17-002751PL Department Of Health, Board Of Massage Therapy vs. Suhua Zhang, L.M.T. Status: Closed Recommended Order on Monday, July 24, 2017.

Summary: Department of Health proved that Respondent pled nolo contendere to four cases of prostitution, related to the practice of massage therapy, and failed to report the pleas. Recommend revocation and fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 17 - 2751PL

SUHUA ZHANG, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final h earing was scheduled in this case for July 12,

2017. On July 3, the parties moved to proceed instead by

written submissions, including five listed joint exhibits and a

stipulation of facts. The motion was granted, the final hearing

was canceled, and the parties were required to file the

stipulated evidence and a proposed recommended order (PRO) by

July 12. The Petitioner filed the evidence (labeled

PetitionerÓs Exhibits 1 through 5) and a PRO . The Respondent

has not filed anything. The evidence and the PetitionerÓs PRO

have been considered.

STATEMENT OF THE ISSUE S

The issues are whether the Respondent, a licensed massage

therapist, violated section 480.046(1)(c), Florida Statutes

(2010) , 1/ by pleading no lo conte ndere to four separate cases of

prostitu tion; whether , she violated section 456.072(1)(x),

Flo rida Statutes , by failing to report the pleas to the Board of

Massage Therapy within 30 days , as alleged in the Administrative

Complaint filed by the Petitioner ; and, if so, the appropriate

penalty .

F INDING S OF FACT

1. The Petitioner is the state agency charged with

regulating the practice of massage therapy in Florida under

section 20.43 and chapters 456 and 480, Florida Statutes (2017).

2. At all times material to the Administrative C omplaint,

th e Respondent was licensed to practice massage therapy in

Florida, having been issued license number MA 58567 by the Board

of Massage Therapy .

3 . On October 28, 2010, the Respondent entered plea s of

nolo contendere to the crime of prostitution in four se parate

cases in Hillsborough County, Florida , which are identified by

case numbers 10 - CM - 011030 , 10 - CM - 011031, 10 - CM - 011032 , and 10 -

CM - 011417 .

4 . The Respondent did not report any of her plea s in those

cases to the Board of Massage Therapy within 30 day s of entering

the plea.

5 . When t he Respondent pled nolo contendere to the

prostitution charges, adjudication s were withheld and the nolo

contendere pleas were held in abeyance pending the successful

completion of probation.

6. The Respondent did not successfully complete her

probation for any of the four cases , and t he probations were

terminated for non - compliance with the conditions of probation .

7 . Despite her nolo contendere pleas, t he Respondent

testified in this case that she was not guilty o f prostitution.

8 . The Respondent stipulated that the crime of

p rostitution directly relates to the practice of massage therapy

or to the ability to practice massage therapy . Merriam - Webster

defines the term ÐrelateÑ as Ðto show or make a connection

be tween (two or more things) . Ñ There was direct connection

between the RespondentÓs practice of massage and her convictions

for prostitution. T he Respondent used her position as a massage

therapist to offer to commit prostitution.

CONCLUSIONS OF LAW

9 . Because the Petitioner seeks to impose license

discipline, the 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. Turlin gton , 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 s ufficient 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

where the evidence is in conflict, . . . it seems to preclude

evidence that is ambiguous.Ñ Westinghouse Elec . Corp. v. Shuler

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

omitted).

10 . Disciplinary statutes and rules Ðmust be construed

strictly, in favor of the one again st whom the penalty would be

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

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

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

2002); McClung v. Crim. Just. Stds. & Tra ining 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 within a penal statute t hat 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)).

11 . The grounds proven in support of license discipline

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 (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

instrument, unless those matters have b een 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).

1 2 . Count I of t he Administrative Complaint alleges that

the Respondent entered plea s of nolo contendere to pros titution

in four separate cases in Hillsborough County, in violation of

s ection 780.04 6(1)(c), Florida Statutes .

1 3 . Section 480.046(1)(c) provided , in pertinent part:

(1) The following act s c onstitute grounds

for . . . disciplinary action, as specified

in s. 456.072(2) :

* * *

(c) Being convicted or found guilty of,

regardless of adjudication, of a crime in

any jurisdiction which directly relates to

the practice of massage or to the ability to

practice massage. Any plea of nolo

contendere shall be considered a conviction

for purposes of this chapter.

1 4 . Section 796.07(2)(e) , Florida Statutes , made it a

crime for someone over the age of 18 to offer to commit , or to

commit, or to engage in , prostitution, lewdness, or assignation.

1 5 . Section 796.0 7(1)(a) defined prostitution as the

giving or receiving of the body for sexual activity for hire.

1 6 . Sexual activity was defined in section 796.07 (1)(d)

as:

oral, anal, or vaginal p enetration by, or

union with, the sexual organ of another;

anal or vaginal penetration of another by

any other object; or the handling or

fondling of the sexual organ of another for

the purpose of masturbation [except when

done for bona fide medical purpos es] .

