17-005473 Department Of Health, Board Of Massage Therapy vs. Bbk Florida, Llc Status: Closed Recommended Order on Tuesday, March 13, 2018.

Summary: The Department established, by clear and convincing evidence, that Respondent allowed an unlicensed individual practice massage therapy in its establishment, which warrants administrative sanctions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 17 - 5473

BBK FLORIDA, LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hear ing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), 1/ on December 20, 2017, by

video teleconference with sites in Tallahassee and Orlando,

Florida.

APPEARANCES

For Petitioner: Lealand L. McCharen, Esquire

Department of Health

4052 Bald Cypress Way, Bin C 65

Tallahassee, Florida 32399 - 3265

For Respondent: Baya W . Harrison, Esquire

Burr & Forman LLP

200 South Orange Avenue , Suite 800

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

The issues to be determined in this matter are whether

Respondent, BBK Florida, LLC , a licensed massage business,

allowed an unlicensed person to practice massage therapy; and, if

so, what disciplinary action is appropriate.

PRELIMINARY STATEMENT

On June 19 , 2017, Petitioner, Department of Health (the

ÐDepartmentÑ), issued an Administrat ive Complaint, charging

Respondent , BBK Florida, LLC (ÐBBKÑ) , a licensed massage

business, with allowing an unlicensed person to practice massage

therapy.

BBK denied the DepartmentÓs allegations of wrongful conduct

and timely requested an administrative hearing to dispute the

Administrative Complaint. On October 3 , 2017, the Department

referred this matter to the Division of Administrative Hearings

(ÐDOAHÑ). The undersigned Administrative Law Judge was assigned

to conduct a chapter 120 evidentiary heari ng.

The final hearing was held on December 20 , 2017. At the

final hearing, the Department presented the testimony of Amy

Harmon . Department Exhibit 1 w as admitted into evidence. BBK

presented the testimony of Min Zhang and Juan Feng. 2/ BBK

Exhibit 1 w as admitted into evidence.

A one - volume Transcript of the final hearing was filed at

DOAH on January 16, 2018 . At the close of the hearing, the

parties were advised of a ten - day timeframe after receipt of the

hearing transcript to file post - hearing submit tals. Both parties

filed Proposed Recommended Orders whi ch were duly considered in

preparing this Recommended Order. 3/

FINDING S OF FACT

1. The Department is the state agency charged with

regulating the practice of massage therapy in Florida. See

§ 20. 4 3(3)(g)21 . , and ch . 4 56 and 480 , Fla. Stat.

2. BBK is a licensed massage business in the state of

Florida. BBK operates under the name ÐBBK Massage SpaÑ and is

located in Ocoee, Florida.

3 . The Department brings this action alleging that BBK

allowed an unlicensed person to practice massage at its

establishment. The Department cha rges BBK with violating section

480.046(1)(f) and (p) , Florida Statutes . Section 480.046(1)(f)

prohibits the Ð[a] iding, assisting, procuring, or advising any

unlicensed person to practice massage contrary to the provisions

of this chapter or to a rule of the department or the board .Ñ

4. The DepartmentÓs allegations focus on the activities of

Xiaohui Lu at BBK on January 17, 2017. Ms. Lu is not, nor has

she ever been, licensed to practice massage in the state of

Florida.

5. At the final hearing, the Department presented the

testimony of Amy Harmon, a Department Investigation Specialist.

Ms. Harmon has served as an Investigation Specialist since 2010.

She conducts approximat ely 700 to 1,000 investigations a year.

Ms. Harmon inspects several different types of businesses

including massage facilities, optical establishments, and pain

management institutions. Her goal is to inspect each business

for which she is responsible a t least once a year.

6. Ms. Harmon explained that the primary reason for

inspecting massage establishments is to safeguard the public

against health risks. As stated in section 480.033(3), ÐmassageÑ

involves:

[T ] he manipulation of the soft tissues of the

human body with the hand, foot, arm, or

elbow, whether or not such manipulation is

aided by hydrotherapy, including colonic

irrigation, or thermal therapy; any

electrical or mechanical device; or the

application to the human body of a chemical

or herbal p reparation.

