16-006647PL Department Of Health, Board Of Massage Therapy vs. Si Fang Tao, Lmt Status: Closed Recommended Order on Tuesday, April 25, 2017.

Summary: Department of Health proved that licensed massage therapist offered to engage in sexual activity with undercover vice officers. Recommended Order: $2,500 fine and revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 16 - 6647PL

SI FANG TAO, LMT,

Respondent.

_______________________________/

RECOMMENDED ORDER

On March 9, 2 017, a final hearing was held by video

teleconference at locations in Orlando and Tallahassee, Florida,

before J. Lawrence Johnston, an Administrative Law Judge (ALJ),

assigned by the Division of Administrative Hearings (DOAH) to

preside over this matter.

APPEARANCES

For Petitioner: Carrie B eth McNamara, Esquire

Oaj S. Gilani, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: No appearance

STATEMENT OF THE ISSUE S

The issues to be determined in this case are whether

Respondent, Si Fang Tao, engaged in sexual misconduct in the

p ractice of massage th era py, in violation of sections

480.046(1)(p) and 480.0485 , Florida Statutes (2014 - 2015) ; and if

so, what is the appropriate sanction.

PRELIMINARY STATEMENT

On March 4, 2016, Petitioner, Department of Health

(Department), filed an Administrative Complaint aga inst

Respondent, a licensed massage therapist. The complaint charged

Respondent with sexual misconduct in the practice of massage

therapy, in violation of section 480.0485. Ms. Tao disputed

material issues of fact in the complaint and requested a formal

administrative hearing.

The final hearing took place on March 9, 2017. At hearing,

Petitioner offered the testimony of law enforcement officers

Denise Rosario, Q.A., and F.M. Petitioner also offered the

deposition testimony of Iris Burman, a licensed mas sage therapist

and expert in massage therapy, taken in lieu of live testimony.

In addition, PetitionerÓs Exhibits 1 through 4 were received in

evidence. Respondent was not present and did not offer any

evidence or testimony.

The parties were allowed to s ubmit proposed recommended

orders within ten days after the filing of the transcript of the

final hearing. The Transcript was filed on March 23, 2017.

Petitioner filed a Proposed Recommended Order, which has been

considered. Respondent did not file a pro posed recommended

order.

Unless otherwise indicated, citations to the Florida

Statutes or rules of the Florida Administrative Code refer to the

versions in effect on June 12, and July 8, 2015, the dates the

violations were allegedly committed.

FINDING S OF FACT

1. Petitioner 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

(201 6 ).

2. At all times material to the complaint, Responde nt was

licensed to practice m assage therapy in the s tate of Florida,

having been issued license number MA 76085 on or about

April 21, 2014.

3. At all times material to the complaint, Respondent owned

and operated Massage Connection 1 (Massage Conn ection), located

at 11301 South Orange Blossom Trail, Suite A - 209, Orlando,

Florida 32837.

4. At all times material to the complaint, Respondent was

the sole massage therapist working at Massage Connection.

5. The Metropolitan Bureau of Investigati on (MBI) is a

joint police task force for Orange County and Osceola County.

MBI routinely investigates narcotics, vice, human trafficking,

and organized crime.

6. In June and July 2015, MBI conducted an undercover

operation for suspected acts of prosti tution occurring at Massage

Connection.

7. Officer Q.A. has been a deputy sheriff with the Orange

County SheriffÓs Office since 2007 and was working in the Vice

and Organized Crime Unit of MBI on June 12, 2015.

8. On June 12, 2015, Officer Q.A. entered Massage

Connection posing as a pat ient and requested a 60 - minute massage

from Respondent, who introduced herself as ÐMichelle . Ñ

9. Officer Q.A. paid Respondent $80.00 for the massage, and

Respondent led Officer Q.A. to a massage room where Officer Q.A.

d isrobed completely and l ay face down on the massage table.

10. Respondent did not drape Officer Q.A.Ós buttocks or

genitals during the course of this massage. Respondent

repeatedly touched Officer Q.A.Ós inner thighs, lightly touching

them with the back of her hands, palm of her hands, and

fingernails. Respondent pointed to Officer Q.A.Ós penis and made

a hand gesture with a clenched fist moving up and down,

colloquially understood to indicate manual masturbation of the

penis. Respondent then told Offi cer Q.A., ÐI can massage your

full bodyÑ and asked how much he would pay for this. Respondent

agreed to perform the manual masturbation of Officer Q.A.Ós penis

for an additional $80.00 and told Officer Q.A. not to tell anyone

that she was doing this.