1 7 . Lewdness wa s defined in section 796.07 (1)(b ) as Ðany

indecent or obscene act. Ñ Assignation wa s defined in section

796.07 (1)(d) as Ðmaking of any appointment or engagement for

prostitution or lewdness, or any act in furtherance of such

appointme nt or engagement. Ñ

1 8 . Florida Administrative Code Rule 64B7 - 26.010(1) , 2/

prohibits sexual activity by any person or persons in any

massage establishment. Prostitution involves sexual activity

and is forbidden in the practice of massage therapy .

19 . The RespondentÓs crimes of prostitution were directly

related to the practice of massage therapy. The Respondent used

her position as a massage therapist to offer to commit crimes .

See Rush v. DepÓt of Bus. & ProfÓl Reg., Bd. of Podiatry , 448

So. 2d 26, 27 - 28 (Fla. 1st DCA 1984)(although not arising in an

office setting, crime of conspiracy to possess and import

marijuana was a breach of trust and related to the practice of

podiatry, which included dispensing drugs); Doll v. DepÓt of

Health , 969 So. 2d 1 103 (Fla. 1st DCA 2007)(a crime that

demonstrated a Ðlack of honesty, integrity, and judgmentÑ

related to the practice of chiropractic medicine); DepÓt of

Health, Bd. of Medicine v. Algirdas Krisciunas, M.D. , Case 10 -

10229PL (Fla. DOAH June 27, 2011; Fla. DOH Amended FO, Aug. 17,

2011)(five counts of dispensing oxycodone and one count of

conspiring to distribute oxycodone were related to the practice

of medicine, in part, because the respondentÓs medical license

was n ecessary to execute the crime); DepÓt of Health, Bd. of

Medicine v. Christopher Carter, M.D. , Case 12 - 1 575PL (Fla. DOAH

Nov. 26, 2012) (ÐWhether or not a particular crime is related to

a profession is not limited to its connection to the technical

ability to practice the profession .Ñ ). Thus, the crime of

prostitution is directly related to the practice of massage

therapy . The Petitioner proved this charge by clear and

convincing evidence.

20 . Section 480.046(1)(p) provided in relevant part:

(1) The following acts constitute grounds

for . . . 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.

21 . Section 456.072(1)(x ) provided in relevant part:

(x) Failing to report to the b o ard . . . in

writing within 30 days after the licensee

has been convicted or found guilty of, or

entered a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction .

22 . The Respondent did not report her four nolo contendere

p leas to prostitution within 30 days after she entered them.

The Petitioner proved by clear and convincing evidence that the

Respondent violated section 480.046(1)(c), as charged in the

Administrative Complaint.

2 3 . The Board of Massage Therapy imposes p enalties upon

licensees in accordance with the discipl inary guidelines

prescribed in Florida Administrative Code R ule 64B7 - 30.002. See

Parro t Heads, Inc. v. DepÓt of Bus. a nd ProfÓl Reg . , 741 So. 2d

1231 (Fla. 5th DCA 1999).

24 . Rule 64B7 - 30.002 (1)(b) p rovided that the penalty for

violating section 480.046(1)(c) for prostitution or solicitation

for prostitution was a $1,000 fine and revocation. ( The

PetitionerÓs PRO incorrectly cites penalties for misdemeanors

that do not relate to certain crimes with e nhanced penalties ,

one of which is prostitution o r solicitation for prostitution . )

25 . Rule 64B7 - 30.002 (1)(x) provided that the penalty for

violating s ection 456.072(1)(x) ( incorrectly listed as (w) in

the guidelines in place in 2010) was $1,000.00 fin e and

suspension for a first offense and a $1,000.00 fine and

revocation for any subsequent o ffense . Respondent committed

four offenses.

26 . Rule 64B7 - 30.002(3 ) provided that, in applying the

penalty guidelines, the following 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 disci plined 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

licenseeÓs 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 violati ons against licensee in

another state including findings of guilt or

innocence, penalties imposed and penalties

served;

(l) Actual negligenc e 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.

Consideration of the aggravating and mitigating factors do no t

warrant a deviation from the penalty guidelines.

27. Section 456.072(4) provided that the Board of Massage

Therapy sh all assess costs related to the investigation and

prosecution, in addition to other discipline imposed for

violating a practice act.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be en tered : finding

the Respondent guilty of violating section 480.046(1)(c) and

section 456.072(1)(x); fining her $1,000; revoking her license

to practice massage therapy ; and award ing costs of investigation

and prosecution of this matter to the P etitioner .

DONE AND ENTERED this 2 4 t h day of July , 2017 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, 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 24 t h day of July , 2017 .

ENDNOTES

1/ Unless otherwise noted, statutory references are to the 2010

c odification of the Florida Statutes, which was in effect at the

time of the alleged offenses.

2/ All rule references are to the version of the Florida

Administrative Code in effect at the time of the alleged

offenses.

COPIES FURNISHED:

Lealand L. McCharen, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Alex Yu, Esquire

Law Office of Alex Yu, P.A.

Somerset Professional Park

15255 Amberly Drive

Tampa, Florida 33647

(eServed)

Jaquetta Joh nson, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Kama Monroe, Executive Director

Board of Massage Therapy

Department of Health

Bin C - 06

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 32 57

(eS erved)

Nichole C. Geary, General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(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.