Consequently, the Florida Legislature has specifically determined

that :

[T] he practice of massage is potentially

dangerous to the public in that massage

therapists must have a knowledge of anatomy

and physiology and an understanding of the

rel ationship between the structure and the

function of the tissues being treated and the

total function of the body. Massage is

therapeutic, and regulations are necessary to

protect the public from unqualified

practitioners. It is therefore deemed

necessary in the interest of public health,

safety, and welfare to regulate the practice

of massage in this state.

§ 480.032, Fla. Stat.

7 . In light of this legislative directive, Ms. Harmon

explained that when she inspects a massage business, her goal is

to ensu re that customers are not touched or treated in an

inappropriate manner. Ms. Harmon remarked that licensed massage

therapists receive extensive training in anatomy and physiology.

They are specifically taught how to manipulate soft tissue without

damagin g a personÓs muscles, neck, or spine. Therefore, s he

ensures that all persons who provide massages are properly

licensed in Florida, and that their licenses are appropriately

displayed in the business. She also examines the massage

facilityÓs sanitary co nditions.

8. On the morning of January 17, 2017, Ms. Harmon conducted

a routine inspection of BBK. Ms. Harmon relayed that BBK is

located in a strip mall. When she entered the store, she walked

into a large lobby area with a reception desk and several chairs.

A single hallway led straight back from the lobby and ended in a

kitchen space. Several doorways lined the hallway. At least

three of these rooms are used for massage services. Curtains

partition the massage rooms from the hallway.

9. Ms. Har mon did not find anyone present in the lobby.

Therefore, she headed toward the hallway. As she reached the

hallway, she saw a woman walk out of one of the massage rooms.

Ms. Harmon observed that the woman (later identified as Ms. Lu)

was holding her han ds out in front of her with her palms up. Her

hands were covered in oil.

10. Ms. Harmon announced to Ms. Lu that she was an

inspector with the Department. Ms. Harmon then asked Ms. Lu if

she had a message therapy license. Ms. Lu responded that she did

not have a massage license, but she was not performing a massage.

Instead, Ms. Lu produced a body wrapper license issued by the

Florida Department of Business and Professional Regulation, as

well as a New York drivers license.

11. Ms. Harmon then wal ked into the massage room that

Ms. Lu had just vacated. There, she found a man lying on a

massage table draped in a sheet. Ms. Harmon did not observe any

body wrapping materials or supplies in the room. (Neither did

Ms. Harmon subsequently find any bod y wrapping advertisements on

the premises.) Ms. Harmon deduced that the oil on Ms. LuÓs hands

was used for massages, not body wrapping treatments.

Consequently, Ms. Harmon concluded that the customer was prepared

to receive a massage, and that Ms. Lu was going to provide it.

12. Ms. Harmon did not ask Ms. Lu if she was, in fact,

giving a massage to the man on the table. Neither did she

actually see Ms. Lu physically touch the customer. However,

based on her observations, she firmly believed that when she

walked into BBK, Ms. Lu was in the process of providing a massage

to the man lying on the table in the massage room.

13. At that point, another woman, who identified herself as

Min Zhang, emerged from the last room down the corridor (the

kitchen). Ms. Zhang produced a Florida massage therapy license

for Ms. Harmo n, as well as a Florida drivers license. Ms. Zhang

then entered the massage room to attend to the customer.

14. Ms. Harmon further recounted that, in another room, she

found a suitcase bel onging to Ms. Lu by a bed. Ms. Harmon

learned from the two women that Ms. Lu had only a rrived at BBK

that morning.

15 . In response to the DepartmentÓs allegations, BBK flatly

denied that Ms. Lu was practicing massage when Ms. Harmon

inspected its busine ss on January 17, 2017 . Instead, BBK

asserted that Ms. Zhang, who is properly licensed, was the

individual massaging the client at the time Ms. Harmo n entered

the establishment.

