17-002964PL Department Of Health, Board Of Massage Therapy vs. Jorge L. Pruneda, L.M.T. Status: Closed Recommended Order on Wednesday, November 1, 2017.

Summary: Respondent's failure to drape patient and sexual misconduct warranted fine of $3500 and revocation of massage therapy license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

M ASSAGE THERAPY ,

Petitioner,

vs. Case No. 17 - 2964 PL

JORGE L. PRUNEDA , L.M.T. ,

Respondent.

/

RECOMMENDED ORDER

On September 6 , 20 1 7 , a hearing was held by video

teleconference at locations in West Palm Beach and Tallahassee,

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

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keith C. Hum p hrey , Esquire

Raj Misra , Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, F lorida 32399 - 3265

For Respondent: Jorge L. Pruneda , p ro se

18 Walcott Drive

Boynton Beach , F lorida 33 426

ST ATEMENT O F THE ISSU ES

The issues in this case are whether Respondent engaged in

sexual misconduct in the practice of massage therapy , in

violation of section 480 .0485 , Florida Statutes ; engaged in

improper sexual activity , in violation of Florida Administrative

Code R ule 64B7 - 26.010 ; or failed to appropriately drape a

client, in violation of section 480.046(1)(i); and , if so, what

i s the appropriate sanction.

PRELIMINARY STATEMENT

On March 20 , 201 7 , the Florida Department of Health

( Petitioner or Department) serv ed a n Administrative Complaint

against Jorge L. Pruneda ( Respondent or Mr. Pruneda ) .

Respo ndent disputed material facts alleged in the complaint and

requested an administrative hearing. An Amended Administrative

Complaint was later substituted at hearing to correct by one day

the date the alleged misconduct occurred, upon the statement of

Resp ondent that th is change would not prejudice his defense in

any way .

A t hearing, Petitioner offered five exhibits , P - 1 , P - 4

through P - 6, and P - 9, all of which were admitted into evidence.

Exhibit P - 1 was the deposition testimony of Ms. Jennifer Mason,

L.M.T. Petitioner also off e red the testimon y of Patient L.G.,

a 2 9 - year - old female and alleged victim , and that of Mr. J .N. ,

Patient L.G. ' s fiancé at the time of the alleged violations ,

and h er husband by the date of the hearing . Respondent offered

f ive exhibits . E xhibits R - 1 through R - 3 were admitted, while

Petitioner ' s objection s to the introduction of E xhibits R - 4 and

R - 5 as being irrelevant were sustained. Respondent testified

on his own behalf and offered the testimony of his wife,

Ms. Niurka Escalas , and that of his wife ' s daughter, Ms. Daily

Lima . Mr. Pruneda participated at the hearing with the

a ssistance of a duly - sworn interpreter, provided by the

Department.

The one - volume final hearing T ranscript was filed on

October 10, 2017. Petitioner timely filed a proposed

recommended order on October 20 , 2017, which w as considered in

preparation of this Recommended Order.

Unless otherwise indicated, citation s to the Florida

Statute s or rules of the Florida Administrative Code refer to

the version s in effect on November 13 , 201 6 , the date that

violation s w ere allegedly committed .

FINDING S OF FACT

1. The Department, Board of Massage Therapy, is the state

agency charged with regulating the practice of massage therapy

with in the state of Florida, pursuant to section 20 .43 and

chapters 456 and 480, Florida Statutes.

2. Mr. Pruneda is a licensed massage therapist within the

s tate of Florida, having been issu ed license number MA 63779.

3. Mr. Pruneda ' s current address and address of record is

18 Walcott Drive, Boynton Beach, Florida 33426.

4 . On or about November 13, 2016, Mr. Pruneda was employed

at Shanti Ohm Spa at 321 N ortheast Seco nd Ave nue , Delray Beach,

F lorida 33444.

5 . On or about November 13, 2016, Patient L.G., a 29 - year -

old female, received a massage from Mr. Pruneda .

6 . Patient L.G. had received massages about 20 times

before, and had received a massage from Mr. Pruneda on one prior

occasio n .

7 . The s pa was normally closed on Sundays, but Patient

L.G. called and requested massage appointments for massages for

herself and her fiancé for Sunday, November 13, 2016 .

8 . Mr . Pruneda testified that when an appointment for a

massage is made, the receptionist gives the name s of the massage

therapist s and the patient chooses among them . However, Patient

L.G. testified that she did not request Mr. Pruneda. In any

event, the spa made special arrangements for Mr. Pruneda and

another massage therapist to come in to the spa on that Sunday.

On November 13, 2016, Patient L.G. said that after filling out

some paperwork, Mr. Pruneda came into the reception area and

that was when she first learned he would be her massage

therapi st.

