18-000898PL Department Of Health, Board Of Massage Therapy vs. Shufang Li, L.M.T. Status: Closed Recommended Order on Friday, May 18, 2018.

Summary: Respondent's use of the massage therapist-patient relationship to attempt to engage in sexual activity warranted fine of $2,500 and revocation of license.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 1 8 - 0898 PL

SHUFANG LI , L.M.T.,

Respondent.

_______________________________/

RECOMMEND ED ORDER

On A pril 16 , 20 1 8 , a final hearing was held by video

teleconference at locations in Miami and Tallahassee, Florida,

before F. Scott Boyd, an Administrative Law Judge assigned by the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lealand L. McCharen , Esquire

Gerald C. Hen ley , II, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, F lorida 32399 - 3265

For Respondent: Gennaro Cariglio, Jr., Esquire

Law Office of Gennaro Cariglio, Jr.

Penthouse 70 1

8101 Biscayne Boulevard

Miami , F lorida 33 1 3 8

ST ATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent engaged

in sexual misconduct in the practice of massage therapy in

violation of section 480 .0485 , Florida Statutes , or in the

practice of a health profession, in violation of section

456.072(1)(v), Florida Statutes; and , if so, what is the

appropriate sanction.

PRELIMINARY STATEMENT

On December 21 , 201 7 , the Department of Health (Petitioner

or Department) issued a n Administrative Complaint against

Ms. Shufang Li (Respondent or Ms. Li) , a licensed massage

t herapist . The complaint charged Respondent with s exual

misconduct in violation of section s 480.0485 and 456.072(1)(v) .

Respondent disputed material facts alleged in the complaint and

requested an administrative hearing.

A t hearing, Petitioner offered the testimony of Detective

Avidon of the Palm Beach County Sheriff ' s Office . Exhibit P - 1 ,

consisting of portions of an investigative report, was admitted

into evidence , with the caveat that it was hearsay and could

only be used to supplement or explain competent evidence and

could not support a finding of fact in itself. Respondent

testified on her own b e half and offered no exhibits. M r. Hailin

Huang , provided by the State of Florida, was sworn as an

official Mandarin interpreter to translate the proceedings.

The one - volume final hearing T ranscript was filed on May 2,

2018 . Both parties filed proposed recommended order s that were

considered in preparation of this Recommended Order.

Except as otherwise indicated, citation s to the Florida

Statute s or rules of the Florida Administrative Code refer to

the version s in effect in November 201 6 , the time during which

the violation s w ere allegedly committed .

FINDINGS OF FACT

1. The Department, Board of Massage Therapy, is the state

agency charged with regulating the practice of massage therapy in

th e s tate of Florida, pursuant to section 20 .43 and chapters 456

and 480 , Fl orida Statutes .

2. At all times material to this proceeding, Ms. Li was a

licensed massage therapi st in the s tate of Florida, holding

license number MA 82765 .

3. Ms. Li ' s current address of record is 620 East Colonial

Drive, Orlando, Florida 32803. Ms. Li ' s native language is

Mandarin Chinese. She came to the United States from China in

2014 , and her ability to communicate in English is limited.

4 . On November 16, 2016 , Ms. Li was employed by Empire Day

Spa (Empire) , located in Lake Worth, Florida.

5 . On that day, Detective A vidon, as part of the City of

Lake Worth Community Policing Street Crimes Unit, was

participating in a n ongoing investigation into possible

prostitution . He entered Empire in an undercover capacity and

was greeted by Ms. Li. D etective Avidon asked her how much it

would be for a one - hour massage . Ms. Li advised him it cost $70.

6 . Detective Avidon asked Ms. Li if s he would give him a

" full service " massage, which , from his experience in

investigating vice , he understood to be a phrase commonly used to

refer to the performance of sexual acts during or after a

massage.

7 . As he testified, Ms. Li took Detective Avidon into an

enclosed hallway to the left of the counter, where she told him

he would have to pay extra money. Ms. Li then led him to a

massage room.

8 . Later in the massage room, Detective Avidon asked her ,

" how much? " Ms. Li came over to him, rubb ed his upper thigh just

below the genital area , gestur ed as if she were performing

masturbation, and ask ed him , " you want? "

9. As he testified, D etective Avidon , using a slang term

for oral sex, then asked Ms. Li, " H ow much for a blow job? "

Ms. Li answered, " You tell me . " Detective Avidon then asked,

" Sixty? " Ms. Li responded, " One hundred. " Detective Avidon

confirmed, " One hundred dollars ? " Ms. Li said, " Yes. "

10 . Detective Avidon told Ms. Li he needed to put his phone

and wallet in his car and exited Empire. Detectives already on

scene then entered Empire along with Detective Avidon . Ms. Li

was positively identified by Detective Avidon , and she was placed

into custody. Ms. Li was later formally identified using the

Florida Driver ' s license in her possession .

11 . Detective Avidon shortly thereafter completed the

proba b le cause affidavit , which later was introduced into

evidence to supplement and explain his live testimony at hearing.

12 . Ms. Li ' s contrary testimony, to the effect that while

she was in the massage room with Detective Avidon, she did not

agree to engage in sexual activity , was not credible and is

rejected. While it is accepted that Ms. Li ' s ability to

communicate in English is limited , the credible testimony of

Detective Avidon as to all the circumstances surrounding their

communications makes it very clear that Ms. Li completely

understood that she was agreeing to engage in sexual activity in

exchange for payment.

13 . Ms. Li ' s actions on November 16, 2016, were outside the

scope of practice of massage therapy.

