17-001832PL Department Of Health, Board Of Massage Therapy vs. Meie Li Crisp, L.M.T. Status: Closed Recommended Order on Thursday, September 28, 2017.

Summary: Petitioner presented clear and convincing evidence that Respondent committed sexual misconduct in the practice of massage therapy. Recommend $1,000 fine and revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 17 - 1832PL

MEIE LI CRISP, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On July 26 , 2017, a final hearing was held by video

teleconference at locations in Orlando and Tallahassee, Florida,

before L yn ne A. Quimby - Pennock , an Administrative Law Judge

(ALJ), assigned by the Division of Administrative Hearings (DOAH)

to preside over this matter.

APPEARANCES

For Petitioner: Philip Aaron Crawford, Esquire

Ann L. Prescott, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

For Respondent: Thomas D. Sommerville, Esquire

Law Offices of Thomas D. Sommerville, P.A.

820 North Thornton Avenue

Orlando, Florida 32803

STATEMENT OF THE ISSUE S

The iss ues to be determined are whether Meie L. Crisp ,

L.M.T., Respondent, engaged in sexual misconduct in the p ractice

of massage th erapy, in violation of section 480.046(1)( o ) ,

Florida Statutes (2012) , through a violation of section 480.0485,

Florida Statutes ( 2012); and , if so, what is the appropriate

sanction.

PRELIMINARY STATEMENT

On March 4, 2016, Petitioner, Department of Health

(Department), filed a First Amended Administrative Complaint

against Respondent, a licensed massage therapist. The complaint

char ged Respondent with sexual misconduct in the practice of

massage therapy, in violation of section 480.0485. Respondent

disputed material issues of fact in the complaint and requested a

ÐformalÑ hearing before an administrative law judge appointed by

DOAH.

Prior to the final hearing, the parties filed a joint pre -

hearing stipulation, which included 13 facts which were admitted.

To the extent relevant , those facts are included in this

Recommended Order.

At hearing, Petitioner offered the testimony of law

en forcement officer Q.A. and Respondent. In addition,

PetitionerÓs Exhibit 6 was received in evidence without

objection. Respondent testified on her own behalf, and did not

offer any exhibits. An official translator provided by the State

of Florida was sw orn in to translate all testimony for Respondent

as English is not her first language.

Petitioner had issued a subpoena to Jennifer Mason, L.M.T.,

to appear at the hearing, yet she failed to appear. Petitioner

orally motioned to allow time to obtain Ms. M asonÓs deposition.

Over objection from RespondentÓs counsel, the undersigned granted

Petitioner until August 30, 2017, to obtain Ms. MasonÓs

deposition testimony. On August 29, 2017, Ms. MasonÓs deposition

was admitted as PetitionerÓs Exhibit 7. The hea ring record was

closed by an Order issued on August 30, 2017.

The parties were allowed to submit proposed recommended

orders within ten days after the filing of both the deposition

transcript and the final hearing transcri pt. Both T ranscripts

were filed b y August 30, 2017, and the parties were notified to

file their proposed recommended order s on or before the close of

business on September 8, 2017. 1/ Both parties timely filed a

Proposed Recommended Order, and each has been considered.

Unless otherwise in dicated, citations to the Florida

Statutes or rules of the Florida Administrative Code refer to the

versions in effect on September 6, 2012, the time of the alleged

violations.

FINDING S OF FACT

1. Petitioner is the state agency charged with regulating

th e prac tice of massage therapy in the S tate of Florida, pursuant

to section 20.43 and chapters 456 and 480, Florida Statutes.

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

licensed to practice massage therapy in the state of Florida,

having bee n issued license number MA67145. She has been licensed

since 2012.

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

employed as a massage therapist at the Asian Flower Massage

(AFM), located at 1001 West Colonial Drive, Orlando, Florida

32804.

4 . The Metropolitan Bureau of Investigation (MBI) is a

joint police task force for the Ninth Judicial Circuit , which

includes Orange County and Osceola County. MBI routinely

investigates vice, human trafficking crimes, and mid - level to

upper - level narcoti c organizations.

5. 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 September 6, 2012.

6. In or around September 2012, MBI received a lot of

complain ts regarding prostitution taking place within AFM.

Officer Q.A. went to AFM on September 6, 2012, to conduct an

undercover investigation.

7. Officer Q.A. entered AFM at approximately 7:15 p.m.,

posing as a client , and met Respondent. Officer Q.A. reques ted a

60 - minute massage from Respondent.

