16-005478PL Department Of Health, Board Of Massage Therapy vs. Ranjie Xu, L.M.T. Status: Closed Recommended Order on Tuesday, April 4, 2017.

Summary: Respondent's offer to engage in sexual activity with undercover vice police officer constituted sexual misconduct warranting revocation of massage therapist license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 16 - 5478PL

RANJIE XU, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On February 20, 2017, a final hearing was held by video

teleconference at locations in Lauderdale Lakes and Tallahassee,

Florida, before F. Scott Boyd, an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carri e B. McNamara, Esquire

Leland L. McCharen, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: June H. Zhou, Esquire

June Zhou, PLLC

2136 Saint Andrews Boulevard, Suite 209

Boca Raton, Florida 33433

STATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent engaged

in sexual misconduct in the practice of massage t herapy, in

violation of provisions of Florida Administrative Code Rule 64B7 -

26.010 and sections 480.046(1)(o) and 480.0485, Florida Statutes ;

and , if so, what is the appropriate sanction.

PRELIMINARY STATEMENT

On January 12, 2012, the Florida Department of Health

(Petitioner or Department) issued an Administrative Complaint

against Ranjie Xu, 1/ l icensed m assage t herapist (Respondent or

Ms. Xu). The complaint charged Respondent with sexual misconduct

in the practice of massage therapy, in violation of r ule 64B7 -

26.010 and section 480.0485. Respondent disputed material facts

alleged in the complaint and requested an administrative hearing.

At hearing, Petitioner offered the testimony of Officer

F.C., who at the time of the events was an undercover police

of ficer in the vice, narcotics, and intelligence unit of the

Hallandale Police Department. Petitioner offered three exhibits,

P - 1, P - 3, and P - 4, including the deposition testimony of Jennifer

Mason, a l icensed m assage t herapist and expert in massage

therapy . All of Petitioner ' s exhibits were admitted, with the

caveat that portions of the Department investigative file

contained hearsay that was not sufficient in itself to support a

finding of fact, but could only be used to supplement or explain

other compet ent evidence. Respondent testified and offered three

exhibits, R - 3, R - 5, and R - 8, including the deposition testimony

of Ms. Wei Zhou, Respondent ' s daughter, who was unavailable to

appear in person at the hearing. All of Respondent ' s exhibits

were admitte d. An official interpreter provided by the State of

Florida was sworn in to correctly translate all testimony for

Ms. Xu, who has difficulty communicating in the English language.

The one - volume final hearing T ranscript was filed on

March 17, 2017. Petit ioner timely filed a Proposed Recommended

Order that was considered in preparat ion of this Recommended

Order.

Except as otherwise indicated, citations to the Florida

Statutes or rules of the Florida Administrative Code refer to the

versions in effect in No vember 2010, the time of the alleged

violations.

FINDING S 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

cha pters 456 and 480, Florida Statutes.

2. At all times material to this proceeding, Ms. Xu was a

licensed massage therapist in the state of Florida, holding

license number MA56426.

3. During all times relevant to the complaint, Ms. Xu was

employed by Massa ge Elite, located at 800 East Hallandale Beach

Boulevard in Hallandale Beach, Florida.

4. On November 22, 2010, Officer F.C., working in an

undercover capacity with Officer C.T., went to Massage Elite,

where they were greeted by Ms. Xu, who introduced her self as

Diana. Ms. Xu stated that a one - hour full body massage was

$70.00. They each paid, and Officer F.C. was taken to a separate

room and told to disrobe and lie face down. Minutes later,

Ms. Xu came into the room and began a massage. After some tim e,

Ms. Xu asked Officer F.C. to turn over. After he did so, Ms. Xu

began touching Officer F.C. on his penis, asking, " Do you want me

to massage this? " Officer F.C. asked her, " How much? " Ms. Xu

replied, " Sixty dollars. " Officer F.C. said he only had $3 0.00 ,

and Ms. Xu replied, " No, not for thirty, maybe next time. " The

massage was then completed.

5. On November 23, 2010, Officer F.C. returned to Massage

Elite. Other arrests were made at that time, but Ms. Xu was not

on the premises.

6. On November 3 0, 2010, Officer F.C. returned to Massage

Elite with Officer R .A . He asked for Diana, and they called her

from the back. Ms. Xu came in. Officer F.C. made a positive

identification, based upon her appearance, that Ms. Xu was the

same woman who had earli er introduced herself to him as Diana,

and had given him the massage. She was placed under arrest.

7. Ms. Xu ' s contrary testimony, to the effect that she was

not at work on November 22, 2010, that she had never seen Officer

F.C. before November 30, 2010, is not credible, and is rejected.

8. Ms. Wei Zhou, Ms. Xu ' s daughter, testified through

deposition that she came to Florida for Thanksgiving in 2010, and

that her mother stayed with her the entire time in a hotel. She

said she could not remember exactly when she was there or if she

arrived before or after Thanksgiving Day. At another point in

her testimony, she said she arrived around the 19th or 20th of

November. She said she couldn ' t remember if her grandmother

traveled with her or not. She indicate d that she did not know

what kind of work her mother did. Her testimony, to the extent

it was intended to establish that Ms. Xu did not work at Massage

Elite on November 22, 2010, was not credible. Her vague account

of events did not cast doubt on Office r F.C. ' s clear and

convincing testimony.