16. Ms. Zhang testified at the final hearing. Ms. Zhang

was the store mana ger on the date of the inspection. Ms. Zhang

holds a valid ma ssage therapy license with the S tate of Florida.

17. Ms. Zhang declared that January 17, 2017, was Ms. LuÓs

first day at BBK. She had never met or spoken to Ms. Lu before

that morning. Conseq uently, Ms. Zhang claimed that she was

unaware that Ms. Lu did not have a massage therapy license when

Ms. Harmon arrived at the business. Ms. Zhang understood that

BBK hired Ms. Lu through the internet. She did not participate

in BBKÓs decision to allow Ms. Lu to work at its facility.

18. Ms. Zhang relayed that on the morning of the

inspection, she was the first employee to arrive at BBK. Ms. Lu

appeared shortly thereafter. Ms. Zhang introduced herself, then

showed Ms. Lu around the store.

19. Be fore long, the client showed up. Ms. Zhang testified

that she led the client back to massage room 3 for an hour - long

massage.

20. According to Ms. Zhang, she, not Ms. Lu, was massaging

the customer when Ms. Harmon entered BBK. Ms. Zhang stated that

sh e heard Ms. Harmon walk in the front door. She then left the

massage room and met Ms. Harmon in the lobby. Ms. Zhang

testified that Ms. Lu was not in a massage room or the hallway.

Instead, she was located back in the kitchen. After Ms. Zhang

exited ma ssage room 3, she saw Ms. Lu walking to the lobby to

meet Ms. Harmon. Thereafter, both Ms. Zhang and Ms. Lu produced

their licenses and identifications for Ms. Harmon. Ms. Zhang

expressed that it was at this time that she learned that Ms. Lu

was not a li censed massage therapist.

21. Ms. Zhang readily acknowledged that a person is not

allowed to practice massage therapy without a license. Ms. Zhang

professed that she was well aware that Ms. Lu could not have

massaged any BBK clients unless she held a lic ense in Florida.

Ms. Zhang emphasized that neither she, nor BBK, would allow

anyone to provide massages without a license. Ms. Zhang

maintained that Ms. Lu never touched the client.

22. BBK also presented the testimony of Juan Feng.

Ms. Feng identifi ed herself as the main manager of BBK. Ms. Feng

runs the business, while Ms. Zhang manages the day - to - day

operations. Ms. Feng was not present at BBK during Ms. HarmonÓs

inspection on January 17, 2017.

23. According to Ms. Feng, BBK first communicated w ith

Ms. Lu after it posted a job opening for a massage therapist over

the internet. Ms. Feng conveyed that BBKÓs advertisement

specifically stated that a Florida massage license was required

for the position. Ms. Lu, who was living in New York, called B BK

about the job. Ms. Feng testified that Ms. Lu represented that

she was licensed in both New York and Florida.

24. Because Ms. Lu appeared qualified for the massage

therapist job, BBK invited her to come to Florida for a trial

employment period . Ms. L u travelled by bus. She arrived in

Florida on the afternoon of Monday, January 16, 2017. She showed

up at BBK for the first time on Tuesday morning, January 17, 2017

(the date of Ms. HarmonÓs inspection). Ms. Feng remarked that,

while she had spoken wit h Ms. Lu approximately three times over

the phone, she never met her in person before the DepartmentÓs

inspection.

25. Ms. Feng learned about the inspection from Ms. Zhang,

who called her just after Ms. Harmon left. Ms. Feng repeated

that the first time she, or anyone else at BBK, was aware that

Ms. Lu did not have a Florida massage therapy license was during

Ms. HarmonÓs inspection. Ms. Feng pronounced that she would

never have hired Ms. Lu if she had known that Ms. Lu did not have

a valid F lorida licen se.

26. Ms. Feng expressed that after the inspection, she

explained to Ms. Lu that she would not be allowed to work at BBK

without the required massage license. Ms. Feng represented that

Ms. Lu never returned to BBK following Ms. HarmonÓs inspection.