9 . Before the massage began, Patient L.G. disrobed and lay

face - down on the massage table and covered herself with a large

draping. Patient L.G. was wearing her underwear but no bra.

10 . Patient L.G. testified that at the beginning of the

massage, M r. Pruneda spent an excessive amount of time massaging

the bac k s of her legs and that the strokes were coming very

close to her buttocks , making her feel uncomfortable. After he

moved on to her lower back , the massage went quickly, and she

said that she r emembered wish ing he would spend more time on her

back. After her back, he massaged her arms . Then Mr. Pruneda

asked Patient L.G. to turn over onto her back , and Patient L.G.

complied.

11 . Patient L.G. credibly testified that when she turned

over , Mr. Pruneda did not avert his eyes and that he then failed

to properly drape her , so she had to cover her breasts with the

blanket herself . She did not give consent for him to leave her

undraped.

12 . Patient L.G. testified that Mr. Pruneda again spent a n

excessive amount of time massaging the tops of her legs and that

she felt his hand going under the strap of her underwear. S he

testified that he then moved her underwear aside and touched her

genital area . She testified that she told him " no , no, no, n o. "

She said that her eyes were closed and that she was in shock and

fear. Patient L.G. testified that he had his hand on her

shoulder and said to her, " I f you say no it is no, if you say

yes it is yes. " She said that he di d not try to improperly

touch her again . She said that she felt uncomfortable and she

adjusted the blanket. She testified that Mr. Pruneda continued

the massage on her arms, up to the top , and then massaged her

shoulders.

13 . Patient L.G. did not give informed consent for

Mr. Pruneda to remove the draping from her breasts.

14 . Patient L.G. did not give informed consent for

Mr. Pruneda to adjust or remove her underwear.

15 . Mr. Pruneda agreed that he had performed a massage on

Patient L.G. on one prior occasion , but his testimony was

otherwise contrary to that of Patient L.G. ' s in every relevant

aspect . He denied that he exposed Patient L.G ' s breasts, failed

to appropriately drape her breasts, pulled aside her underwear,

or touched her genital area. He testified that he simply

performed a deep tissue massage with the appropriate level of

care and professionalism.

16 . Mr. J.N. , P atient L.G. ' s fiancé, testified that

although he and Patient L.G. each had an appointment for a

60 - minute massage, h is massage was completed first , and he had to

wait f or 1 0 to 15 minutes for his fiancé to complete hers. He

said that when she came out, he noticed discomfort on her face

and asked her if everything was okay . She replied that it was.

On the way home, he as ked her two more times if everything was

okay , receiving the same response. He testified that when they

had almost arrived at the house, she finally told him that she

had been the victim of sexual misconduct. Patient L.G. confirmed

this account, explaining that she said nothing to her fiancé in

response to his questioning until they were close to the house to

avoid an incident at the spa.

17 . Patient L.G. testified that a fter she returned to the

house , she cal led the spa to report what had happened and , a

couple of days later, also contacted the police.

18 . Mr. Pruneda introduced E xhibit R - 3, a " Square Sales

List " from Shanti Ohm Spa , which contain ed entries dated

November 13, 2016, showing a tip of $20 from Patient L.G. to

" Jorge, " and a tip of $20 from J.N. to his therapist. The list

also shows a single line drawn through the tip of $20 from

Patient L.G. There was speculation at hearing that this was

because the tip was later returned to Patient L.G., but no

evidence from spa personnel was offered to explain the entries

on the list. Mr. Pruneda argues that Patient L.G. would not

have left a tip had she actually been sexually assaulted.

Patient L. G. admitted at hearing that she did leave a $20 tip

for Mr. Pruneda. She stated that she believed if she failed to

do so, her fiancé would realize something was wrong and that she

wished to avoid an incident while at the spa .

1 9. Mr. Pruneda introduced i nto evidence a copy of a

November 14, 2016, posting from a social media internet site

belonging to a business specializing in cosmetic makeovers. The

document showed Patient L.G. after a cosmetic makeover and

contained her comment stating, " Thank you so m uch . . . I had so

much fun today and feel amazing!! Off to rock this photo shoot

thanks to you ladies!! " While Mr. Pruneda argues that this

social media posting showed that Patient L.G. ' s attitude on

November 14, 2016, was completely inconsistent with t hat of a

person who had actually suffered a sexual assault on the

previous day, this argument is not accepted. Patient L.G.

admitted the posting, but explained that the appointment had

been made some time before, could not be rescheduled, and that

she was obliged to go on with the session in order to meet

deadlines for her upcoming wedding.