9. As noted in the deposition testimony of Ms. Jennifer

Mason, there is no reason for a licensed massage therapist to

ever touch the genitalia of a patient.

10. Officer F.C. paid for a massage, and Ms. Xu began t o

give him a massage. She was governed by the requirements of the

massage therapist - patient relationship.

11. Ms. Xu ' s actions on November 22, 2010, were outside the

scope of generally accepted treatment of massage therapy

patients.

12. Ms. Xu used the massage therapist - patient relationship

to attempt to induce Officer F.C. to engage in sexual activity

and to attempt to engage him in sexual activity.

13. Ms. Xu engaged in sexual misconduct in the practice of

massage therapy.

14. There is no evidence th at Ms. Xu has ever had any prior

discipline imposed against her license.

CONCLUSIONS OF LAW

15. 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 , a nd 120.57(1), Florida

Statutes (2016).

16. Petitioner has authority to investigate and file

administrative complaints charging violations of the laws

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

17. A proceeding to suspend, revoke, or i mpose 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). 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)).

18. The clear and convincing standard of proof has been

described by the Florida Supreme Court:

Clear and convincing eviden ce 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 evi dence 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)).

19. 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 construction. "

Griffis v. Fish & Wildl ife 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).

20. Respondent is charged with engaging in sexual misconduct

in the practice of massage therapy , in viola tion of section

480.0485, which provided:

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 patien t. Sexual

misconduct in the practice of massage therapy

is prohibited.

21. Under section 480.035(7), the Board of Massage Therapy

was granted authority to adopt rules to implement chapter 480.

22. The Board of Massage Therapy adopted r ule 64B7 - 26.010,

which provided in part:

(1) Sexual activity by any person or persons

in any massage establishment is absolutely

prohibited.

* * *

(3) No licensed massage therapist shall use

the therapist - client relationship to engage in

sexual activity with a ny client or to make

arrangements to engage in sexual activity with

any client.

(4) As used in this rule, " sexual activity "

means any direct or indirect physical contact

by any person or between persons which is

intended to erotically stimulate either pe rson

or both or which is likely to cause such

stimulation and includes sexual intercourse,

fellatio, cunnilingus, masturbation, or anal

intercourse. For purposes of this subsection,

masturbation means the manipulation of any

body tissue with the intent to cause sexual

arousal. As used herein, sexual activity can

involve the use of any device or object and is

not dependent on whether penetration, orgasm,

or ejaculation has occurred. Nothing herein

shall be interpreted to prohibit a licensed

massage therap ist, duly qualified under

Rule 64B7 - 31.001, F.A.C, from practicing

colonic irrigation.

23. Petitioner proved by clear and convincing evidence that

Respondent engaged in sexual misconduct in the practice of massage

therapy, in violation of section 480.048 5 and rule 64B7 - 26.010.

Penalty

24. Section 480.046(1)(o) provides that disciplinary action

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

for violation of rules adopted under that chapter.

25. Penalties in a licensure discipline case ma y not exceed

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

Dep ' t of Prof 'l Reg., Bd. of Med . , 563 So. 2d 805, 806 (Fla. 1st

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

26. Section 456.079 requires the Board of Massage Therap y 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).

27. The Board of Massage Therapy established penalty

guidelines in Florida Administrative Code Rule 64B7 - 30.002(1)(k)1.

It provided that the discipline for a violation of the statutory

prohibition against sexual misconduct in section 480.0485 should

be a $100 0.00 fine and revocation of the license. Rule 64B7 -

30.002(1)(k)12. provided that the penalty guideline for the first

violation of rule 64B7 - 26.010 should range from a $1000.00 fine

and probation to a $2500.00 fine and revocation.

28. At that time, rule 6 4B7 - 30.002(3) set forth possible

aggravating and mitigating circumstances. It provided that the

Board should consider:

(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 the 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 liveli hood;

(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 vio lations 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) above;

(n) Any other mitigating or aggravating

circumstances.

29. The evidence shows that over six years have elapsed

since the violation , and Respondent has never been previously

disciplined. It is recognized that revocation would have a

significant effect on Respondent ' s livelihood ; however, given the

serious nature of the offense, no deviation below the minimum

guideline penalty is warranted.

30. Section 456.072(4) provided 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 case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Massage Ther apy , enter a final order finding Ms. Ranjie Xu in

violation of Florida Administrative Code Rule 64B7 - 26.010 and

section 480.0485, Florida Statutes, constituting grounds for

discipline under section 480.046(1)(o), Florida Statutes ; revoking

her license to p ractice massage therapy ; imposing a fine of

$1000.00 ; and imposing costs of investigation and prosecution.

DONE AND ENTERED this 4th day of April , 2017 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrativ e 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 4th day of April , 2017 .

ENDNOTE

1/ There was testimony that Ms. Xu has since taken the family

name of her husband, but for the sake of clarity in the record all

references will continue to reflect her name as it was in November

of 2010.

COPIES FURNIS HED:

Carrie B . McNamara, Esquire

Leland L. McCharen, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

June H. Zhou, Esquire

June Zhou, PLLC

2136 Saint Andrews Boulevard , Suite 209

Boca Raton, Florida 33433

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Claudia Kemp, J.D., Executive Director

Board of M assage Therapy

Department of Health

4052 Bald Cypress W ay, Bin C - 03

Tallahassee, Florida 32399 - 3253

(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.