8. Officer Q.A. paid Respondent $100 for the massage.

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

entered, disrobed completely and laid face down on the massage

table. Respondent then entered the room, and placed

Officer Q.A . Ós $30 change on a nearby table. (The charge for a

60 - minute massage was $70 at AFM.)

9. As Officer Q.A. laid on his stomach, with his buttocks

exposed, Respondent did not place a towel or drape on him,

although towels w ere available in the room. Respondent began

performing a massage on him. For the first 30 to 40 minutes

Respondent manipulated Officer Q.A.Ós skin, muscle and tissue

with her hands. As she was rubbing Officer Q.A., the two started

a conversation. As th e conversation continued, Respondent

massaged Officer Q.A.Ós inner thighs, and slapped his buttocks.

10. After the first 30 to 40 minutes, Respondent directed

Officer Q.A. to turn over and lay on his back. Respondent did

not drape Officer Q.A.Ós genitals during the second portion of

this massage, even though towels were easily accessible in the

room.

11. Respondent continued to massage Officer Q.A. by

manipulating his skin, muscle and tissue, including his inner

thigh, and she touched his penis. Respond ent then pointed to

Officer Q.A.Ós penis, made a clenched fist and moved it up and

downward, and asked Ðdo you want?Ñ RespondentÓs hand gesture is

colloquially understood to indicate manual masturbation of the

penis.

12. Officer Q.A. then pointed to Resp ondentÓs vagina,

clinched his fist and thrust his pelvic bone to simulate sexual

intercourse. Officer Q.A. asked Respondent Ðhow much?Ñ and

Respondent responded by saying Ð$150.Ñ

13 . Officer Q.A. stated he did not have the time for sexual

intercourse. H e dressed and told Respondent he would come back

again, and pay her for sex.

14 . Shortly after Officer Q.A. left, Respondent was

arrested.

15 . Respondent denied Officer Q.A.Ós account. At the

hearing, Respondent testified that she had Ðcovered him with a

towel.Ñ However, when asked if she covered him and he removed

the cover, she responded with ÐSometimes maybe the towel just

dropped somehow, but I canÓt remember particularly.Ñ Then later,

when confronted with her April 19, 2017 , deposition testimony

w here she responded that she did not remember whether she covered

him or not, she testified: ÐI answered I donÓt remember. Today

I think that I remember. I said I put a towel on table. I said

on table. I did not say on him. I said I donÓt remember.Ñ

Respondent also testified she did not touch Officer Q.A.Ós penis

and she did not mean to agree to have sex with him.

1 6 . Respondent admitted that sh e lied to Officer Q.A.

during their discussion about the use of a credit card reader.

She claimed that Off icer Q.A. could not use a credit card for

payment, when in fact another client had paid with a credit card.

RespondentÓs testimony is not credible, and is rejected.

17 . Ms. Mason is a licensed massage therapist and based on

her education, training , and e xperience she is accepted as an

expert in massage therapy. A full - body massage means that Ðafter

a client is laid down and fully draped, you massage from the top

of the head to the toes, but genitalia are always draped and

avoided.Ñ A full - body massage i s for relaxation and pain relief,

and does not include touching or massaging the male genitalia

because it could cause sexual stimulation. The touching of the

male genitalia (specifically a manÓs penis) is sexual misconduct.

18 . As noted in the depositio n testimony of Ms. Mason,

there is no reason for and no accepted practice within the scope

of licensed massage therapy that allows a therapist to ever touch

the genitalia of a patient.

1 9 . RespondentÓs actions on September 6, 2012, were outside

the scope of generally accepted treatment of massage therapy

patients.

20 . The following constituted sexual activity outside the

scope of massage therapy and sexual misconduct in the practice of

massage therapy: RespondentÓs touching of Officer Q.A.Ós penis,

Resp ondentÓs gesturing with her clenched fist in an up and

downward motion indicating masturbation , and Respondent agreeing

to have sexual intercourse with Officer Q.A.

21 . There is no evidence that Respondent has ever had any

prior discipline imposed against her license.

CONCLUSIONS OF LAW

22 . 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 (2017) .

23 . Petitioner has authority to investigate an d file

administrative complaint s charging violations of the laws

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

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

discipline upon a professional license is penal in nature. State

ex rel. Vining v. Fla. Real Estate CommÓn , 281 So. 2d 487, 491

(Fla. 1973). Petitioner must therefore prove the allegations

against Respondent by clear and convincing evidence. Fox v.

