17-003246PL Department Of Health, Board Of Massage Therapy vs. Ernesto Rodriguez, L.M.T. Status: Closed Recommended Order on Wednesday, August 30, 2017.

Summary: Clear and convincing testimony of victim proved Respondent engaged in sexual misconduct and prohibited sexual activity, and failed to appropriately drape his patient, which warranted a fine of $2,500.00 and revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 17 - 3246PL

ERNESTO RODRIGUEZ, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On July 20 , 20 1 7 , a hearing was held by video

teleconference at locations in Lauderdale Lakes and Tallahassee,

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

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mary A. Iglehart , Esquire

Jaquetta Johnson , Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, F lorida 32399

For Respondent: Michael E. Jones , Esquire

Law Office of Michael E. Jones, P.A.

440 South Andrews Avenue

Fort Lauderdale , F lorida 33 301

ST ATEMENT OF 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 r ule 64B7 - 30.001(5); and , if so, what is

the appropriate sanction.

PRELIMINARY STATEMENT

On April 11 , 201 7 , the Florida Department of Health

( Petitioner or Department) serv ed a n Administrative Complaint

against Ernesto Rodriguez ( Respondent or Mr. Rodriguez) .

Respondent disputed material facts alleged in the complaint and

requested an administrative hearing.

A t the hearing, the parties offered nine joint exhibits :

J - 1 through J - 9 . Petitioner offered two additional exhibits ,

P - 1 and P - 2, while Respondent offered four exhibits, R - 1

through R - 4. All exhibits were admitted without objection,

with the caveat that several contained hearsay that could not,

in itself, support a finding of fact, but could only be used to

support or explain other competent evidence. Exhibit J - 1 was

the deposition transcript of Respondent. Petitioner offered

the testimony of t wo live witnesses: Patient R.A. , a student

and alleged victim ; and Det ective Carlson of the Hallendale

Beach Police Department . Respondent testified on his own

behalf.

The one - volume final hearing T ranscript was filed on

August 8, 2017. Both parties timely filed proposed recommended

order s on August 18, 2017, which were carefully considered in

the 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 January 9, 2017 , the date that the

violation s w ere allegedly committed .

FINDINGS OF FACT

1. The Department of Health, 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, F lorida Statutes.

2. Mr. Rodriguez is a licensed massage therapist within

the s tate of Florida, having been issued license number

MA 75735. He has been licensed since 2014.

3 . Mr. Rodriguez ' s current address and address of record

is 812 N ortheast 2nd St reet , Ap artment 1, Hallandale, F lorida

33009.

4 . On or about January 9, 2017, Mr. Rodriguez was employed

at Om ' e chaye Wellness & Fitness Center ( Om'echaye ) located at

1100 East Hallandale Beach B oulevard , Hallandale Beach, F lorida

33009.

5 . On or about January 9, 2017, Patient R.A., a 24 - year -

old female, received a body scrub and a massage from Respondent.

6 . Patient R.A. had never received a massage at Om ' e chaye

before, though she and her boyfriend lived close by and ha d

eaten lunch at the Om ' e chaye restaurant a few times. It was on

one of these earlier visits that she saw a special promotion for

a body scrub and Swedish massage . She bought a gift c ard for

the promotion for her boyfriend for his birthday . He was not

enthusiastic about ge tting a massage there , however, so they

decided that Patient R.A. would use the c ard herself. She

reported what happened during the massage shortly after the

incident . H er testimony at hearing was detailed and was

consistent with previous accounts . These factors, along with

her demeanor at hearing, made her testimony clear and

convincing, and her testimony is credited.

7 . Patient R.A. ' s appointment was at 6:15 p.m., and she

arrived a few minutes early. The receptionist introduced her to

Mr. Rodrigu ez . In the massage room, Patient R.A., having never

received a body scrub before , asked Mr. Rodriguez whether she

should leave her underwear on, as she had always done during

massages she had received . He told her that no one did that ,

saying that otherw ise it would be difficult to perform the body

scrub. Patient R.A. asked if she should go under covers, but he

directe d her not to. He asked her to lie face up o n the massage

table and left the room so that she could undress. There were

two 16 " x 24 " towels on the table , with which she covered

herself notwithstanding his instruction , placing one over her

lower body and one over her breasts.

