17-002441PL Department Of Health, Board Of Massage Therapy vs. Blake C. Rice, L.M.T. Status: Closed Recommended Order on Monday, March 19, 2018.

Summary: DOH proved by clear and convincing evidence that Respondent was guilty of sexual misconduct in massage therapy. Respondent did not explain why Board should deviate from revocation and fine in penalty guideline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 17 - 2441PL

BLAKE C. RICE, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On Febr uary 5 , 2 018, Administrative Law Judge (ALJ)

J. Lawrence Johnston of the Division of Administrative Hearings

(DOAH) conducted a disputed - fact hearing in this case by video

teleconference at sites in St. Petersburg and Tallahassee .

APPEARANCES

For Petitione r: Keith C. Humphrey, Esquire

Eric L. Fryson, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C65

Tallahassee, Florida 32399

F or Respondent: John Angelo Richert, Esquire

Richert Quarles, Esquire

John Richert, P.A.

13575 58th Street North

Clearwater, Florida 33760

STATEMENT OF THE ISSUE S

Whether the Respondent, a licensed massage therapist, should

be disciplined under section 480.046(1)(p), Florida Statutes

(2016), 1/ for sexual misconduct in the practice of massage

therapy; and, if so, the appropriate discipline.

PRELIMINARY STATEMENT

On November 22, 2016, the P etitioner filed an Administrative

Complaint against the Respondent. In January 2017, the

Respondent disputed the charges and requested a hearing. The

Petitioner forwarded the case to DOAH in April 2017, and the

hearing was scheduled for June 27. After t hree continuances for

good cause, the parties filed a Joint Pre - hearing Stipulation and

the hearing was held on February 5, 2018.

At the hearing, the PetitionerÓs Exhibits 1 through 8 were

received in evidence without objection. (These exhibits,

includi ng subparts, are found at Tabs 1 through 16 of the

PetitionerÓs exhibit book.) The Petitioner called two witnesses:

St. Petersburg Police Department Detective Lisa Vanderbilt; and

the complaining patient, R.S. The Respondent testified and

called one wit ness, Alisa Miller.

A Transcript of the hearing was filed, and the parties filed

proposed recommended orders that have been considered.

FINDING S OF FACT

1. The Petitioner licenses and regulates the practice of

massage therapy in Florida, including disci pline of licensees who

are in violation of the governing statutes and rules. The

Respondent holds massage therapy license MA 53361. He has been

practicing massage therapy in Florida for eleven years. There

was no evidence of any violations in that time, other than the

alleged violations at issue in this case.

2. On September 8, 2016, the Respondent (who is male) was

self - employed as a massage therapist in St. Petersburg. R.S. was

a 21 - year - old woman. On that day, R.S. went to the RespondentÓs

place of business to use a Groupon for a Thai yoga massage. They

had never met before. R.S. was running late for her 5 p.m.

appointment and called once to tell the Respondent and again to

ask for directions. The Respondent met her on the street because

his pl ace of business was not marked by prominent signage. He

led her into his nondescript location and therapy room. The

facility appeared to be Ðpretty emptyÑ and Ðjust kind of a roomÑ

with a bed. It gave her a Ðcold weird feeling.Ñ No one else was

on the premises at the time. She asked him if he owned the

place. He said he did. Actually, he rented the space.

3 . Thai yoga massage therapy involves passive stretching

into yoga poses with the physical assistance of the therapist,

and the use of the thera pistÓs hands, fists, elbows, knees and

feet to massage the recipientÓs muscles. Both the recipient and

therapist remain fully clothed, usually in loose - fitting exercise

clothing.

4. In the therapy room, the Respondent had R.S. lay down on

the massage t able face down. The massage proceeded without

incident at first. Then, the Respondent spread and held R.S.Ós

legs apart, lay on top of her, and rubbed his genital area on her

buttocks. She felt his hardened penis pressing against her

buttocks.

5 . At that point, R.S. became upset and uncomfortable with

the RespondentÓs ÐmassageÑ but was afraid to say anything to make

him stop because she was alone in the building with the

Respondent, and she did n o t know how he would react. She ÐfrozeÑ

and said nothin g.

6 . Then, the Respondent flipped R.S. onto her back and

continued with the massage. Her eyes were closed. Eventually,

the Respondent again spread her legs and lay on top of her. She

felt his breath and his dreadlocks on her face. He began rubbing

his genital area against her vaginal area. Again, she felt his

hardened penis. She opened her eyes and saw him in a trance - like

state with his eyes closed. Again, she was afraid to say or do

anything to make him stop. This went on for what R.S. thought

was several minutes before the Respondent stopped, ended the

massage, and brought her water and a towel. He did not apologize

or offer not to accept payment for the massage. R.S. did not say

anything to him about the massage before leaving.