Ms . Feng understood that Ms. Lu went back to New York. (Neither

party called Ms. Lu to testify at the final hearing.)

27. Although Ms. Feng was not present at BBK during the

inspection, she testified that she has seen the storeÓs security

video recording of Ms. HarmonÓs visit. According to Ms. Feng,

BBK has four video cameras mounted inside the facility. Two

cameras survey the lobby, and two cameras are positioned at

either end of the hallway.

28. However, Ms. Feng disclosed that the video recording

f rom January 17, 2017, no longer exists. The video footage is

automatically recorded over after seven days. Therefore, while

she claimed to have watched the video shortly after Ms. Harmon

departed the store, BBK could not produce the video for the

Departm ent or at the final hearing.

29. At the final hearing, Ms. Feng described what she

watched on the video. Ms. Feng relayed that she saw Ms. Zhang

and Ms. Lu arrive in the morning. But, when the client appeared,

it was Ms. Zhang who escorted him back to massage room 3. Later,

after Ms. Harmon entered the lobby, Ms. Feng testified that

Ms. Zhang, not Ms. Lu, exited massage room 3. Ms. Zhang walked

across the hall to the bathroom , then went to meet Ms. Harmon in

the lobby. At that point, Ms. Feng saw M s. Lu emerge from the

kitchen and approach the front of the store. Ms. Zhang and

Ms. Lu met Ms. Harmon in the lobby. Ms. Harmon then sat down in

the lobby, wrote her report, and left the store. 4/

30. Ms. Feng declared that contents of the video estab lish

that Ms. Lu never went into massage room 3. Based on her review,

Ms. Feng opined that when Ms. Harmon saw Ms. Zhang advancing up

the hallway, she mistakenly determined that it was Ms. Lu coming

out of the massage room.

31 . Based on the competent sub stantial evidence provided at

the final hearing, the clear and convincing evidence in the record

establishes that BBK aided, assisted, or advised an unlicensed

person (Ms. Lu) to practice massage in violation of section

480.046(1)(f) and (p). Accordingly, the Department met its

burden of proving that BBK should subject to an administrative

sanction.

CONCLUSIONS OF LAW

3 2. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to section 120.569 and 120.57(1). See also

§ 480.046(4), Fla. Stat.

3 3 . The Department brings this disciplinary action to

sanction BBK for its actions on January 17, 2017. The Department

alleges that BBK allowed an unlicensed person to practice massage

in violat ion of sections 480.046(1)(f) and (p) .

34 . Persons desiring to practice massage in Florida must

obtain the appropriate professional license from the state. See

§§ 480.041 an d 480.033(4) and (8), Fla. Stat .

35 . Section 480.033 defines Ðmassage therapis tÑ as Ð a

person licensed as required by this act, who administers massage

for compensation.Ñ

36 . Section 480.033(3) defines ÐmassageÑ as :

[T] he manipulation of the soft tissues of the

human body with the hand, foot, arm, or

elbow, whether or not such ma nipulation is

aided by hydrotherapy, including colonic

irrigation, or thermal therapy; any

electrical or mechanical device; or the

application to the human body of a chemical

or herbal preparation.

37 . Section 480.046(1)(f) states the following acts are

g rounds f or disciplinary action:

[A ]iding, assisting, procuring, or advising

any unlicensed person to practice massage

contrary to the provisions of this chapter or

to a rule of the department or the board.

38 . Section 480.046(1)(p) states that disciplin ary action

may also be imposed for Ð[v]iolating any provision of this chapter

or chapter 456, or any rules adopted pursuant thereto.Ñ

3 9. The DepartmentÓs action to impose an administrative

sanction on BBK is penal in nature. Accordingly, the Department

bears the burden of proving the grounds for disciplinary action

by clear and convincing evidence. DepÓt of Banking & Fin., Div.

of Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932,

935 (Fla. 1996); see also Fla. DepÓt of Child. & Fams. v. Davi s

Fam. Day Care Home , 160 So. 3d 854, 856 (Fla. 2015).