8 . Mr. Rodriguez returned to the room and began to wet her

skin with a hot towel. He asked her how she heard ab out

Om'echaye . S he told him about the gift c ard she had originally

bought for her boyfriend ' s birthday , and that it was almost her

birthday and that she was using the c ard . He learned that she

was a foreign student from Germany studying psychology . He told

her that his sister - in - law was a psychologist in Brazil.

Patient R.A. asked him if he was from Brazil, and he told her

no, that he was from Peru. He began the body scrub as they were

talking. He appl ied a coconut and s ugar body scrub solution ,

push ing her legs apart as he quickly work ed up her legs , the

back of his hands touching her vagina several times . As he bent

her leg at the knee the towel slid onto her stomach , exposing

her. He removed the towel completely, touched her vagina again ,

and then scrubbed the front part of her vagina with the body

scrub .

9. Mr. Rodriguez continued working up her body, removing

the upper towel and , without asking her, began scrubb ing her

breasts. A fterwards, he removed the scrubbing solution from the

front of her body with a hot towel. He then asked her to turn

over.

10 . Mr. Rodriguez scrubbed the back body of Patient R.A.

He scrubbed her buttocks and touched her anus with the side of

his hands. After wiping off the body scrub solution, he told

her that he would begin the Swedish massage. Mr. Rodriguez did

not receive consent from Patient R.A. that she would remain

undraped. He dripped hot oil onto Patient R.A. and rubbed it

over her body , rubbing her buttocks , with his hands frequently

against her anus, spilling oil d own her buttocks . He then asked

her to turn over.

11 . He massaged Patient R.A. ' s front, including her

breasts , and touched her vagina. He then began to rub his

finger against her cl it oris . Patient R.A. g ra bb ed his wrist and

told him not to t ouch her down there. He then returned his

massage to her breast area and began to tickle her nipples . He

moved his hands to her lower body several other times, touching

her vagina. He came close to her clitoris, but did not touch

her there again.

12 . Less clear and convincing was Patient R.A. ' s testimony

that Mr. Rodriguez pressed his penis against her elbow at some

point during the massage . In cross examination, she stated :

Q : Now , did you say in your direct

testimony that there was an erect penis that

touched you?

A : At first was the -- I believe so, but I ' m

not sure. That ' s what I said first. And

even -- then I mentioned I felt his genitals,

but I don ' t think he was erect. I ' m no t

sure . I felt it, but if he was erect --

Q : Okay . So something --

A : -- I ' m not sure --

Q: -- something touched you, but you don ' t

know whether it was his penis or his arm

or --

A: His genitals.

Patient R.A. stated at the hearing that she did not see

Mr. Rodriguez touch her, but felt him touch her right arm.

She did not remember how many times. Her testimony that

Mr. Rodriguez pressed his penis against her was not clear and

convincing.

13 . After the massage , Mr. Rodrigue z asked Patient R.A.,

" How was it? " Patient R.A. responded that it was not a Swedish

massage and that he needed to be careful about the way he

performed massage s . She asked him if he always did his massages

like that. He responded saying, " That ' s how I do it with my

clients. I d on ' t know what other massage therapists do. " She

again said that he needed to be very careful with what he was

doing. He apologized, saying, " Thank you for being cool. " He

gave her his business card. He offered to give her a deep tissue

massage for free at his studio. He said that all of his clients

come there because " it is too expensive here. " Patient R.A.

declined. The door to Om'echaye was locked because of the late

hour that she was leaving , and Mr. Rodri guez had to open the door

to let her out. At hearing, Patient R.A. said that she did not

do more to prevent the assault because at first she refused to

believe it was happening and later she was afraid.

14 . Patient R.A. was ashamed of herself when she go t

outside Om'echaye , thinking she should have stood up for herself

more. At first, s he was n o t going to tell anyone that she had

been sexually assaulted, but ended up telling her boyfriend and

going back to Om'echaye early the next morning and talking to the

owner. She met with police later that day and gave them

statements . She later notified the Department .

15 . Respondent denied Patient R.A. ' s account in every

material element. He testified that he never touch ed her vagina,

anus, breasts, nipples, or clitoris , either intentionally or

accidently . He testified that he acted within the scope of

massage therapy practice and that no sexual misconduct occurred.

H e testified that she remained properly draped the entir e time.

He suggested that Patient R.A. made up the entire incident and

that there was no video recording or witnesses. 1/

16 . Respondent also asserted that he would not have

committed sexual misconduct against Patient R.A. because she was

a female and he was gay, and so was not attracted to her.

