17-003337PL Department Of Health, Board Of Massage Therapy vs. Qian Gao, L.M.T. Status: Closed Recommended Order on Wednesday, November 1, 2017.

Summary: Department of Health proved sexual misconduct (prostitution) by a licensed massage therapist. Clear and convincing evidence standard of proof was met.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF MASSAGE THERAPY,

Petitioner,

vs. Case No. 17 - 3337PL

QIAN GAO, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final h earing in this case was held on September 14,

2017. It was conducted by video teleconference between sites in

Tampa and Tallahassee. J. Lawrence Johnston was the

Administrative Law Judge.

APPEARANCES

For Petitioner: Lealand L. McCharen, Esquire

Elana J. Jones, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Alex Yu, Esquire

Law Offic e of Alex Yu, P.A.

Somerset Professional Park

15255 Amberly Drive

Tampa, Florida 33647

STATEMENT OF THE ISSUE S

The issues are whether the Respondent, a licensed massage

therapist, violated applicable sections of the Massage Practice

Act, by attempting to engage in prohibited sexual activity with a

client or patient; and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

The Petitioner filed an Administrative Complaint against the

Respondent in April 2017. The Respondent denied the charges and

requested a hearing. The matter was referred to the Division of

Administrative Hearings on June 12 and was scheduled for hearing

on August 9. On the PetitionerÓs unopposed motion, the h earing

was continued to September 14.

At the hearing, the Petitioner called one witness,

Hillsborough County SheriffÓs Office Detective M.D. PetitionerÓs

Exhibit 1 was received in evidence . T he Respondent testified

with the help of a Mandarin Chinese/E nglish interpreter. After

the hearing, the Transcript was filed, and the Petitioner filed a

Proposed Recommended Order. (The Respondent did not.)

FINDING S OF FACT

1. The Petitioner is the state agency charged with

regulating the practice of massage ther apy in Florida under

section 20.43 and chapters 456 and 480, Florida Statutes (2015) . 1 /

2. In 2015 , the Respondent was licensed to practice massage

therapy in Florida, having been issued license number MA 67956 by

the Board of Massage Therapy.

3. In No vember 2015, the Vice Unit of the Hillsborough

County SheriffÓs Office conducted an operation to investigate a

complaint that prostitution was taking place at VIP Massage

(VIP), located at 5915 Memorial Highway in Tampa, which

advertised Ðhot, beautiful, f riendly Asian ladiesÑ under the

Ðbody rubÑ section of advertisements on an internet website.

4 . On November 12, 2015, Detective M.D., who was working

undercover, entered VIP. He was met by the Respondent, and she

confirmed the appointment for a one - hou r massage that he had made

the day before, led him to a massage room, and collected the

$60 charge. She then left the room with the money and returned

after M.D. disrobed, except for his boxer shorts, and got on the

massage table.

5 . The Respondent pe rformed the hour massage in an

appropriate manner and left to get M.D. some water. When she

returned she asked him why he did not remove his boxer shorts.

He said he was shy. She then asked if he was the police. He

said, no, he was just shy. At this p oint, the Respondent made a

hand motion indicating masturbation and asked, Ðdo you want?Ñ

M.D. asked, Ðhow much?Ñ She said, Ð40,Ñ meaning $40. M.D. asked

if she would ÐsuckÑ him, referring to oral sex. The Respondent

said, Ðno, only,Ñ and repeated the hand gesture for masturbation.

He declined, saying that he was too shy, and that he was married.

This was a pre - arranged signal for his investigative team of law

enforcement officers to enter the VIP and make an arrest for

prostitution.

6 . M.D. identi fied the Respondent to the arresting officers

and explained to the Respondent that she was being arrested for

prostitution. The Respondent understood the charge and loudly

denied it.