7 . Two da ys later, R.S. contacted the Respondent by text

messaging to complain about his conduct. She texted:

It took me a day or two to decide that I

would like to speak up about how

unprofessional and inappropriate your Thai

massage was. I understand that I was

clothed. But in no way should your crotch be

anywhere near mine. You were clearly

grinding on my private areas. Please do not

try to deny your intention, I am intuitive

and I know when something is not right. I

have been sexually violated before so in the

moment I freeze up and thatÓs why I didnÓt

tell you to stop. I especially felt

uncomfortable when you flipped me over and

you were between my legs rubbing yourself on

me. Please donÓt give me any bullshit that

thatÓs how Thai massage works. I know Thai

massage is a bit intimate but you were

inappropriate without a doubt. I felt very

uncomfortable because I was alone there with

you and I donÓt know you and what you would

have done if I were to tell you to stop or

try to leave. I walked out feeling a bit

violated and no woman should ever feel close

to feeling that way. I could report you and

ruin your career but I am not that kind of

person so I would like to speak to you first.

8 . The RespondentÓs reply did not deny what R.S. wrote.

Instead, he asked for an opportunity to explain. She insisted on

texting. During their exchange of text messages, the Respondent

attempted to explain that he was doing legitimate Thai massage

stretches he thought were best suited to her needs and that he

did not mea n to make R.S. feel uncomfortable. She refused to

accept the explanation, texting in reply:

ItÓs not Thai technique that made me feel

uncomfortable. It was that you spent more

time than [sic] in the positions that had

your crotch rubbing right up again st me,

completely unnecessary. There are many

positions and modifications you could have

taken to avoid contact and it was obvious

that it was purposeful and with intent. IÓm

feeling like I want to report. I just donÓt

want you getting away with that ag ain.

He kept trying to convince her of his good intentions and the

legitimacy of his massage technique. She replied: ÐIÓm not an

idiot and IÓve gotten plenty of massages dude. And I sure as

hell know they taught you in massage school to keep your dick off

a womanÓs vagina.Ñ The Respondent offered to make things right

by giving her a free massage. She declined, texting: ÐI would

never come back there.Ñ Instead, she wrote that he could start

by refunding her money. He agreed, but she said she still w as

not happy and asked: ÐYou really canÓt admit that you can see

how you pushed it? And why I feel this way?Ñ He replied:

I understand. im just trying [to] make

things better. Can I be honest with you [?]

. . . Like im seriously scared. . . . But

im always in a meditative state during the

massage and I swear have never been fully

aroused I cant xplain y I became fully

aroused. And once I noticed what was goin on

I stop[p]ed it.

R.S. replied by denying the Respondent stopped the massage once

he became aroused, writing Ðyou never stopped. You continued

throughout the massage.Ñ The Respondent then admitted it,

writing: ÐNo I kno I didnÓt kno how to handle receiving that

energy and that type of work.Ñ

9 . Eventually, R.S. asked if he really own ed the building

where he gave massages, as he told her at the beginning. He

admitted that he rented space for $400 a month. She then wrote

that she would Ðkeep her mouth shutÑ for $400. She wrote , that

would be a Ðgood dealÑ for him because she could su e him. She

then wrote:

And I need you to promise me that you will

try to stay aware of your physical body

during your meditative state. You need to

learn boundaries and not lead with your dick

n hormones because your f[******] lucky itÓs

me and im givi ng you the option to pay me or

I will sue you.

He replied: ÐOk jus give me lil time. Its [sic] after the

first[.] I done paid all bills already. Have [to] make it

first.Ñ R.S. wrote that she did n o t want to give him time

because she did no t trust him . He begged her to trust him, he

would have the money in a week. She then wrote:

ÐCanÓt believe you were basically having dry

sex with me and acting your [sic] helpless

and couldnÓt stop yourself like youÓre the

victim or some shit. And since I have to

wait, I want 400 as soon as you can and

another 400 for waiting. Then you will never

hear from me again or about this whole thing.

And you sure as hell better not do this to

another woman.

After R.S. reiterated why she was doing him a favor by not

pre ssing charges, he replied: ÐWell I donÓt have it tonight but

may be a week.Ñ

10 . The Respondent did not pay R.S. any money. Instead,

two days after the incident, he filed criminal charges against

her for extortion. Two days after that, R.S. filed crimin al

charges against him for lewd and lascivious behavior. Two days

after that, R.S. filed a complaint with the Department of Health

that eventually resulted in the Administrative Complaint.

11 . The Respondent contends that R.S. was guilty of

extortion, which entirely destroyed her credibility. He argues

that her initial question as to whether he owned the building

proved she was planning to extort him from the beginning and that

she fabricated her allegations as part of her extortion scheme.

He also ar gued that R.S.Ós inability to clearly recall some

details undermined her credibility on the essence of her

allegations. The RespondentÓs arguments have serious flaws.