Curiously, Mr. Rodriguez sought to bolster this claim with

testimony that he had performed some massage ther apy at Ed

Logan ' s, represented to be a gay resort, and that at one time he

had advertised in a gay publication . Since the massage

therapist - patient relationship does not appropriately involve

sexual motivation of any kind -- whether homosexual, bisexual, or

heterosexual -- it is not entirely clear wh y Mr. Rodriguez was

suggesting that these activi ties , even h ad they been supported by

additional documentary evidence of some sort, somehow confirmed

his testimony .

17 . In any event, th e assertion that he was gay, even if

accepted , would not exonerate Mr. Rodriguez in light of the clear

and credible testimony of R.A. in this case. T he definition of

sexual activity i s not limited to physical contact intended to

erotically stimulate the therapist, but also includes contact

intended to erotically stimulate the patient , as well as contact

which is likely to cause such stimulation , regardless of

intention, as di scussed further in the C onclusions of L aw below.

18 . Respondent ' s touching of Patient R.A. ' s breasts,

nipples, anus, vagina, and clitoris, as described by Patient

R.A., was direct physical contact likely to erotically stimulate

either person or both. It was clearly outside the scope of

practice of massage therapy . The touching described by Pat ient

R.A. was sexual activity as defined under the rule. Patient

R.A. ' s testimony was clear and convincing and proved that

Respondent used the therapist - patient relationship to engage in

sexual activity .

1 9. Patient R.A. testified that after reporting th e

incident , she " could not function anymore. " She saw a poster

saying " get a massage for $20 for 30 minutes " on campus , and she

broke out in tears. She started counseling and soon after that

was put on an antidepressant for a period of five months .

20 . Mr. Rodriguez testified that he depends on his massage

business to make his living, that he is no longer working at

Om'echaye spa, and that he has been painting buildings to pay

his bills.

21 . There was no evidence to indicate that Mr. Rodriguez

has ever had any prior discipline imposed in connection with his

massage therapy license.

C ONCLUSIONS 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.

23 . The Department has authority to investigate and file

administrative complaints 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 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)).

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 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 3 98, 404 (Fla. 1994)(quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

26 . 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 b y construction. "

Griffis v. Fish & Wildlife Conserv. Comm ' n , 57 So. 3d 929, 931

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

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

27 . Respondent is charged 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. Section 480.0485 provide s :

The massage therapist - patient relationship

is founded on mutual trust. Sexual

miscondu ct 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 patie nt, in sexual activity outside the

scope of practice or the scope of generally

accepted examination or treatment of the

patient. Sexual misconduct in the practice

of massage therapy is prohibited.

28 . R ule 64B7 - 26.010 prohibits " sexual activity " in the

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

indirect physical contact by any person or between persons that

is intended to erotically stimulate either person or both , or

which is likely to cause such stimulation. "

2 9. Responde nt ' s touching of Patient R.A. ' s breasts,

nipples, anus, vagina, and clitoris, as described by Patient

R.A. , was sexual activity as defined under the rule . Petitioner

proved by clear and convincing evidence that Respondent engaged

in sexual misconduct in t he practice of massage therapy, in

violation of section 480.0485 , and prohibited sexual activity ,

in violation of rule 64B7 - 26.010 .

30 . Respondent was also charged with violation of

r ule 64B7 - 30.001(5) . This rule provide d that failure to drape

the buttocks and genitalia of all clients, and breasts of female

clients, unless the client gives specific informed consent to be

undraped, is a failure to practice massage therapy with that

level of care, skill, and treatment which is recognized by a

reasonab ly prudent similar massage therapist as being acceptable

under similar conditions and circumstances .

31 . The testimony of Patient R.A. was clear and convincing

that Respondent directed Patient R.A. to undress completely and

not use a drape of any kind for the body scrub, later removed

the small towels she had used to cover herself contrary to his

directions, and failed to receive consent from Patient R.A.

before beginning the Swedish massage that she would remain

undraped.

32 . Petitioner proved by clear a nd convincing evidence

that Respondent failed to drape the buttocks, genitalia, and

breasts of Patient R.A. , despite the fact that she had not given

specific informed consent to be undraped, a nd so failed to

p ractice 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 , in violation of rule 64B7 - 30 .0 0 1 (5) .