DepÓt of Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2 008)(citing

DepÓt of Banking & Fin. v. Osborne Stern & Co., Inc. , 670 So. 2d

932 (Fla. 1996)).

25 . 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 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). ÐAlthough

this standard of proof may be met where the evidence is in

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 omitte d).

2 6 . Disciplinary statutes and rules Ðmust be construed

strictly, in favor of the one against whom the penalty would be

imposed.Ñ Griffis v. Fish & Wildlife Conserv. CommÓn , 57 So. 3d

929, 931 (Fla. 1st DCA 2011); Munch v. DepÓt of ProfÓl Reg., Div.

o f Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992).

27 . A respondent may not be found guilty of an offense

which has not been charged. See , e.g. , Trevisani v. DepÓt of

Health, 908 So. 2d 1108 (Fla. 1st DCA 2005)(administrative

complaint charged phy sician with a failure to make medical

records; proof of a failure to retain medical records cannot

support a finding of guilt).

2 8 . The First Amended Administrative Complaint against

Respondent alleges that ÐRespondent engaged in sexual misconduct

when she used the massage therapist - patient relationship to

induce or attempt to induce the patient to engage, or to engage

or attempt to engage, the patient,Ñ Officer Q.A., in sexual

activity outside the scope of practice of massage therapy.

29 . Section 480.0 46(1)(o) provides:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(o) Violating any provision of this chapter

or chapter 456, or any rules adopted

pursuant thereto.

30 . Section 480.0485 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.

Sexua l misconduct in the practice of massage

therapy is prohibited.

31 . Florida Administrative Code Rule 64B7 - 26.010 provides

in pertinent part:

(1) Sexual activity by any person or person

in any massage establishment is absolutely

prohibited.

* * *

(3) No licensed massage therapist shall use

the therapist - client relationship to engage

in sexual activity with any client or to make

arrangements to engage in sexual activity

with any client.

(4) As used in this rule, Ðsexual activityÑ

means any dire ct 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 stimulation and includes sexual

intercourse, fellatio, cunnilingus,

masturbation, or anal inte rcourse. 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 penetrat ion, orgasm, or

ejaculation has occurred. Nothing herein

shall be interpreted to prohibit a licensed

massage therapist, duly qualified under Rule

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

irrigation.

32 . The Department presented clear and convincing e vidence

that Officer Q.A. had a massage therapist - patient relationship

with Respondent by demonstrating that he received a paid massage

from Respondent at AFM.

33 . The Department proved by clear and convincing evidence

that Respondent engaged in sexual mi sconduct in the practice of

massage therapy in violation of section 480.0485 and r ule 64B 7 -

26.010, when she: touched Officer Q.A.Ós penis; gestured to him

with her clenched fist in an up and downward motion indicating

masturbation; and agreed to have sex with Officer Q.A.

34 . 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 S o. 2d

1231 (Fla. 5th DCA 1999).

35 . Rule 64B7 - 30.002(1) provides that the penalty for

violating section 480.0485 is a $1,000 fine and revocation of the

massage therapistÓs license.

36 . Rule 64B7 - 30.002(3) provides aggravating and mitigating

circumstances which may be taken into account, allowing the Board

to deviate from the penalties for violations charged.

37 . Because the penalty recommended is within the

disciplinary guidelines, it is unnecessary to make any findings

related to the aggravating or miti gating factors set out in

rule 64B7 - 30.002(3).

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

Meie Li Cris p , L.M.T., violated section 480.046(1)( o ), by

violating section 480.0485. For these violations, it is

recommended that the Board impose a $ 1 , 0 00 administrative fine on

Respondent and revoke RespondentÓs license to practice massage

therapy.

DONE AND ENTERE D this 28 th day of September , 2017 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flor ida 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 28 th day of September , 2017 .

ENDNOTE

1/ The Division of Administrative Hearings was closed on

September 8, 2017, and did not reopen until September 13, 2017,

due to Hurricane Irma.

COPIES FURNISHED:

Philip Aaron Crawford, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Thomas D. Sommerville, Esquire

Law Offices of Thomas D. Sommerville, P.A.

820 North Thornton Avenue

Orlando, Florida 32803

(eServed)

Ann L. Prescott, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32 399

(eServed)

Kama Monroe, Executive Director

Board of Massage Therapy

Department of Health

Bin C - 06

4052 Bal d Cypress Way

Tallahassee, Florida 32399 - 3257

(eServed)

Nichole C. Geary, General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Ta llahassee, 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.