First, R.S. did not ask for money until after the Respondent

admitted he did not own th e building. Second, her recollection

of the essence of her allegations was crystal clear, and it is

not unreasonable under the circumstances that she would not

recall each and every r elatively unimportant detail. Finally,

and most significantly, the Resp ondentÓs text messages admitted

his wrongdoing. (The RespondentÓs admissions distinguish this

case from the cases cited by him where violations were not proven

by clear and convincing evidence when the alleged victims delayed

reporting sexual misconduct.)

12 . Perhaps recognizing that his admissions were fatal to

his argument that R.S. fabricated her allegations, the Respondent

testified that R.S. was to blame for causing him to become

aroused when she resisted stretching and tried to initiate body

conta ct with the Respondent, tried to Ðcome into his space,Ñ and

Ðlightly touched his hand.Ñ He testified that she also wrapped

her legs around him while she was on her back and pulled him

towards her in a Ðsexualized way,Ñ causing him to lose his

balance and fall on top of her, which caused him to become erect.

He testified that he immediately stopped the massage when this

happened.

13 . R.S. denied the RespondentÓs testimony as to what

happened during the massage. The RespondentÓs testimony cannot

be squa red with his text messages to R.S., or with his admission

that R.S. never made any sexual comments to him during the

massage. R.S.Ós testimony as to the RespondentÓs sexual

misconduct is more credible and is accepted as true.

14 . R.S.Ós offer to accept money for not reporting the

incident was inappropriate and may have been illegal. But it

does not lessen or excuse the RespondentÓs misconduct during the

massage, which was proven by clear and convincing evidence.

CONCLUSIONS OF LAW

15 . Because the Peti tioner seeks to impose license

discipline, it has the burden to prove the 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 wi thout

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 where the

evidence is in conflict, . . . it seems to preclude evidence tha t

is ambiguous.Ñ Westingho use Elec. Corp. v. Shuler Bros ., Inc. ,

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

16 . Disciplinary statutes and rules Ðmust be construed

strictly, in favor 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 also Camejo v.

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

2002); McClung v. Crim. Just. Stds. & Training CommÓn , 458 So. 2d

887, 8 88 (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 within a penal statute that is not

reasonably proscribed by it; if there are an y ambiguities

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

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

17 . The grounds proven in support of the PetitionerÓs

assertio n that the RespondentÓs license should be disciplined

must be those specificall y 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 (Fla. 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

Petitioner from taking disciplinary action against a licensee

based on matters not specifically alleged in the charging

instruments, 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, 967 (Fla. 5th DCA 1992).

18 . The violations charged in the Administrati ve Complaint

were proven by clear and convincing evidence. The Respondent

engaged in prohibited sexual misconduct, as defined in section

480.0485. He also violated Florida Administrative Code Rule

64B7 - 26.010, 2/ which prohibits the use of the therapist - c lient

relationship to engage in sexual activity with a client (defined

as direct or indirect physical contact intended or likely to

erotically stimulate either person). The Respondent also is

subject to discipline under section 480.046(1)(p) for violating

any provision of chapter 480 or 456, Florida Statutes, or any

rule adopted to implement those statutes.

1 9 . At the time of the alleged offense in September 2016 ,

rule 64B7 - 30.002(3)(o)2. provided tha t the penalty for violating

section 480.0485 wa s a $2 ,500 fine and license revocation , and

rule 64B7 - 30.002(3)(o)13 . provided the same penalty for violating

rule 64B7 - 26.010 .

20 . At the time of the alleged offense in September 2016 ,

rule 64B7 - 30.002(4) provided that, in applying the penalty

guidelines, th e aggravating and mitigating circumstances can be

taken into account and can allow the Board of Massage Therapy to

deviate from the penalty guidelines. However, the Respondent has

not offered any rationale for deviating from the penalty

guidelines.

RECOMM 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 the Respondent guilty as charged and, unless

the Respondent offers the Board a persuasive reason for de viating

from the penalty guidelines, revoking his license and fining him

$2,500.

DONE AND ENTERED this 19 th day of March , 2018 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Divisi on 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 1 9 th day of March , 2018 .

ENDNOTE S

1/ The 2016 codification of the Florida Statutes were in effect

in September of 2016. All statutory citations refer to the 2016

codification.

2 / All rule citations are to the rules that were in effect in

September of 2016, when the alleged violations occurred.

COPIES FURNISHED:

Keith C. Humphrey, Esquire

Florida Department of Health

Prosecution Services Unit

Bin C 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

John Angelo Richert, Esquire

John Richert, P.A.

1 3575 58th Street North

Clearwater, Florida 33760

(eServed)

Eric L. Fryson, Esquire

Florida Department of Health

Prosecution Services Unit

Bin C 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Kama Monroe, Executive Director

Board of Massag e Therapy

Department of Heath

4052 Bald Cypress Way, Bin C 06

Tallahassee, Florida 32399 - 3257

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A 02

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO S UBMIT 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.