14 . Ms. Li used the massage therapist - patient relationship

to attempt to engage Detective Avidon in sexual activity . Ms. Li

engaged in sexual misconduct in the practice of massage therapy.

15 . Ms. Li has never had any prior discipline imposed

against h er license.

C ONCLUSIONS OF LAW

16 . 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 (201 7 ) .

17 . Petitioner has authority to investigate and file

administrative complaints involving violations of the laws

governing licensed massage therapists. § 456.073, Fla. Stat.

18 . A proceeding to suspend, revoke, or impose other

discipline upon a 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 convincing 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) ) .

1 9 . 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 confusion as to t he 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 398, 404 (Fla. 1994)(quoting Slomowitz v.

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

20 . 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 by construction. "

Griffis v. Fish & Wildlife Conser. 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).

Count I

21 . Responden t is charged with engaging in sexual

misconduct in the practice of massage, in violation of section

480.0485 , which at the relevant time provide d :

The massage therapist - patient relationship is

founded on mutual trust. Sexual misconduct

in the practice of massage therapy means

violat ion 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 patient,

in sexual activity outside the scope of

practi ce or the scope of generally accepted

examination or treatment of the pat ient.

Sexual misconduct in the practice of massage

therapy is prohibited.

22 . Respondent us ed the massage therapist - patient

relationship to attempt to engage Detective Avidon in s exual

activity outside of the scope of practice of massage therapy.

23 . Petitioner proved by clear and convincing evidence that

Respondent engaged in sexual misconduct in the practice of

massage therapy, in violation of section 480.0485 .

Count II

24 . Respondent is also charged with violation of

section 456.072(1)(v) for the incident occurring on November 16,

2016. At that time , the statute state d that disciplinary action

may be taken against a licensee for e ngag ing or attempt ing to

engage in sexual misconduct as defined and prohibited in

s ection 456.063 (1) , which provide d :

(1) Sexual misconduct in the practi ce of a

health care profession means violation of

the professional relationship through which

the health care practitioner uses such

relationship to engage or attempt to engage

the patient or client, or an immediate

family member, guardian, or representati ve

of the patient or client in, or to induce or

attempt to induce such person to engage in,

verbal or physical sexual activity outside

the scope of the professional practice of

such health care profession. Sexual

misconduct in the practice of a health car e

profession is prohibited.

25 . Respondent used the massage therapist - patient

relationship to attempt to engage Detective Avidon in physical

sexual activity outside the scope of the professional practice of

massage therapy .

26 . Petitioner proved by clear and convincing evidence that

Respondent engaged in sexual misconduct in the practice of a

health care profession , in violation of section 4 56.072 (1)(v).

27 . Section 480.046(1)(p) provides that disciplinary action

may be impos ed for violat ion of any provision of chapter s 4 56

or 480 .

Penalty

28 . 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 Reg., Bd. of Med . , 563 So. 2d 805, 806 (Fla.

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

2 9 . Section 456.079 requires the Board of Massage Therapy

to adopt disciplinary guidelines for specific offenses by rule .

Penalties imposed must be consistent with those disciplinary

guidelines. See Parrot Heads, Inc. v. Dep ' t of Bus. & Prof ' l

Reg. , 741 So. 2d 1231, 1233 - 34 (Fla. 5th DCA 1999).

30 . The Board of Massage Therapy adopted Florida

Administrative Code Rule 64B7 - 30.002(3)(o)2. I n November 201 6 ,

it p rovide d that the discipline for a violation of the sexual

misconduct prohibition in section 480.0485 should be a fine of

$2,500 and revocation of the license .

31 . Rule 64B7 - 30.002(3)( x ) similarly provided that the

discipline for a violation of section 4 56 .0 72(1)(v) should be a

fine of $2,500 and revocation of the license.

32 . R ule 64B7 - 30.002( 4 ) set forth possible aggravating and

mitigating circumstances in light of which the Board of Massage

Therapy might deviate from the penalty guidelines:

(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, caus ed 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 violatio n;

(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, 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

circumstances.

33 . Respondent has never before been disciplined by the

Board of Massage Therapy and has no related violations in other

states ; there was little actual damage from the violation in this

case ; and imposition of the penalty guideline will have a severe

effect on the licensee ' s livelihood . On t he other hand, there

was no evidence of rehabilitation , and Respondent had full

knowledge of the violation , which invol v ed her voluntary personal

conduct . While sexual conduct in the practice of massage

inherently constitutes a recognized danger to the pu blic , that

fact is already taken into account in the penalty guidelines for

this offense and is not a separate aggravating factor in the

specific context of this case. Considered as a whole , the

circumstances do not warrant deviation from the guideline

pe nalty.

34 . At the time of the violation, s ection 456.072( 4)

provide d that in addition to any other discipline imposed for

violation of a practice act, the Board of Massage Therapy 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 fin ding Ms. Shufang Li

in violation of section s 480.0485 and 456.072(1)(v) , Florida

Statutes, constituting grounds for discipline under section

480.046(1)(p); imposing a fine of $2,500 ; revoking h er license to

practice massage therapy ; and imposing costs of investigation and

prosecution.

DONE AND ENTERED this 18th day of May , 2018 , 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 18th day of May , 2018 .

COPIES FURNISHED :

Gennaro Cariglio, Jr., Esquire

Law Office of Gennaro Cariglio, Jr.

Penthouse 701

8101 Biscayne Boulevard

Miami, Florida 33138

(eServed)

Lealand L. McCharen, Esquire

Gerald C. Henley, II, Esquire

Department of Health

4052 Bald 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 exceptions

to this Recommended Ord er should be filed with the agency that

will issue the Final Order in this case.