wrongdoing, by clear

and convincing evidence. DepÓt of Ba nking & Fin., Div. of Sec.

& Inv. Prot. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Fox v. Dep't

of Health , 994 So. 2d 416 (Fla. 1st DCA 2008); Pou v. DepÓt of

Ins. & Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998).

16 . Clear and convincing evidence Ðrequires more proof

than a Òpreponderance of the evidenceÓ but less than Òbeyond and

to the exclusion of a reasonable doubt.ÓÑ In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). The clear and convincing

e vidence level of proof :

[E]ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the witnesses must

be clear and without confusion; and the sum

total of the evidence must be of sufficient

weight to convince t he trier of fact without

hesitancy.

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 Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguous." Westinghouse Elec tric Corp. v. Shuler Bros. ,

590 So. 2d 986, 989 (Fla. 1st DCA 1991).

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

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

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

1973). The provisions of law upon which this disciplinary

action has been brought are penal in nature, and must be

strictly construed, with any ambiguity construed against

Petition er. Penal statutes must be construed in terms of their

literal meaning and words used by the Legislature may not be

expanded to broaden the application of such statutes. Elmariah

v. DepÓt of Bus. & ProfÓl Reg. , 574 So. 2d 164, 165 ( Fla. 1st

DCA 1990); see also Griffis v. Fish & Wildlife Conserv. Comm'n ,

57 So. 3d 929, 931 (Fla. 1st DCA 2011); Beckett v. DepÓt of Fin.

Servs. , 982 So. 2d 94, 100 (Fla. 1st DCA 2008); Whitaker v.

DepÓt of Ins. , 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Dyer v.

DepÓt of Ins. & Treasurer , 585 So. 2d 1009, 1013 (Fla. 1st DCA

1991).

18 . The allegations of fact set forth in the

Administrative Complaint are the grounds upon which this

proceeding is predicated. Trevisani v. DepÓt of Healt h , 908 So.

2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v. DepÓt of

Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the

scope of this proceeding is properly restricted to those matters

as framed by Petitioner. M.H. v. DepÓt of Child. & Fam . Servs. ,

977 So. 2d 755, 763 (Fla. 2d DCA 2008).

D. Police Reports

19. Section 90.803(8), Florida Statutes, entitled Public

Records and Reports, provides, in pertinent part, that:

Records, reports, statements reduced to

writing, or data compilations, i n any form,

of public offices or agencies, setting forth

the activities of the office or agency, or

matters observed pursuant to duty imposed by

law as to matters which there was a duty to

report, excluding in criminal cases matters

observed by a police of ficer or other law

enforcement personnel, unless the sources of

information or other circumstances show

their lack of trustworthiness.

20 . The evidence as to the identity of the masseuse was

provided exclusively by means of the police report entered in

evidence. The police report is hearsay. However, it would be

admissible over objection in a civil trial since it falls within

the public records hearsay exception in section 90.803(8). T he

public record s exception is limited to Ðmatters observed

pursuant to duty imposed by law as to matters which there was a

duty to report.Ñ It is well established that Ð[f] or evidence to

be admissible und er one of the exceptions to the hearsay rule,

it must be offered in strict compliance with the requirements of

the particular exception. Ñ Juste v. DepÓt of HRS , 520 So. 2d

69, 71 (Fla. 1st DCA 1988).

2 1 . There was no evidence offered to su pport a findin g

th at D etective Robinson, who wrote the report , observed the

means by which the identity of the masseuse was obtained.

Records that are not based on the observations of a public

official, but Ðrely on information supplied by outside sources , Ñ

do not fall within the public records and reports exception to

the hearsay rule , and Ð Ò rather than offering this type of

record, a witness must be called who has personal knowledge of

the facts.ÓÑ Lee v. Dep't of HRS , 698 So. 2d 1194, 1201 (Fla.

1997), citing Ehrhar dt , § 803.8.

22 . The hearsay exception established in section 90.803(8)

does not extend to police reports used in criminal cases. The

reason, as stated by Professor Ehrhardt , Ðis based on the belief

that observations by officers at the scene of a crime or when a

defendant is arrested are not as reliable as observation by

public officials in other cases because of the adversarial

nature of the confrontation between the police and the

defendant.Ñ Charles W. Ehrhardt, EhrhardtÓs Florida Evidence

§ 803.8 (2016 Ed.). Although the police report is admissible in

this case, the same concerns as to reliability that are present

in the criminal context exist when it is used in a pena l civil

context. Thus, even though the report is admissible, the

determination of the weight to be given the report, as is the

case with all evidence, remains within the province of the trier

of fact.

E. Analysis

23 . Detective M.T. did not know the ide ntity of the

masseuse, and was not present when her identity was purportedly

obtained.

24 . The police report lists ten Ðassisting officers,Ñ with

Detective M.T. being the only one to testify. The author of the

report, Detective Robinson, was occupied w ith taking the

statement of Detective M.T. for at least part of the time as the

events described occurred. There is no description of how the

identification of the masseuse was made, or who made it. There

is no evidence to support a finding or conclusion that Detective

Robinson observed , or was involved in , the process by which the

masseuse was identified.

25 . The undersigned has no hesitation in concluding that

the action of the masseuse was an unequivocal offer to

masturbate Detective M.T. that, in accordance with the

stipulation of the parties, constituted both sexual misconduct

under s ection 480.0485, and conduct outside of the scope of

massage as defined in c hapter 480 .

26 . The only evidence of the identity of the masseuse was

that contained in the police report . Given that there was no

evidence that the person who prepared the report observed or

participated in the identification of the masseuse, and since

there is no other evidence of her identity, the evidence is not

sufficient to support the allegation that the masseuse was

Respondent . § 120.57(1)(c), Fla. Stat.

RECOMMENDATION

B ased on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Massage Therapy , enter a final order dismissing the

Administrative Complaint against Respondent, Min Zhan g , L . M . T .

DONE AND ENTERE D this 7th day of Octo ber, 201 6 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 7th day of October , 2016.

ENDNOTE

1/ Exhibit 1 is a police report of the incident giving rise to

the Administrative Complaint. Detective M.T. testified to some

of the incidents described in the police report from his

personal knowledge. His testimony was sufficient to

authenticate the police report. The copy that was with

Detective M.T. in the Ft. Lauderdale location was signed by him

and nota rized, provided by the Department as a substitute to the

copy of Exhibit 1 offered in evidence in Tallahassee, and is

received in evidence as Exhibit 1.

COPIES FURNISHED:

William M. Furlow, Esquire

Paul P. Drake, Esquire

Grossman Furlow & Bayo, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Lealand L. McCharen, Esquire

Carrie Beth McNamara, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

(eServed)

Claudia Kemp, JD, Executive Director

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399 - 3257

(eServed)

Nichole C. Geary, General

Department of Health

4052 Bald Cypress Way, Bin A 0 2

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.