20 . Both the original and the Amended Administrative

Complaint also charged that Mr. Pruneda touched Patient L.G. ' s

breasts without her consent . Further, Ms. Mason, expert witness

of Petitioner, testified by deposition , based in part upon her

review of the administrative report that had been prepared , that

she was of the opinion that Mr. Pruneda ' s improper touching of

Patient L.G. ' s breasts constituted sexual miscondu ct. Yet a t

hearing, no evidence of Mr. Pruneda improperly touch ing or

tr ying to massage Patient L.G. ' s breasts was presented. 1 / At

that time, Patient L.G. , the only person who could have made

such an accusation, testified :

Q: Did Mr. Pruneda ever try to massage

anywhere on your chest?

A: He was massaging my shoulder area. B ut

no.

21 . Patient L.G. testified that after the incident , she

was very upset for a very long time. Mr. J.N. testified that

P atient L.G. felt nervous and had breakdowns . He test ified that

their relationship had changed a little bit, but that they were

working to make it better and improve it going forward.

22 . Patient L.G. ' s testimony as to the events that took

place at the Shanti Ohm Spa on November 13, 2016, was precise,

clear , and convincing .

23 . Ms. Mason credibly testified that she was familiar

with the standards of practice of massage therapists in Florida

and that the failure to properly drape a patient without express

permission falls below those standards.

24 . Mr. Prun eda was fired from Shanti Ohm Spa . 2/ He was

restricted from the practice of massage therapy on female

patients and , at the time of hearing , was no longer working as a

massage therapist.

25 . Ms. Escalas test ified that she has been married to

M r. Pruneda for 2 0 years and had been with him several years

before they were married . She testified that t he charges

against him have d amaged their lives and that it has been

shameful to have to admit t h at he was being investigated. She

testified that h e was now w orking in a cleaning company , and

eventually , would be working at a shower door company, but was

making less money than he made as a massage therapist.

26 . Ms. Lima testified that although Mr. Pruneda is not

her biological father, he has been just like her father for

20 years. She said that he has always demonstrated high values

a s a person and that he has never acted badly in all of that

time. She testified that the accusations have greatly damaged

the family.

27 . Mr. Pruneda has been licensed as a massage therapist

for 30 years.

28 . Mr. Pruneda has n ever had any prior discipline imposed

in connection with his massage therapy license.

2 9. The case management system of the Clerk and

C omptroller of Palm Beach County, Florida , contains no record of

felony, criminal traffic, or misdemeanor charges involving

Mr. Pruneda.

C ONC LUS IONS OF LAW

30 . 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 , an d

120.57( 1) , Florida Statutes.

31 . Petitioner has authority to investigate and file

administrative complaints charging violations of the laws

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

32 . 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 Comm ' n , 281 So. 2d 487,

491 (Fla. 1973). Petitioner must therefore prove the charges

against Respondent by clear and c onvincing 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)).

33 . 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 co nfusion 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)).

34 . 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 & Wildlife Conserv. Comm ' n , 57 So. 3d 929, 931

(Fla. 1st D CA 2011); Munch v. Dep ' t of Prof ' l Reg., Div. of Real

Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992).

35 . Respondent is charged in Count I with engaging in

sexual misconduct in the practice of massage, in violation of

section 480.0485 , and engaging in prohibited sexual activity,

in violation of rule 64B7 - 26.010. On November 13, 2016,

s ection 480.0485 provide d :

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 eng age or attempt to engage

the patient, in sexual activity outside the

scope of practice or the scope of generally

accepted examin ation or treatment of the

patient. Sexual misconduct in the practice

of massage therapy is prohibited.

36 . R ule 64B7 - 26.010 prohibit ed " sexual activity " in the

therapist - client relationship, defined in part as " any direct or

indirect physical contact by any person or between pe rsons that

is intended to erotically stimulate either person or both , or

which is likely to cause such stimulation. "

37 . Patient L.G. ' s testi mony that Respondent

inappropriately pulled her underwear aside and touched her

genital area was clear and convincing . There was no competent

evidence that Respondent ever touched her breasts.

38 . Petitioner prove d by clear and convincing evidence

that Respon dent violated section 480.046(1)(p), by engaging

in sexual misconduct or sexual activity in violati on of

section 480.0485 and rule 64B7 - 26.010.

3 9. Respondent was also charged in Count II with violation

o f section 480.046(1)(i), which provided that the failure to

practice massage with that level of care, skill, and treatment

which is recognized by a reasonably prudent massage therapist as

being acceptable under similar conditions and circumstances , was

grounds for disciplinary action. R ule 64B7 - 30.001(5) provides

that without specific informed consent, the failure to

appropriately drape a client, including draping of the genitalia

of all clients, and breasts of female clients, constitutes the

failu re to practice massage therapy with that level of care,

skill, and treatment which is recognized by a reasonably prudent

similar massage therapist as being acceptable under similar

conditions and circumstances . Ms. Mason credibly testified that

she was fa miliar with the standards of practice of massage

therapists in Florida and that the failure to properly drape a

patient without their express permission falls below those

standards.

