17-003336PL Department Of Health, Board Of Massage Therapy vs. Xumei Sun, L.M.T. Status: Closed Recommended Order on Tuesday, August 29, 2017.

Summary: Department of Health proved that Respondent pled nolo contendere to prostitution and did not report the plea. Recommend revocation and fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 17 - 3336PL

XUMEI SUN, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hea ring was scheduled in this case for August 16,

2017. On August 8 , the parties moved to proceed instead by

written submissions, including agreed exhibits and a stipulation

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

canceled, and the parties w ere required to file the agreed

exhibits and a proposed recommended order (PRO) by August 16 .

The Petitioner filed the evidenc e (labeled PetitionerÓs

Exhibit 1 , which is a composite of criminal court records, and

Exhibit 2, which is a transcript of the R espondentÓs deposition

in this case ) 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 secti on 480.0 46(1)(c), Florida Statutes

(2015 ) , 1/ by pleading no lo conte ndere to one count of

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

Statutes, by failing to report the plea 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.

FINDING 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,

the Respondent was licensed to practice massage therapy in

Florida, having bee n issued license number MA 76935 by the Board

of Massage Therapy .

3. On January 14, 20 16 , the Respondent entered a plea of

nolo contendere in case 15 - CM - 019206 - A in Hillsborough County,

Florida , to one count of prostitution in violation of section

796.07(2)(e), Florida Statutes (2015), a second - degree

misdemeanor . Adjudication was withheld , and the Respondent was

required to pay $270 in court costs.

4. The Respondent did not report her plea in that case to

the Board of Massage Therapy within 30 days of entering the plea.

5. The Respondent stipulated that the crime of prostitution

is dir ectly related to the practice of massage therapy, and that

offering to perform a sexual act on a massage client during the

course of a massage by a licensed massage therapist is outside

the scope of the practice of massage therapy .

6. Despite her nolo con tendere plea, the Respondent

testified in this case that she was not guilty of prostitution.

She also testified that she entered the plea without fully

understanding its meaning and consequences, and without legal

counsel, and that she would not have ente red the plea had she

known its meanings and consequences. She introduced no other

evidence to corroborate or support her claims.

CONCLUSIONS OF LAW

7 . 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. Turlington , 510 So. 2d 292 (Fla. 1987). This

Ðentails both a qualitative and quantitative standard. The

evi dence 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).

8 . Disciplinary statutes and rules Ðmust be construed

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

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

592 So. 2d 1 136, 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. & Training CommÓn , 458 So. 2d 887,

888 (Fla. 5th DCA 1984) (Ð[W]here a statute provides for

revocation of a l icense 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 any ambiguities

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

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

9 . 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. 2 d 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 Petition er from taking

disciplinary action against a licensee based on matters not

specifically alleged in the charging instrument, 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).

10 . T he Administrative Complaint alleges that the

Respondent pled nolo contendere to pros titution in Hillsborough

County in violation of s ection 780.04 6(1)(c ), Florida Statutes .

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

(1) The following act s constitute grounds

for . . . disciplinary action, as specified

in s. 456.072(2):

* * *

(c) Being convicted or found guilty of,

regardless of adju dication, 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.

12. Section 796.07(2)(e) 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.

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

or receiving of the body for sexual activity for hire.

14. Se xual activity was defined in section 796.07 (1)(d) as:

oral, anal, or vaginal penetration 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 purposes].

15. 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 engage ment for

prostitution or lewdness, or any act in furtherance of such

appointment or engagement. Ñ

16. At the time of the alleged offense in early 2016,

Florida Administrative Code Rule 64B7 - 26.010(1) 2/ prohibited

sexual activity by any person or persons in any massage

establishment. Prostitution involves sexual activity and is

forbidden in the practice of massage therapy .

17. As the Respondent concedes, the crime of prostitution

is directly related to the practice of massage therapy. A

massage therapist who solicits a patient to engage in sex for

money is using her position as a massage therapist to commit the

crime of prostitution . 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 1103 (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 dispe nsing

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 Petitioner proved this charge by clear

and convinc ing evidence.

18. 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 ru les adopted pursuant

thereto.

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

(x) Failing to report to the board . . . in

writing within 30 days after the licensee has

been convicted or found guilty of, or entered

a plea of nolo contendere to, reg ardless of

adjudication, a crime in any jurisdiction .

20. The Respondent did not report her nolo contendere p lea

to prostitution within 30 days. The Petitioner proved by clear

and convincing evidence that the Respondent violated section

480.046(1)(c) , as charged in the Administrative Complaint.

21. The Board of Massage Therapy imposes penalties 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).

22. At the time of the alleged offense in early 2016 , r ule

64B7 - 30.002 (3)(b) provided that the penalty for violating section

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

was a $1,000 fine and revocation.

23. At the time of the alleged offense in early 2016, r ule

64B7 - 30.002 (1)(y) provided that the penalty for violating s ection

456.072(1)(x) was a reprimand, $ 25 0 fine and suspension for a

first offense and a $1,000.00 fine an d continuing education.

24. At the time of the alleged offense in early 2016, rule

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

the following aggravating and mitigating circumstances may be

taken into account, allowing the Board to de viate 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 disciplined by the Board;

(d) The length of time licensee has

practice d;

(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 act ual 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 o r

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

circumstan ces.

The Respondent asks for lenience primarily because she claims she

was not actually guilty of prostitution. However, she pled nolo

contendere, and did not report the plea, which constitute the

violations charged. Her claims that she was innocen t and that

she was not told the consequences of a plea of nolo contendere to

the charge were self - serving and not supported by any other

evidence. Consideration of the applicable aggravating and

mitigating factors balance out, and a deviation from the penalty

guidelines is not warranted.

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

Therapy shall assess costs related to the investigation and

prosecution, in addition to other discipline imposed for

violating a practice act.

RECOMMENDATION

Based on t he foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered : 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 Petitioner .

DONE AND ENTERED this 29th day of August , 2017 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative La w 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 29th day of August , 2017 .

ENDNOTE S

1/ Unless otherwise noted, stat utory references are to the 2015

codification of the Florida Statutes, which was in effect at the

time of the alleged offense .

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

Adm inistrative Code in effect at the time of the alleged offense .

COPIES FURNISHED:

Lealand L. McCharen, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

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)

Cecilie Dale Sykes, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

Jaquetta Johnson, Esquire

Department of Health

4052 Bal d Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(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 - 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 Recommended Order. Any exc eptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.