11. Respondent asked Officer Q.A. for the money, accepted

partial payment of $50.00 from Officer Q.A., and left the room.

When Respondent returned to the room, she exposed her breasts to

Officer Q.A. Respondent then began massaging Officer Q.A. again

and touched his penis, at which point Officer Q.A. stated he did

not want to proceed with manual penile masturbation.

12. Officer F.M. has been a law enforcement officer with

the Orange County SheriffÓs Office for the past nine years and

was working in the Vice and Organized Crime Unit of MBI on

July 8, 2015.

13. On July 8, 2015, Officer F.M. entered Massage

Connection posing as a pat ient and requested a 30 - minute massage

from Respondent, who introduced herself as ÐCrystal . Ñ

14. Officer F.M. paid Respondent $55.00 for the massage,

and Respondent led Officer F.M. to a massage room where Officer

F.M. disrobed completely and lay face down on the massage table.

Respondent did not drape Officer F.M.Ós buttocks during the

course of this massage.

15. W hen Officer F.M. turned over during the massage,

Respondent covered Officer F.M.Ós genitals with a small towel but

then placed her hand on top of Officer F.M.Ós penis and asked if

he wanted Respondent to massage him there. Respondent told

Officer F.M. tha t she had a very good technique and made a hand

gesture with a clenched fist moving up and down, colloquially

understood to indicate manual masturbation of the penis.

Respondent told Officer F.M. that she would rub him Ðvery good . Ñ

16. When Officer F.M. a sked Respondent for oral sex,

Respondent offered to expose her breasts instead. When Officer

F.M. asked if he could receive a nude massage from Respondent if

he returned to Massage Connection, Respondent again offered to

expose her breasts instead.

17. Officer F.M. then asked Respondent how much the Ðfull

body massageÑ would cost while pointing at his penis, indicating

manual masturbation of his penis. Respondent indicated that a

Ðfully body massageÑ would cost an additional $40.00. When

Officer F.M. t old Respondent that $40.00 was too much just to

Ðjerk [him] off,Ñ or masturbate him, Respondent stated that she

does a Ðgood jobÑ and people tip her $20.00 even if she does n o t

Ðmassage [them] there.Ñ Officer F.M. declined, stating that Ð$40

for a hand jo b is a lot.Ñ Respondent replied Ðno, itÓs very good

technique,Ñ and told Officer F.M. Ðhow about for you, $35?Ñ

Officer F.M. again declined, and the massage concluded.

18. On July 9, 2015, both MBI Officers Q.A. and F.M.

positively identified Resp ondent as the massage therapist that

had offered to perform sexual acts on them.

19. It is common for patients to be completely disrobed

during a massage. However, massage therapists must drape the

patient to maintain professional boundaries. Generally , a

patient is completely draped and only the areas being massaged at

that time are exposed. At the very least, appropriate draping of

a pat ient requires draping of the buttocks and genitalia and the

breasts of female patients, unless the patient gives sp ecific

informed consent to be undraped.

20. Massaging the upper inner thigh of a patient without

first obtaining informed consent is outside the scope of practice

of massage therapy. Informed consent from the patient is

necessary before massaging the up per inner thigh due to the

sensitive nature of the area, to avoid confusion about the intent

of the touch, and to maintain boundaries. If a massage therapist

does not clarify this treatment, it can indicate that the massage

therapist is willing to engage in sexual activity.

21. There is no generally accepted massage therapy

technique that requires massage therapists to use the back of

their hands to massage the inner thigh of a patient.

22. There is no generally accepted massage therapy

techni que that requires massage therapists to use their

fingernails to lightly touch a patientÓs inner thigh. Using

fingernails to lightly touch the inner thigh of a male patient

during a massage can cause sexual arousal and is not likely to be

therapeutic.

23. There is no accepted practice within the scope of

massage therapy that allows massage therapists to touch or

massage the penis of a patient.