4 0. Clear and convincing evidence is a heightened standard

that Ðrequires more proof than a Òpreponderance of the evidenceÓ

but less than Òbeyond and to the exclusion of a reasonable

doubt.ÓÑ Clear a nd convincing evidence is defined as an

intermediate burden of proof that:

[R]equires 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 confusion 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 establi shed.

S. Fla. Water Mgmt. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 - 73

(Fla. 2014)(quoting 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 prec lude evidence

that is ambiguous.Ñ Westinghouse Elec . Corp. v. Shuler Bros. ,

590 So. 2d 986, 988 (Fla. 1991).

4 1. Based on the competent substantial evidence in the

record, the Department proved, by clear and convincing evidence,

that BBK, on January 17, 2017, allowed Ms. Lu to practice massage

in its establishment. The testimony from the Department witness

(Ms. Harmon) was explicit, precise, and lacked in confusion.

Ms. Harmon remembered significant and substantial details

supporting her narrative. S he comprehensibly described her

activities upon entering BBK. Ms. Harmon credibly identified the

woman she observed by the massage room doorway (Ms. Lu).

Ms. HarmonÓs recollection of Ms. LuÓs conduct was definite and

unambiguous (emerging from the room with oil on her hands).

Ms. HarmonÓs believability is bolstered by the discrete facts she

relayed (the store layout ; the client covered by a sheet; no body

wrapping supplies). While testifying, Ms. Harmon was not

challenged or questioned in a manner tha t caused the undersigned

to doubt her veracity.

4 2. Although Ms. Harmon did not actually see Ms. Lu

physically touch the customer , Ms. Harmon gathered enough

information to support her conclusion that Ms. Lu was providing

ÐmassageÑ services to a BBK cli ent as defined in section 480.033.

Ms. Lu was walking out of a massage room. A client was lying in

the room on a massage table. The client was situated as if in the

middle of a massage ( covered in a sheet). Finally, Ms. LuÓs hands

were covered in oil w hich she would only have used to provide a

massage. Based on this testimony, the circumstantial evidence

Ms. Harmon relayed at the final hearing is sufficiently persuasive

to support her account of what transpired in that massage room. 5/

Accordingly, t h e clear and convincing evidence establishes that

when Ms. Harmon entered BBK on January 17, 2017, she interrupted

Ms. Lu in the act of massaging a client.

43 . Conversely, while BBK steadfastly denied that Ms. Lu

touched the client in any capacity, the t estimony from BBKÓs

witnesses did not create enough ÐhesitancyÑ to reasonably preclude

a finding that Ms. Lu practiced massage. The accounts from

Ms. Zhang and Ms. Feng did not cause the undersigned to doubt the

credibility or reliability of Ms. HarmonÓs description of the

activities she observed during her inspection.

44 . Consequently, the testimony and evidence presented at

the final hearing establishes, by clear and convincing evidence,

that BBK allowed Ms. Lu to practice massage therapy in its

esta blishment on January 17, 2017. Therefore, the Department met

its burden of pr oving that BBK violated section 480.046(1)(f)

and (p) in that it Ð[a]id[ed], assist[ed], procur[ed], or

advis[ed] any unlicensed person to practice massage contrary to

the provi sions of this chapter or to a rule of the department or

the board.Ñ

45 . Under section 480.046(2), the Florida Board of Massage

Therapy is authorized to impose Ðany of the penalties in

s. 456.072(2) against any . . . licensee who is found guilty of

viol ating any provision of [section 480.046(1)].Ñ

46 . Section 456.072(2) sets forth the following penalties:

(a) Refusal to certify, or to certify with

restrictions, an application for a license.

(b) Suspension or permanent revocation of a

license.

(c) Restriction of practice or license,

including, but not limited to, restricting

the licensee from practicing in certain

settings, restricting the licensee to work

only under designated conditions or in

certain settings, restricting the licensee

from performing or providing designated

clinical and administrative services,

restricting the licensee from practicing more

than a designated number of hours, or any

other restriction found to be necessary for

the protection of the public health, safety,

and welfare.