40 . Petitioner proved by clear and convincing evidence

that Respondent fa iled to properly drape Patient L.G. and failed

to practice massage with that level of care, skill, and

treatment which is recognized by a reasonably prudent massage

therapist as being acceptable under similar conditions and

circumstances, in violation of s ection 480.046(1)(i ) .

Penal ty

41 . Section 480.046(1)(p) provided that disciplinary

action may be imposed for violation of any provision of

chapter 480.

42 . Penalties in a licensure discipline case may not exceed

those in effect at the time a violation wa s 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).

43 . Section 456.079, Florida Statutes, required the Board

of Massage Therapy 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).

44 . Th e Board of Massage Therapy adopted r ule 64B7 -

30.002(3)(o)2., which provided that the discipline for a

violation of the sexual misconduct prohibition in

section 480.0485 should be a fine of $2,500 and revocation of

the license.

45 . Rule 64B7 - 30.002(3)(o)1 3., similarly , provided that

the discipline for a violation of rule 64B7 - 26.010 should be a

fine of $2,500 and revocation.

46 . Rule 64B7 - 30.002(3)( i ) provided that the discipline

for a first violation of section 480.046(1)(i) should be a fine

of $ 1,0 00 and probation .

47 . On November 13, 2016, r ule 64B7 - 30.002(4) set forth

possible aggravating and mitigating circumstances warranting

deviation from established penalty guidelines, including:

(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 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

violat ion 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 related offenses

under subsections (1) and (2) above;

(n) Any other mitigating or aggravating

circumstances.

48 . There is no evidence that Respondent has ever

previously been disciplined in this or any other stat e.

Suspension or revocation of his license would have a severe

detrimental effect on his livelihood. On the other hand,

Respondent had full actual kno wledge of the violations , and

Patient L . G . was emotionally damaged by the violations. While

sexual misc onduct in the practice of massage inherently

constitutes a great danger to the public, that fact is already

taken into account in the penalty guideline for this offense ,

and it is not a separate aggravating factor in the context of

this case.

4 9 . Consider ed as a whole, these factors do not warrant

either mitigation or aggravation of the penalty suggested by the

guidelines.

50 . Section 456.072(4) provide d 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.

RECOMMENDA TION

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 Jorge L. Pruneda in violat ion of section s

480.0485 and 480. 046(1)(i) and r ule 64B7 - 26.010 ; imposing a fine

of $ 3 ,500 ; revoking his license to practice massage therapy ; and

imposing costs of investigation and prosecution.

DONE AND ENTERED this 1st day of November , 2017 , in

Tallahass ee, Leon County, Florida.

S

F. SCOTT BOYD

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 1st day of November , 2017 .

ENDNOTE S

1/ Although Patient L.G. testified that she gave contemporaneous

accounts of sexual misconduct, first to spa personnel and then

to the police, no evidence as to the content of these accounts

was offered at hearing. A CD Audio of a Delray Beach Police

Controlled Call and CD/DVD of a Delray Beach Police Interview

with Respondent were listed as Petitioner Exhibits, but were

with drawn at hearing. In a civil trial, it is not clear whether

section 90.801(2)(b), Florida Statutes, would allow the

introduction of her previous statements to spa personnel or

police, but in an administrative hearing, chapter 120 allows the

introduction o f hearsay, even in the absence of an exception,

for the purpose of supplementing or explaining other competent

evidence.

2 / Mr. Pruneda ' s response to Interrogatories on June 12, 2017 ,

and his testimony at hearing on September 5, 2017, indicated

that he was f i red from his job at Shanti Ohm Spa following the

allegations against him , testimony which is credited . In

between these two accounts, in his depo sition on August 24,

2017, Mr. Pruneda stated that the spa took no disciplinary

action against his emplo yment , that it was he who " took the

initiative , " and that no one from Shanti Ohm Spa ever told him

he was terminated. Th is version may have been colored by

embarrassment. Under all of the circumstances, however, th is

minor discrepancy was not considered a critical factor in

assessing Mr. Pruneda ' s credibility.

COPIES FURNISHED:

Keith C. Humphrey, Esquire

Raj Misra, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Jorge L. Pruneda

18 Walcott Drive

Boynton Beach, Florida 33426

Nichole C. Geary, General Counsel

Florida Department of Health

4052 Bald Cypress Way , B in A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Kama Monroe, Executive Director

Board of Massage Therapy

Florida Department of Health

4052 Bald Cypress Way , Bin C - 06

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 Recommende d Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.