7 . The Respondent again denied the charges in her testimony

at the he aring. She said there was a misunderstanding between

M.D. and her due to her poor command of English (and his

inability to speak or understand Chinese). She said that she

actually asked M.D. if he wanted an additional hour of massage

and that she was ref erring to the charge for that when she said,

Ð40.Ñ

8 . Although there were some minor details of M.D.Ós

testimony that were inconsistent or misremembered and later

corrected, his testimony as to essentially what occurred at VIP

on November 12, 2015, was clear and convincing, especially since

it was consistent with what was in the arrest affidavit he signed

under oath that same day.

9 . The RespondentÓs argument that it was all a

misunderstanding due to a language barrier is rejected. She

appeared to ha ve little difficulty understanding some of the

conversation between him and her regarding his massage, or

understanding the criminal charge when she was arrested, and

there was no mistaking the meaning of her hand gesture for

masturbation.

10 . The Respo ndent also raised the question why she would

have waited until returning with water to ask if he wanted her to

masturbate him. While there is some appeal to the logic of her

argument at first blush, there are a number of plausible

explanations for her tim ing.

CONCLUSIONS OF LAW

11 . 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 (Fl a.

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

mu st be of sufficient 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 evide nce 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).

12 . Disciplinary statutes and rules Ðmust be construed

strictly, in f avor 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 Camejo v. DepÓt

of Bus. & ProfÓl Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002);

McClung v. Cr im. Just. Stds. & Training 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 wit hin 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)).

13 . The grounds proven in support of license disc ipline

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

1 29 (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 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).

1 4 . Count I of the Administrati ve Complaint alleges that

th e Respondent violated sections 4 80.046(1)(p) and 480.048 5,

Florida Statutes. At the time of the alleged off ense in November

2015, section 4 80.046(1)(p) made it a ground for license

discipline for a licensed massage therapist to violate a

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

adopted under those statutes; and section 480.0485 stated that

the massage therapist - patient relationship is founded on mutual

trust and that sexual misconduct in the practice of mas sage

therapy violates that relationship and is prohibited.

15 . Count II of the Administrative Complaint alleges that

the Respondent is subject to license discipline for engaging or

attempting to engage in sexual misconduct, as defined in section

456.063 (1), which was prohibited by section 456.072(1)(v) at the

time of the alleged offense in November 2015.

1 6 . The charges in the Administrative Complaint were proven

by clear and convincing evidence.

1 7 . The Board of Massage Therapy imposes penalties u pon

licensees in accordance with the disciplinary guidelines

prescribed in Florida Administrative Code Rule 64B7 - 30.002. 2/ See

Parrot Heads, Inc. v. DepÓt of Bus. and ProfÓl Reg. , 741 So. 2d

1231 (Fla. 5th DCA 1999).

18 . At the time of the alleged offen se in November 2015,

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

section 480.0485 is a $2,500 fine and license revocation and

rule 64B7 - 30.002(3)(x) provided that the penalty for violating

section 456.072(1)(v) was a $2,500.00 fine an d license

revocation.

19 . At the time of the alleged offense in November 2015,

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

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 disciplined by the Board;

(d) The length of time licensee has

prac ticed;

(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 violations against licensee in

another state including findings of gui lt 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

circum stances.

Consideration of the applicable aggravating and mitigating

factors balance out, and a deviation from the penalty guidelines

is not warranted.

2 0 . At the time of the alleged offense in November 2015,

section 456.072(4) provided that the Board of Massage Therapy

shall assess costs related to the investigation and prosecution,

in addition to other di scipline imposed for violating the Massage

Practice A ct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMM ENDED that a final order be entered: finding

the Respondent guilty of violating sections 480.046(1)(p),

480.0485, and 456.072(1)(v); fining her $2,500; revoking her

license to practice massage therapy; and awarding costs of

investigation and prosecution o f this matter to the Petitioner.

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

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 .

ENDNOTES

1/ Unless otherwise note d, statutory 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

Administrative Code in effect at the time of the alleged offe nse.

COPIES FURNISHED:

Alex Yu, Esquire

Law Office of Alex Yu, P.A.

Somerset Professional Park

15255 Amberly Drive

Tampa, Florida 33647

(eServed)

Lealand L. McCharen, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Elana J. Jones, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1 701

(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 exc eptions 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.