18-003638PL Department Of Health, Board Of Massage Therapy vs. Fengyan Liu, L.M.T. Status: Closed Recommended Order on Friday, November 16, 2018.

Summary: Petitioner established by clear and convincing evidence that massage therapist who offered to massage an undercover detective's genitalia engaged in sexual misconduct. Recommend revocation and $2,500 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF MASSAGE THERAPY,

Petitioner,

vs. Case No. 18 - 3638PL

FENGYAN LIU, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On Septe mber 28, 2018, a final hearing was held in

Jacksonville, Florida, before Yolonda Y. Green, a duly assigned

Administrative Law Judge of the Division of Administrative

Hearings (Division).

APPEARANCES

For Petitioner: Derrick Jovan McBurrows, Esquire

Amanda M. Godbey, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Richard A. Brown, Esquire

Estell Reginald, Jr., P.A.

301 North Liberty Street

Jacksonville, Florida 32202

STATEMENT 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 cha pter 480, Florida Statutes, as alleged in the

Administrative Complaint; and, if so, what is the appropriate

sanction.

PRELIMINARY STATEMENT

On May 2, 2018, the Department of Health (Petiti oner or

Department) filed a two - count Administrative Complaint

( Comp laint) against Respondent Fengyan Liu, L.M.T. (Respondent

or Ms. Liu), a licensed massage therapist. The C omplaint

alleged that Respondent engaged in sexual mis conduct in

violation of section 480.0485 and Florida Administrative Code

Rule 64B7 - 26.010(1) an d (3). On or about June 4, 2018,

Respondent disputed material facts alleged in the C omplaint and

requested an administrative hearing.

At hearing, the parties jointly offered six exhibits,

accepted as Exhibits J - 1 through J - 6. Petitioner s E xhibits

1 thro ugh 3, 5, 6 , and 10 (deposition of Katelin Reagh, L.M.T.)

were admitted into evidence . Petitioner also offered Exhibit 9,

pertaining to email communications between Ms. Liu and the

DepartmentÓs investigator , which were not admitted on the

ground s that the y were improper communications with a

represented party. Petitioner presented the testimony of

Detective N.E. of the Jacksonville SheriffÓs Office (JSO) and

Katelin Reagh, DepartmentÓs expert by deposition in lieu of live

testimony. Respondent offered no additional exhibits and did

not present any witnesses. Ms. Erchen Zheng, an official

Mandarin Chinese interpreter provided by the Division, was sworn

in to translate the proceeding for Respondent as she has limited

understanding of English. 1/

Stipulated facts from the Joint Pre - Hearing Stipulation

were accepted and are incorporated in the Findings of Fact

below, to the extent relevant.

During preliminary matters, the undersigned heard argument

from both parties regarding PetitionerÓs Motion in Limine, w hich

was denied.

The parties were allowed to submit propos ed recommended

orders within 10 days of the filing of the final hearing

transcript. The one - volume final hearing Official Transcript

was filed on October 22, 2018. Petitioner timely filed a

Prop osed Recommended Order, which has been considered in

preparat ion of this Recommended Order ( RO). Respondent did not

submit a post - hearing submittal. However, Respondent did

present a closing argument before conclusion of the final

hearing, which has also been considered in the preparation of

this RO.

Unless otherwise indicated, citations to the Florida

Statutes or rules of the Florida Administrative Code refer to

the versions in effect in 2016, the applicable statutory period

during which violations were allegedly committed.

FINDING S OF FACT

The following Findings of Fact are based on the testimony

presented at the final hearing, exhibits accepted into evidence,

and admitted facts set forth in the pre - hearing stipulation.

1. Petitioner is the State a g ency charged with regulating

the practice of massage therapy pursuant to s e ction 20.43,

Florida Statutes; c hap ter 456, Florida Statutes; and c hapter

480, Florida Statutes.

2. At all times material to the Complaint , Respondent was

licensed to practice mass age therapy in Florida since April 27,

2016, having been issued license number MA81902.

3. RespondentÓs address of r ecord is 3830 Williamsburg

Park Road, Jacksonville, Florida 32257. She also maintains an

address of 121 East Norwood Avenue, Apartment C, San Gabriel,

California 91776.

4. Respondent moved from her native country , China , to the

United States in 2012. RespondentÓs native language is Mandarin

Chinese and her ability to communicate in English is very

limited.

5. The JSO Vice Uni t is the law enforcement office which

investigates prostitution at massage therapy establishments in

Jacksonville.

6. Detective N.E. has been a civilian law enforcement

officer for approximately 13 years. He was w orking in the

JSO Vice U nit on June 29, 2017.

7. As a member of the vice unit, Detective N.E. ha s

conducted approximately 10 to 20 undercover prostitution

investigations of massage therapy establishments.