24. There is no accepted practice within the scope of

massage therapy that allows massage therapists to expose their

breasts to a patient.

25. The following constitute d sexual activity outsi de the

scope of massage therapy and sexual misconduct in the practice of

massage therapy : RespondentÓs failure to drape Officer Q.A.Ós

buttocks and genitals ; her expos ure of her own breasts to Officer

Q.A. ; the light touching of Officer Q.A.Ós inner thighs with the

back of her hands and fingernails ; the touching of Officer Q.A.Ós

penis ; and her offering or agreeing to masturbate Officer Q.A.Ós

penis .

26. The following constitute d sexual activity outside the

scope of massage therapy and sexual misconduct in the practice of

massage therapy : RespondentÓs fail ure t o drape Officer F.M.Ós

buttocks; her touching of Officer F.M.Ós penis ; offering or

agreeing to masturbate Offi cer F.M.Ós penis ; and her offering to

expose her breasts to Officer F.M.

CONCLUSIONS OF LAW

27. Petitioner has authority to investigate and file

administrative complaints charging violations of the laws

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

(2016) .

28. Because Petitioner seeks to impose license discipline,

Petitioner has the burden to prove its allegations by clear and

convincing evidence. See DepÓt of Banking & Fin. v. Osborne

Stern & Co., Inc. , 670 So. 2d 932 (Fla. 1996) ; Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). This Ðentails 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 the trier of fact without

hesitancy.Ñ In re Davey , 645 So. 2d 398, 404 (Fla. 1994). See

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

1983). ÐAlthough this standard of proof may be met whe re the

evidence is i n conflict, . . . it seems to preclude evidence that

is ambiguous.Ñ Westinghouse Electric Corp. v. Shuler Bros.,

Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991) (citations

omitted).

29. Disciplinary statutes and rules Ðmust be construed

strictly, in f avor of the one against whom the penalty would be

imposed.Ñ Munch v. DepÓt of ProfÓl Reg . , Div. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. DepÓt

of Bus. & ProfÓl Reg . , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002);

McClung v. Cr im. Just. Stds. & Training CommÓn , 458 So. 2d 887,

888 (Fla. 5th DCA 1984) (Ð[W]here a statute provides for

revocation of a license the grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included wit hin a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee.Ñ

(citing State v. Pattishall , 126 So. 147 (Fla. 1930)).

30. The grounds proven in support of the Departme ntÓs

assertion that RespondentÓs license should be disciplined must be

those specifically alleged in the Administrative Complaint. See ,

e.g. , Trevisani v. DepÓt of Health, 908 So. 2d 1108 (Fla. 1st DCA

2005); Cottrill v. DepÓt of Ins. , 685 So. 2d 1371 (Fl a. 1st DCA

1996); Kinney v. DepÓt of State , 501 So. 2d 129 (Fla. 5th DCA

1987); Hunter v. DepÓt of ProfÓl Reg . , 458 So. 2d 842 (Fla. 2d

DCA 1984). Due process prohibits the Department from taking

disciplinary action against a licensee based on matters not

specifically alleged in the charging instrument, unless those

matters have been tried by consent. See Shore Vill. Prop.

OwnersÓ AssÓn, Inc. v. DepÓt of Envtl. Prot. , 824 So. 2d 208, 210

(Fla. 4th DCA 2002); Delk v. DepÓt of ProfÓl Reg . , 595 So. 2d

966, 9 67 (Fla. 5th DCA 1992).

31. The Administrative Complaint against Respondent alleges

that on two separate occasions, Respondent engaged in sexual

misconduct when she used the massage therapist - patient

relationship to induce or attempt to induce, or engage or attempt

to engage, Officers Q.A. and F.M. in sexual activity outside the

scope of practice of massage therapy.

32. Section 480.046(1)(p) subjects a massage therapist to

discipline for violating any provision of this chapter or

chapter 456, or any rule s adopted pursuant thereto.

33. Section 480.0485 prohibits sexual misconduct in the

practice of massage therapy and defines sexual misconduct, in

pertinent part, as:

[V]iolation of the massage therapist - patient

relationship through which the massage

thera pist 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.

