18-002662PL Department Of Health, Board Of Massage Therapy vs. Yanling Wang Status: Closed Recommended Order on Wednesday, October 24, 2018.

Summary: Sexual misconduct by a licensed massage therapist warranted revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 18 - 2662PL

YANLING WANG,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 13, 2018, 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: Gerald C. Henley, Es quire

Kimberly L . Marshall, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Hongwei Sh ang, Esquire

The Law Office of Hongwei Shang, LLC

7350 Southwest 89th Street, Suite 100

Miami, Florida 33156

STATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent engaged

in sexual m isconduct 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 S TATEMENT

On March 14, 2018, the Department of Health (Petitioner or

Department) issued an Administrative Complaint against

Ms. Yanling Wang (Respondent or Ms. Wang), a licensed massage

therapist. The complaint charged Respondent with sexual

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

Respondent disputed material facts alleged in the complaint and

requested an administrative hearing.

At hearing, the parties jointly offered six exhibits,

accepted as Exhibits J - 1 through J - 6. Petitioner offered no

additional exhibits, but presented the testimony of Detective

David Gariepy of the Coral Springs Police Department. Respondent

offered five additional exhibits : Exhibits R - 7 through R - 9,

pertaining to dismissed criminal charges against Respon dent that

were not admitted on the ground that they were irrelevant ; and

Exhibits R - 10 and R - 11, that were admitted without objection.

Respondent testified herself through a sworn interpreter,

Mr. Hailin Huang. Stipulated facts from the Joint Pre - hearing

Stipulation were accepted and are included among the Findings of

Fact below.

The one - volume final hearing Transcript was filed on

October 1, 2018. Both parties filed proposed recommended orders

that were considered in preparation of this Recommended Orde r.

Except as otherwise indicated, citations to the Florida

Statutes or rules of the Florida Administrative Code refer to the

versions in effect in May 2016, the time during which the

violations were allegedly committed.

FINDING S OF FACT

1. The Department, Board of Massage Therapy (Board) , is the

state agency charged with regulating the practice of massage

therapy in the S tate of Florida, pursuant to section 20.43 and

chapters 456 and 480, Florida Statutes.

2. At all times material to the complaint, Ms. Wa ng was a

licensed massage therapist within the S tate of Florida, having

been issued license number MA 80935 on or about December 31,

2015.

3. Ms. Wang ' s address of record is 9844 Sandalfoot

Boulevard, Boca Raton, Florida 33428.

4. Ms. Wang began workin g as a massage therapist at

Wellness Spring Center (Wellness) 7865 West Sample Road in Coral

Springs, Florida, on May 2, 2016.

5. On or about May 26, 2016, the Coral Springs Police

Department (CSPD) conducted a prostitution investigation at

Wellness .

6. Detective Gariepy, a detective in the vice,

intelligence, and narcotics unit of the CSPD, working undercover,

requested a one - hour full body massage and was advised it would

cost $60.00. Detective Gariepy paid the $60.00 in official

investigative funds , a nd he was escorted to a private room.

7. Detective Gariepy got undressed and lay face down on a

massage table.

8. Ms. Wang provided Detective Gariepy with a massage.

9. Ms. Wang began working on Detective Gariepy ' s back side,

and later asked him to f lip over onto his back, which he did.

She then massaged the front side of his body. She put her hand

on his testicles and then on his penis, and began stroking it in

a sexual manner. After only a few seconds, Detective Gariepy

stopped her, saying he was a married man.

10. Detective Gariepy testified on cross - examination that

Ms. Wang never asked him for any money when she was touching him.

11. Detective Gariepy got dressed and left the massage

establishment.

12. CSPD officers entered the massage est ablishment and

made contact with Ms. Wang, who was then positively identified by

Detective Gariepy as the therapist who massaged him.

13. It was stipulated by the parties prior to hearing that

Ms. Wang provided Detective Gariepy with a massage. Ms. Wang ' s

contrary testimony at hearing, to the effect that the person to

whom she gave a massage that day was not Detective Gariepy was

not credible and is rejected. Her testimony that she did not

inappropriately touch Detective Gariepy ' s testicles and penis,

w as not credible and is rejected.

14. While Detective Gariepy admitted he was unable to pick

out a photograph of Ms. Wang a little over two years later in a

deposition, he explained that as he was receiving the massage , he

focused on exactly what Ms. Wan g was wearing and concentrated on

her physical features so that he could positively identify her to

the arresting officers. The parties stipulated prior to hearing

that Ms. Wang was positively identified by Detective Gariepy as

the therapist who had massa ged him. His testimony was credible.

15. On May 26, 2016, Ms. Wang used the massage therapist -

patient relationship to attempt to engage Detective Gariepy in

sexual activity. Ms. Wang engaged in sexual misconduct in the

practice of massage therapy.

