17-006176PL Department Of Health, Board Of Massage Therapy vs. David Crawford, L.M.T. Status: Closed Recommended Order on Tuesday, January 23, 2018.

Summary: DOH proved that Respondent, a licensed massage therapist, violated the practice act by unwanted sexual misconduct with a client. RO: revoke and fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 17 - 6176PL

DAVID CRAWFORD, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On Dec ember 22 , 2 017, Administrative Law Judge (ALJ)

J. Lawrence Johnston of the Division of Administrative Hearings

(DOAH) conducted a disputed - fact hearing in this case by video

teleconference at sites in Tampa and Tallahassee .

APPEARANCES

For Petitioner: Kri sten M. Summers, Esquire

Mary A. Iglehart, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

For Responde nt: N o appearance

STATEMENT OF THE ISSUE S

Whether the Respondent, a licensed massage therapist , should

be disciplined under section 480.046(1)(p) , Florida Statutes

(2016), 1/ for sexual misconduct in the practice of massage

therapy; and, if so, the approp riate discipline .

PRELIMINARY STATEMENT

On November 8, 2017 , the Petitioner filed a n Amended

Administrative Complaint against the Respondent. The Respondent

disput ed the charges and request ed a hearing . The Petitioner

forwarded the case to DOAH, and the hearing was scheduled for

December 22.

The Respondent did not appear at the final hearing . The

Petitioner called the complaining witness to testify. The

PetitionerÓs Exhibits 2 and 4 were received in evidence.

Reservations expressed during the hearing r egarding the

PetitionerÓs Exhibit 3 have been resolved in favor of

admissibility, and it is received in evidence as well. The

Transcript of the hearing was filed on January 8, 2018. Neither

party filed a proposed recommended order within ten days of the

filing of the Transcript.

FINDING S OF FACT

1. The Petitioner licenses and regulates the practice of

massage therapy in Florida, including discipline of licensees who

are in violation of the governing statutes and rules. The

Respondent holds massage thera py license MA 80154.

2. In March 2017, the Respondent was employed as a massage

therapist at Hand and Stone Massage and Facial Spa in Brandon,

Florida.

3. On March 29, 2017, Y.B., went to Hand and Stone to use a

gift card for a free massage that had been given to him by his

fiancée. The Respondent approached and introduced himself to

Y.B., and asked if he could help him. Y.B. told him why he was

there, and the Respondent led him back to a therapy room.

4. In the therapy room, Y.B. asked the Respo ndent to focus

on his upper body, arms, and fingers. The Respondent had him

undress and lay down on the massage table face down, covered only

by a sheet. The massage proceeded without incident at first.

Then, the Respondent asked for permission to massa ge Y.B.Ós legs.

Y.B. granted permission. As the massage proceeded, Y.B. closed

his eyes and relaxed. When the Respondent finished massaging the

back of Y.B.Ós legs, he asked Y.B. to roll over onto his back.

As the massage proceeded, Y.B. again closed h is eyes and relaxed.

After massaging Y.B.Ós upper body, arms, and fingers, the

Respondent asked, ÐMay I?Ñ Thinking the Respondent was asking if

he had permission to massage the front of his legs, Y.B. said,

Ðyes, do what you have to do.Ñ Before Y.B. kne w what was

happening, the Respondent grasped Y.B.Ós penis in his hand and

put it in his mouth. Startled and shocked, Y.B. opened his eyes,

sat up, and made the Respondent stop, saying ÐWhoa, whoa, whoa,

what do you think youÓre doing? IÓm not gay.Ñ At t hat point,

the Respondent stopped and brought Y.B. water and a towel.

5. What the Respondent did was very upsetting to Y.B. He

was so upset and angry that he was distracted while being checked

out by another employee of Hand and Stone. He unwittingly

presented his gift card and answered questions. He discovered

later that he not only had paid for the massage but also had

given the Respondent a tip.

6. Y.B. continued to be bothered by what happened and

returned to Hand and Stone the next day to conf ront the

Respondent and have him explain the reason for what he had done

the day before. During this confrontation, the Respondent

admitted to his misconduct and tried to apologize, saying ÐI

thought we had a connection.Ñ

7. Y.B. continues to be affect ed by what the Respondent did

to him. He received counseling through his employer. He still

is less affectionate than he used to be, even towards his family.

To this day, he still becomes anxious when reminded of the

incident.

CONCLUSIONS OF LAW

8 . Bec ause the Petitioner seeks to impose license

discipline, it has the burden to prove the 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 evidence must be

credible; the memories of the witnesses must be clear and without

confusion; and the sum total of the evidence must be of

sufficient weight to convince the tri er 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 Westingho use Elec. Corp. v. Shuler Bros ., Inc. ,

590 So. 2d 986, 988 (Fla. 1st DCA 1991).

9 . Disciplinary statutes and rules Ðmust be construed

strictly, in favor 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. Crim. Just. Stds. & Training CommÓn , 458 So. 2d 887,

8 88 (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 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)).

10 . The grounds proven in support of the PetitionerÓs

assertio n that the RespondentÓs license should be disciplined

mu st be those specificall y alleged in the Amended 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

129 (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

instruments, 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).

11. The violations charged in th e Amended Administrative

Complaint were proven by clear and convincing evidence. The

Respondent engaged in prohibited sexual misconduct, as defined in

section 480.0485. He also violated Florida Administrative Code

Rule 64B7 - 26.010, 2/ which prohibits the use of the therapist -

client relationship to engage in sexual activity with a client

(defined as direct or indirect physical contact intended or

likely to erotically stimulate either person). The Respondent

also is subject to discipline under section 480.0 46(1)(p) for

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

or any rule adopted to implement those statutes.

12. At the time of the alleged offense in March 2017 ,

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

sectio n 480.0485 wa s a $2,500 fine and license revocation .

13. At the time of the alleged offense in March 2017 ,

rule 64B7 - 30.002(4) provides that, in applying the penalty

guidelines, the aggravating and mitigating circumstances can be

taken into account and can allow the Board of Massage Therapy to

deviate from the penalty guidelines. Consideration of those

factors does not warrant a deviation from the penalty guidelines.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is R ECOMMENDED that the Board of Massage Therapy enter a

final order finding the Respondent guilty as charged; revoking

his license; and fining him $2,500.

DONE AND ENTERED this 2 3rd day of January , 2018 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 2 3rd day of January , 2018 .

ENDNOTE S

1/ Unless otherwise indicated, the Florida Statutes cited refer

to the 2016 codification, which contains the statutes that were

in effect in March of 2017, when the alleged violations occurred .

2 / All rule citations are to the rules that were in effect in

March of 2017, when the alleged violations occurred.

COPIES FURNISHED:

David Crawford

610 Green Cove Drive

Brandon, Florida 33511

Kristen M. Summers, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Mary A. Iglehart, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eSe rved)

Kama Monroe, Executive Director

Board of Massage Therapy

Department of Heath

4052 Bald Cypress Way , Bin C - 06

Tallahassee, Florida 32399 - 3257

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahas see, Florida 32399 - 1701

(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 a gency that

will issue the Final Order in this case.