34. Florida Administr ative Code Rule 64B7 - 26.010(4)

defines Ðsexual activityÑ as:

[A]ny 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

su ch stimulation and includes sexual

intercourse, fellatio, cunnilingus,

masturbation, or anal intercourse. For

purposes of this subsection, masturbation

means the manipulation of any body tissues

with the intent to cause sexual arousal.

35. The Departme nt presented clear and convincing evidence

that Officers Q.A. and F.M. had a massage therapist - patient

relationship with Respondent by demonstrating that they each

received a paid massage from Respondent at Massage Connection.

36. The Department pr esented clear and convincing evidence

that Respondent induced or attempted to induce, or engaged or

attempted to engage in sexual activity, as defined by rule 64B7 -

26.010(4), with Officer Q.A. when Respondent : failed to drape

Officer Q.A.Ós buttocks and g enitals ; exposed her breasts to

Officer Q.A. ; repeatedly touched Officer Q.A.Ós inner thighs

lightly with the back of her hands and fingernails ; touched

Officer Q.A.Ós penis ; and offered to perform masturbation of

Officer Q.A.Ós penis.

37. It constitute d sexual misconduct during the course of a

massage under section 480.0485 when Respondent : fail e d to drape

Officer Q.A.Ós buttocks and genitals ; expos ed of her own breasts

to Officer Q.A. ; light ly touch ed Officer Q.A.Ós inner thighs with

the back of her han ds and fingernails ; touched Officer Q.A.Ós

penis ; and offer ed or agree d to masturbate Officer Q.A.Ós penis .

38. The Department presented clear and convincing evidence

that Respondent induced or attempted to induce, or engaged or

attempted to engage in sex ual activity, as defined by rule 64B7 -

26.010(4), with Officer F.M. when Respondent failed to drape

Officer F.M.Ós buttocks ; placed her hand on Officer F.M.Ós penis ;

offered to perform masturbation of Officer F.M.Ós penis ; and

offered to expose her breasts to Officer F.M.

39. It constitute d sexual mi sconduct during the course of a

massage under section 480.0485 when Respondent : fail e d to drape

Officer F.M.Ós buttocks ; touched Officer F.M.Ós penis ; offered or

agree d to masturbate Officer F.M.Ós penis ; and offer ed to expose

her breasts to Officer F.M.

40. Based on the foregoing, the Department proved by clear

and convincing evidence that Respondent violated section

480.0485, and thereby violated section 480.046(1)(p), as charged

in the Administrative Comp laint.

41. The Board of Massage Therapy imposes penalties upon

licensees in accordance with the disciplinary guidelines

prescribed in Florida Administrative Code Rule 64B7 - 30.002 . See

Parrot Heads, Inc. v. DepÓt of Bus. and ProfÓl Reg . , 741 So. 2d

1231 (Fla. 5th DCA 1999).

42. Rule 64B7 - 30.002 provides that the penalty for

violating section 480.0485 is a $2,500 fine and revocation of the

massage therapistÓs license.

43. Rule 64B7 - 30.002(4) provides that, in applying the

penalty guidelines, the fol lowing aggravating and mitigating

circumstances may be taken into account, allowing the Board to

deviate from the 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 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 pena lty upon the

licensee s 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 relate d offenses

under subsections (1) and (2) above;

(n) Any other mitigating or aggravating

circumstances.

44. Because the penalty recommended is within the

disciplinary guidelines, it is unnecessary to make any findings

related to the aggravating or mit igating factors set out in rule

64B7 - 30.002(4).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Department of Health, Board of Massage Therapy, finding that

Ms. Tao viol ated section 480.046(1)(p), by violating section

480.0485. For these violations, it is recommended that the Board

impose a $2,500 administrative fine on Respondent, revoke

RespondentÓs license to practice massage therapy, and require

Respondent to pay the DepartmentÓs costs of investigation and

prosecution of this matter.

DONE AND ENTERED this 25 th day of April , 2017 in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 2 5 th day of April , 2017 .

COPIES FURNISHED:

C arrie Beth McNamara, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Oaj S. Gilani, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Si Fang Tao

335 Rome Street

San Francisco, California 94112

Nic h ole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way , Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Claudia Kemp, JD, Executive Director

Board of Massag e Theraphy

Department of Health

4052 Bald Cypress Way , Bin C06

Tallahassee, Florida 32399 - 3257

(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 Orde r. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.