16. Ms. Wang has never had any prior discipline imposed

against her license.

CONCLUSIONS OF LAW

17. 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,

a nd 120.57(1), Florida Statutes (2018).

18. Petitioner has authority to investigate and file

administrative complaints involving violations of the laws

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

19. 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)).

20. The clear and convincing standard of proof has been

described by the Florida Supreme Court:

Clear and convincing evide nce 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 the facts

in issue. The ev idence 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

allegat ions 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)).

21. Disciplinary 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.Ñ

Griffis v. Fish & Wildl ife 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

22. Respondent is charged with engaging in sexual

misconduct in the practice of massage, in viola tion of section

480.0485, which at the relevant time provided:

The massage therapist - patient relationship is

founded on mutual trust. Sexual misconduct

in the practice of massage therapy means

violation of the massage therapist - patient

relationship throu gh 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

practice or the scope of generally accepted

examination or tr eatment of the patient.

Sexual misconduct in the practice of massage

therapy is prohibited.

23. Respondent used the massage therapist - patient

relationship to attempt to engage an undercover detective in

sexual activity outside of the scope of practice o f massage

therapy.

24. 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

25. Respondent is also charged with violation of

section 456.072(1)(v) for the incident occurring on May 26, 2016.

At that time, the statute provided that disciplinary action may

be taken against a licensee for engaging or attempting to engage

in sexual misconduct as defined and prohibited in section

456.063(1 ), which stated:

(1) Sexual misconduct in the practice 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 representative 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

professio n. Sexual misconduct in the

practice of a health care profession is

prohibited.

26. Respondent used the massage therapist - patient

relationship to attempt to engage an undercover detective in

physical sexual activity outside the scope of the professional

practice of massage therapy.

27. 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 456.072(1)(v).

28. Section 480.046(1)(p) provides tha t disciplinary action

may be imposed for violation of any provision of chapter 456 or

chapter 480.

Penalty

29. Penalties in a licensure discipline case may not exceed

those in effect at the time a violation was 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).

30. Section 456.079 requires the Board to adopt

disciplinary guidelines for specific offenses by rule. Penalties

imposed must be consistent with those discip linary guidelines.

See Parrot Heads, Inc. v. Dep ' t of Bus. & Prof ' l Reg. , 741 So. 2d

1231, 1233 - 34 (Fla. 5th DCA 1999).

31. The Board adopted Florida Administrative Code

Rule 64B7 - 30.002(3)(o)2. In May 2016, it provided that the

discipline for a violati on of the sexual misconduct prohibition

in section 480.0485 should be a fine of $2,500.00 and revocation

of the license.

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

discipline for a violation of section 456.072(1)(v) should be a

fine of $2,500. 00 and revocation of the license.

33. Rule 64B7 - 30.002(4) set forth possible aggravating and

mitigating circumstances in light of which the Board 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, caused by the violation;

(f) The deterrent effect of the pen alty

imposed;

(g) The effect of the penalty upon the

licensee ' s 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

violatio n 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 vi olation;

(m) Penalties imposed for related offenses

under subsections (1) and (2), above;

(n) Any other mitigating or aggravating

circumstances.

34. Respondent has never before been disciplined by the

Board and has no related violations in other stat es; there was

little actual damage from the violation in this case; and

imposition of the penalty guideline would have a severe effect on

the licensee ' s livelihood. On the other hand, there was no

evidence of rehabilitation, and Respondent had full knowle dge of

the violation, which involved her voluntary personal conduct.

While sexual conduct in the practice of massage inherently

constitutes a recognized danger to the public, that fact is

already taken into account in the penalty guidelines for this

offen se 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 penalty.

35. At the time of the violation, section 456.072(4)

provided that in additi on to any other discipline imposed for

violation of a practice act, the B oard 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 tha t the Florida Department of Health,

Board of Massage Therapy, enter a final order finding

Ms. Yangling Wang in violation of sections 480.0485 and

456.072(1)(v), Florida Statutes, constituting grounds for

discipline under section 480.046(1)(p) , Florida Stat utes;

imposing a fine of $2,500.00; revoking her license to practice

massage therapy; and imposing costs of investigation and

prosecution.

DONE AND ENTERED this 24th day of October , 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

Divisio n of Administrative Hearings

this 24th day of October , 2018 .

COPIES FURNISHED:

Gerald C. Henley, Esquire

Kimberly L . Marshall, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Hongwei Shang, Esquire

The Law Office of Hongwei Shang, LLC

7350 Southwest 89th Street , Suite 100

Miami, Florida 33156

(eServed)

Louise Wilhite - St Laurent,

Interim General Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Flori da 32399

(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 writ ten 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.