8. On or about June 29, 2017, JSO conducted an undercover

prostitution investigation at Luxury Massage located at

3830 Williamsburg Park Roa d, Suite 4, Jacksonville, Florida.

9. Detective N.E. entered Luxury Massage undercover,

posing as a client. Detective N.E. requested a 30 - minute

massage from Respondent, for which he paid Respondent $50.

R espondent escorted Detective N.E. to a massage room where

Detective N.E. completely disrobed and laid face down on the

massage table.

10. As Detective N.E. lay on his stomach, Respondent began

performing a massage on him. A towel was covering him a s he lay

on his stomach. Respondent massaged Detective N.E. Ós back, and

she later asked him to flip over onto his back, which he did.

11. While Detective N.E. was on his back, Respondent began

massaging his chest. At some point, Respondent pointed to

D etective N.E. Ós penis. Then Detective N.E. asked Respondent

Ðis $60 good?Ñ Respondent nodded her head indicating, Ðyes.Ñ

Detective N.E. contin ued to ask Respondent questions, for

example, whether Respondent would use oil and Respondent

verbally respon ded, Ðyes.Ñ When asked whether she had towels to

avoid making a mess, Respondent again verbally responded, Ðyes.Ñ

Although Respondent did not testify at hearing, RespondentÓs

verbal responses were recorded on a concealed recording device

as part of the i nvestigation.

12. At hearing, Detective N.E. testified that Respondent

grabbed his penis after she pointed to it. However, there was

no allegation that Respondent touched Detective N.E. Ós penis in

the police report, which was prepared following Respon dentÓs

arrest. On cross - examination , Detective N.E. explained that

RespondentÓs touching of his penis is not routinely included in

the police report. The undersigned finds it unusual that

touching of genitalia would be excluded from a police report

when conducting a prostitution investigation. Detective N.E. Ós

testimony on this point is not accepted.

13. Respondent denied that she engaged in any sexual

activity in her response to the Complaint.

14. Based on the totality of the circumstances , t he

und ersigned finds that Respondent offered to massage Detective

N.E. Ós penis for $60.00.

15. After the encounter, Detective N.E. gave a signal and

Respondent was arrested by other law enforcement officers who

came on the scene . Respondent was pos itiv ely identified by

Detective N.E. on the scene and at the final hearing.

16. Katelin Reagh is a licensed massage therapist and

based on her education, training, and experience , she is

accepted as an expert in massage therapy.

17. Ms. Reagh opined tha t offering to massage a patientÓs

genitalia is not within the scope of practice for massage

therapy.

18. As noted in the deposition testimony of Ms. Reagh,

there is no accepted practice within the scope of licensed

massage therapy that allows a therapis t to ever touch , or offer

to touch , the genitalia of a patient.

19. RespondentÓs actions on June 29, 2017 , were outside

the scope of generally accepted treatment of massage therapy

patients.

20. Respondent used the massage therapist - patient

relationshi p to attempt to engage Detective N.E. in sexual

activity when she offered to massage Detective N.E.Ós penis, by

pointing at the detectiveÓs penis and agreeing to accept $60

payment for the service.

21. There is no evidence that Respondent has had any pr ior

discipline imposed against her license.

CONCLUSIONS OF LAW

22. 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 Sta tutes (2018).

23. Petitioner has authority to investigate and file

administrative complaints charging violations of the laws

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

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

discipline upon a professional license is penal in nature.

State ex rel. Vining v. Fla. Real Estate CommÓn , 281 So. 2d 487,

491 (Fla. 1973). Petitioner must , therefore , prove the

allegations against Respondent by clear and convincing evidence.

Fox v. DepÓt of Hea lth , 994 So. 2d 416, 418 (Fla. 1st DCA

2008)(citing DepÓt of Banking & Fin. v. Osborne Stern & Co.,

Inc. , 670 So. 2d 932 (Fla. 1996)).

25. The clear and convincing standard of proof has been

described by the Florida Supreme Court:

Clear and convincing e vidence 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. Th e 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 Slomow itz

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

this standard of proof may be met where the evidence is in

c onflict, . . . 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).

26. Disciplinary statutes and rules Ðmust be construed

strictly, in favor of the one against whom the penalty would be

imposed.Ñ Gr iffis v. Fish & Wildlife Conser . CommÓn , 57 So. 3d

929, 931 (Fla. 1st DCA 20 11); Munch v. DepÓt of ProfÓl Reg.,

Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992).

27. A respondent may not be found guilty of an offense,

which has not been charged. See , e.g. , Trevisani v. DepÓt of

Health , 908 So. 2d 1108 (Fla. 1st D CA 2005)(administrative

complaint charged physician with a failure to create medical

records; proof of a failure to retain medical records cannot

support a finding of guilt).