(d) Imposition of an administrative fine not

to exceed $10,000 for each count or separate

offense. If the violation is for fraud or

making a false or fraudulent representation,

the board, or the department if there is no

board, must impose a fine of $10 ,000 per

count or offense.

(e) Issuance of a reprimand or letter of

concern.

(f) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board, or the department

when there is no board, may specify. Those

condi tions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend continuing education

courses, submit to be reexamined, work under

the supervision of another licensee, or

satisfy any terms which are reasonably

tailored to the violations found.

(g) Corrective action.

(h) Imposition of an administrative fine in

accordance with s. 381.0261 for violations

regarding patient rights.

(i) Refund of fees billed and collected from

the patient or a third party on behalf of the

patient.

(j) Requireme nt that the practitioner

undergo remedial education.

47 . Regarding the specific penalty to impose, section

456.072(2) provides the following guidance:

In determining what action is appropriate,

the board, or department when there is no

board, must first consider what sanctions are

necessary to protect the public or to

compensate the patient. Only after those

sanctions have been imposed may the

disciplining authority consider and include

in the order requirements designed to

rehabilitate the practitioner .

48 . Further, pursuant to the rulemaking authority in

section 480.035(7), the Board of Massage Therapy has adopted

disciplinary guidelines in Fl orid a Admin istrative Code

Rule 64B7 - 30.002. Rule 64B7 - 30.002 provides:

( 1) When the Board finds that . . . [a]

licensee whom it regulates under Chapter 480,

F.S., has committed any of the acts set

forth in Sections . . . 480.046, . . . it

shall issue a final order imposing

appropriate penalties within the ranges

recommended in the following disciplinary

g uidelines after consideration of the

aggravating and mitigating factors set forth

in subsection (4), of this rule. Discipline

may include any of the following: letter of

concern, reprimand, license with conditions,

probation, suspension, revocation and/ or

fines.

Unde r r ule 64B7 - 30.002(3)(f), the Penalty Range for a first

violation of section 480.046(1)(f) is a $1,000 fine and

reprimand.

49 . Based on the facts in the record, the undersigned

concludes that the appropriate administrative sanction to impos e

on BBK is a $1,000 fine and reprimand. This penalty will

suitably meet the LegislatureÓs dual goals of protecting the

public health, safety, and welfare , as well as rehabilitating the

practitioner. 6/

RECOMMENDATION

Based on the foregoing Findings of Fac t and Conclusions of

Law, it is RECOMMENDED that the Department of Health enter a

final order : finding that BBK Florida, LLC, violated section

480.046(1)(f) and (p); and i mpos ing an administrative fine in the

amount of $1,000, as well as a reprimand .

DON E AND ENTERED this 13 th day of March , 2018 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, F lorida 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 13 th day of March , 2018 .

ENDNOTE S

1/ Unless otherwise stated, all statutory references are to the

201 6 codification of the Florida Statutes.

2 / At the final hearing, BBKÓs witnesses testified through the

use of an interpreter who translated between Mandarin Chinese and

English. The interpreter was duly sworn to truthfully interpret

the questions and an swers pursuant to section 90.606 , Florida

Statutes .

3 / The DepartmentÓs Motion to Strike BBKÓs Proposed Recommended

Order as untimely is denied. The Department correctly notes that

a document must be received by DOAH before 5:00 p.m. in order to

be file d as of that day. Any document received after 5:00 p.m.

is considered filed on the next business day. Fla. Admin. Code

R . 28 - 106.104(3). However, the undersigned determines that the

Department is not prejudiced or otherwise disadvantaged by BBKÓs

post - h earing submittal.

4 / The undersigned did not make any findings of fact based on

Ms. FengÓs testimony concerning the content of the surveillance

recording. BBK correctly argues that admission of Ms. FengÓs

testimony does not violate the Ðbest evidence r uleÑ under

section 90.952 , Florida Statutes . BBK presented an acceptable

exception recognized under section 90.954(1) for the non -

production of the original video recording, i.e. , the video was

destroyed when it was automatically recorded over after seve n

days. See , e.g. , T.D.W. v. State , 137 So. 3d 574 (Fla. 4th DCA

2014).