Penalty

33 . At the time of the incident , s ection 480.046(1)(p)

provide d that disciplinary action may be imposed for violation

of any provision of chapter 480.

34 . Penalties in a licensure discipline case may not exceed

those in effect at the time a violation w as committed. Willner

v. Dep ' t of Prof 'l Re g., Bd. of Med . , 563 So. 2d 805, 806 (Fla.

1st DCA 1990), rev. denied , 576 So. 2d 295 (Fla. 1991).

35 . Section 456.079 require d 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).

36 . The Board of Massage Therapy adopted r ule 64B7 -

30.002(3)(o)2. , which p rovide d that the disciplin e for a

violation of the sexual misconduct prohibition in section

480.0485 should be a fine of $2,500.00 and revocation of the

license .

37 . Rule 64B7 - 30.002(3)(o) 13 . similarly provided that the

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

of $2,500.00 and revocation.

38 . Respondent was also charged in Count II with violation

of rule 64B7 - 30.001(5) , for failure to appropriately drape a

client. While section 480.046(1) ( p) subjects a massage

therapist to discipline for violation of rule s of the Board of

Massage Therapy , Petitioner did not point to any corresponding

penalty guideline established for violation of this particular

rule , and none was found . Respondent was not adequately put on

notice of the penalties he might face for violat ion of the

draping rule , con sequently, no additional penalty has been

recommended for this violation. 2 /

3 9 . Rule 64B7 - 30.002( 4 ) sets forth the following possible

aggravating and mitigating circumstances warranting deviation

from established penalty guideline s :

(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

violation or refusal by licensee to correct

or stop violation;

(k) Related violations against licensee in

another state including findings of guilt or

innocence, penaltie s 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.

40 . There is no evidence that Respondent has ever

previously been disciplined in this or any other state.

Suspension or revocation of his license would have a severe

detrimental effect on his livelihood. On the other hand,

Respondent had full actual knowledge of the violations , and

Patient R.A. was emotionally and mentally damaged by the

violations. While sexual misconduct in the practice of massage

therapy inherently constitutes a great danger to the public,

th at fact is already taken into account in the penalty gui deline

for this offense , and it is not a separate aggravating factor in

the context of this case.

41 . Considered as a whole, t hese factors do not warrant

either mitigation or aggravation of the penalty suggested by the

guideline s.

42 . Section 456.072(4) provides 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.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Massage Therapy , enter a final order finding Ernesto Rodriguez

in violation of section 480.0485, Florida Statutes, and Florida

Administrative Code Rule s 64B7 - 26.010 and 64B7 - 30.001(5) ,

constituting grounds for discipline under section 480.046(1)(p),

Florida Statutes ; imposing a fine of $2,500.00 ; revoking his

license to practice massage therapy ; and imposing costs of

investigation and prosecution.

DONE AND ENTERED th is 30 th day of August , 2017 , in

Tallahassee, 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 30 th day of August , 2017 .

ENDNOTES

1/ Petitioner ' s objection to Respondent ' s attempt to elicit

testimony regarding Patient R.A. ' s prior sexual history was

sustained on this record on the grounds of relevance. See

Esteban v. State , 967 So. 2d 1095, 1099 (Fla. 4th DCA

2007)(admission of sexual history not appropriate except in

instances where the specific incident or re lationship involved

provided a direct motive for fabrication); Dep ' t of Prof ' l Reg.

v. Wise , 575 So. 2d 713, 714 - 15 (Fla. 1st DCA 1991)(while rape

shield statute was not applicable to administrative proceedings,

testimony as to prior sexual histories of vi ctims, including

sexual abuse as children, was not relevant).

2/ Compare § 456.079 , Fla. Stat., with § 455.2273, Fla . Stat . ,

at issue in Arias v. Dep ' t of Bus. & Prof ' l Reg. , 710 So. 2d

655, 659 (Fla. 3d DCA 1998). See also Fernandez v. Fla. Dep ' t

of Health , 82 So. 3d 1202, 1204 - 05 (Fla. 4th DCA 2012).

COPIES FURNISHED:

Mary A. Iglehart, Esquire

Jaquetta Johnson, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Michael E. Jones, Esquire

Law Office of Michael E. Jones, P.A.

440 South Andrews Avenue

Fort Lauderdale, Florida 33301

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Kama Monroe , Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin C - 0 6

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 Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.