28. The Complaint against Respondent charges her with two

counts.

29. In Co unt I of the Complaint , Respondent is charged

with engaging in sexual misconduct in the practice of massage

therapy by using the therapist - patient relationship to induce or

attempt to engage the patient in sexual activity in violation of

section 480.0485.

30. At all times relevant to this matter, section 480.0485

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 relations hip 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 practice or

the scope of generally accepted examinat ion

or treatment of the patient. Sexual

misconduct in the practice of massage

therapy is prohibited.

31. The Department presented clear and convincing evidence

that Detective N.E. had a massage therapist - patient relationship

with Respondent by demonstr ating that he received a paid massage

from Respondent at Luxury Massage.

32. RespondentÓs use of the massage therapist - patient

relationship to attempt to engage Detective N.E. in sexual

activity was outside the scope of practice of massage therapy.

33. 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.

34. Count II of the Complaint charges Respondent with

making arrangements to engage in sexual activity in violation

of rule 64B7 - 26.010.

35. Ru le 64B7 - 26.010 p rovides, in pertinent part :

(1) Sexual activity by any person or

persons in any massage establishment is

absolutely prohibited.

* * *

(3) No licensed massage therapist shall

u se the therapist - client relationship to

engage in sexual activity with any client

or to make arrangements to engage in sexual

activity with any client.

36. The Department also proved by clear and convincing

evidence that Respondent used the therapist - pa tient relationship

to make arrangements to engage in sexual activity in violation

of rule 64B7 - 26.010.

37. The Board of Massage Therapy (Board) imposes penalties

upon licensees in accordance with the disciplinary guidelines

prescribed in r ule 64B7 - 30.002 . See Parrot Heads, Inc. v. DepÓt

of Bus. and ProfÓl Reg. , 741 So. 2d 1231 (Fla. 5th DCA 1999).

38. 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 M ed. , 563 So. 2d 805,

806 (Fla. 1st DCA 1990), re v. denied, 576 So. 2d 295

(Fla. 1991).

39. Section 456.079 requires the Board to adopt

disciplinary guidelines for specific offenses by rule.

Penalties imposed must be consistent with those disciplinary

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

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

40. The Board adopted r ule 64B7 - 30.002(3). At the time of

the alleged offense in June 2017, the rule provided that the

penalty for a violatio n of section 480.0485 , as well as rule

64B7 - 26.010 , should be a fine of $2,500.00 and license

revocation.

41. Rule 64B7 - 30.002(4) sets forth aggravating and

mitigating circumstances , which the Board may consider to

deviate from the penalty guidelines:

( a) Danger to the public;

(b) 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 penalty

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 violat ion;

(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; and

(n) Any other mitigating or aggravating

circumstances.

42. Respondent has never been discip lined by the Board and

has no relat ed violations in other states and there was little

actual damage from the violation in this case. However ,

Respondent had full knowledge of the violation involving sexual

misconduct , and there was no evidence of rehabili tation.

Considered as a whole, the circumstances do not warrant

deviation from the guideline penalty.

43. Since the penalty that will be recommended herein is

within the disciplinary guidelines, it is unnecessary to make

any findings related to the aggr avating or mitigating factors

set out in rule 64B7 - 30.002(3).

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

provided that in addition to any other discipline imposed for

violation of a practice act, the Board shall assess costs

related to the inves tigation and prosecution of the case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Department of Health,

Board of Massage Therapy, enter a final order finding the

following:

(a) Ms. Fen gyan Liu, L.M.T. in violation of section

480.0485 and rule 64B7 - 26.010;

(b) Revoking her license to practice massage therapy;

(c) Imposing a fine of $2,500; and

(d) Assessing costs in an amount to be determined by the

Board.

DO NE AND ENTERED this 16th day of November , 2018 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 16th day of November , 2018 .

ENDNOTE

1/ Generally, the agency charged with preserving all testimony

in the proceeding should provide an interpreter, if necessary.

However, the Division provided the interpreter in this matter

because the Department opposed providing an interpreter for the

proceeding. See §§ 90.606 and 120.57(1)(g), Fla. Stat.;

Fla. Admin. Code R. 28 - 106.214.

COPIES FURNISHED:

Richard A. Brown, Esquire

Estell Reginald, Jr., P.A.

301 North Liberty Street

Jacksonville, Florida 32202

Derrick Jovan McBurrows, Esquire

Amanda M. Godbey, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Flor ida 32399

(eServed)

Kama Monroe, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way , Bin C - 06

Tallahassee, Florida 32399

(eServed)

Louise Wilhite - St Laurent

Interim General Counsel

Department of Health

4052 Bald Cyp ress Way, Bin C65

Tallahassee, Florida 32399

(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 sh ould be filed with the agency that

will issue the Final Order in this case.