However, to be admissible in a chapter 120 hearing, evidence

must be Ðcommonly relied upon by reasonably prudent persons.Ñ

§ 120.569(2)(g), Fla. Stat. The undersigned determines t hat

Ms. FengÓs representation of what she claims she saw on the video

recording is simply not reliable enough to be admissible in this

proceeding. Not only is Ms. Feng inherently partial, but her

description conflicts, in part, with the testimony of an e ye

witness (Ms. Zhang). Consequently, Ms. FengÓs testimony

regarding the contents of the video failed to demonstrate

sufficient indicia of reliability upon which to reasonably base a

finding of fact.

5 / See , e.g. , T.M. v. Dep Ó t of Child. & Fams . , 971 So . 2d 274

(Fla. 4th DCA 2008)(s trong circumstantial evidence, even without

an eyewitness to the act, may support a finding of fact based on

clear and convincing evidence) .

6 / In addition to the penalty recommended in r ule 64B7 -

30.002(3)(f), t he Department seeks to revoke BBKÓs license as a

massage establishment. However, based on the evidence presented

at the final hearing, the facts do not establish that BBKÓs

misconduct on January 17, 2017, presents a Ðclear dangerÑ to the

public. The undersigned furth er concludes that the sanction

delineated in the Penalty Range is consistent with the factors

set forth in r ule 64 B7 - 30.002(4), in particular:

a. This incident was BBKÓs first offense. The Department

did not present evidence of any prior misconduct by B BK;

b. No evidence indicates that BBKÓs actions actually harmed

a member of the public;

c. This offense involved only one customer;

d. The unlicensed practice lasted for approximately

30 minutes. And, the massage the customer received was

completed by a licensed massage therapist;

e. During the inspection, BBK promptly complied with the

investigatorÓs requests for information. No evidence

suggests that BBK failed to cooperate with the investigator;

f. Upon the investigatorÓs request, BBK promp tly corrected

and stopped the unlicensed activity;

g. No evidence indicates that the unlicensed practice is

ongoing or continued beyond the morning of January 17, 2017.

h. Following the DepartmentÓs inspection, BBK terminated

any work relationship wi th the unlicensed individual. She

has not returned or worked for BBK since January 17, 2017;

i. No evidence shows that public faces any further danger

or risks from BBKÓs misconduct.

The Department also requests the undersigned recommend that

BBK be r equired to remunerate the Department its litigation

costs. Section 456.072(4) instructs that:

In addition to any other discipline imposed

through final order, or citation, entered on

or after July 1, 2001, . . . for a violation

of any practice act, the b oard, or the

department when there is no board, shall

assess costs related to the investigation and

prosecution of the case. The costs related

to the investigation and prosecution include,

but are not limited to, salaries and benefits

of personnel, costs related to the time spen t

by the attorney and other personnel working

on the case, and any other expenses incurred

by the department for the case. The board,

or the department when there is no board,

shall determine the amount of costs to be

assessed after its consideration of a n

affidavit of itemized costs and any written

objections thereto.

The Department did not present any argument or evidence regarding

its costs related to the investigation and prosecution of this

matter at the final hearing. Therefore, the undersigned mak es no

factual findings or recommendations regarding costs, except to

note that section 456.072(4) authorizes the Board of Massage

Therapy (or the Department) to impose litigation costs on BBK.

See also Fla. Admin. Code R. 64B7 - 30.002(8).

COPIES FURNISH ED:

Baya W. Harrison, Esquire

Burr & Forman LLP

Suite 800

200 South Orange Avenue

Orlando, Florida 32801

(eServed)

Lealand L. McCharen, Esquire

Department of Health

4052 Bald Cypress Way, Bin C 65

Tallahassee, Florida 32399 - 3265

(eServed)

Nichole C. G eary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Kama Monroe, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399 - 3 257

(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.