18-004513PL Department Of Health, Board Of Massage Therapy vs. Michael T. Coroneos, L.M.T. Status: Closed Recommended Order on Friday, April 5, 2019.

Summary: Petitioner presented clear and convincing evidence that Respondent engaged in sexual misconduct in the practice of massage therapy. Recommend $2,500.00 fine and revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 18 - 4513PL

MICHAEL T. CORONEOS, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On December 18 and 19, 2018, Yolonda Y. Green, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings (ÐDivisionÑ) conducted a duly - noticed

final hearing in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Ross Daniel Vi ckers, Esquire

Gerald C. Henley, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

For Respondent: Lance O. Leider, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

STATEMENT OF THE ISSUE S

The issues presented in this case are whether Respondent

has violated the provisions of c hapters 456 and 480, Florida

Statutes, as alleged in the Administrative Complaint; and , if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 21, 2017, the Department of Health

(ÐPetitionerÑ or ÐDepartmentÑ) filed a one - count Administrative

Complaint a gainst Respondent, Michael Coroneos (ÐRespondentÑ or

ÐMr. CoroneosÑ), alleging he violated section s 480.046(1)(p) and

480.0485, and Florida Admin istrative Code Rule 64B7 - 26.010 , by

engaging in sexual misconduct in the practice of massage

therapy. Responde nt timely disputed the allegations in the

Administrative Complaint and requested a final hearing. On

August 28, 2018, this matter was referred to the Division for

assignment of an administrative law j udge.

The undersigned issued a n otice scheduling this m atter for

hearing on November 6 and 7, 2018. On October 15, 2018, the

parties filed a Joint Motion to Continue Final Hearing, which

was granted. The hearing was rescheduled for December 18

and 19, 2018.

The hearing convened as scheduled and continued unt il

conclusion. At hearing , Petitioner presented the testimony of

five witnesses: Patient s S.W. and C.W. ; 1 / Elizabeth Branson, a

licensed massage thera pist (ÐLMTÑ) at Daytona College; Khaliff

Ali, M.D., director of e ducation at Daytona College ; and

Christ opher Brooks, LMT, program d irector for therapeutic

massage. Respondent testifi ed on his own behalf and presented

the testimony of his wife, Maria Coroneos . The parties Ó Joint

Exhibits 5 through 7 were admitted. PetitionerÓs Exhibits 2 , 3

(over objectio n), and 4 were admitted into evidence.

RespondentÓ s Exhibits 1 through 3 (over objection) were admitted

into evidence.

The hearing Transcript was fil ed with the Division on

January 17, 2019 . At the conclusion of the hearing, the parties

requested 3 0 days to submit proposed recommended o rders

(ÐPROsÑ), which the undersigned granted. The parties timely

filed their PROs , which have been considered in the preparation

of this Recommended Order. Unless otherwise indicated, all

references are to the 2017 codif ication of the rules and

statutes in effect at the time the incident occurred.

FINDING S OF FACT

The following findings of fact are based on the testimony,

evidence admitted at the formal hearing , and the agreed facts in

the pre - hearing stipulation.

1. The Department is the state agency charged with

regulating the practice of massage therapy pursuant to

section 20.43, Florida Statutes , and c hapters 456 and 480.

2. At all times material to the allegations in this case,

Respondent was licensed to practic e as a massage therapist in

the State of Florida, havin g been issued license number

MA 79509. At all times material to the allegations in this

matter, Respondent was employed as a massage therapist at

Daytona College , in Daytona Beach, Florida.

3. Respon dentÓs address of record is 10 Spanish Pine Way,

Ormond Beach, Florida 32174.

4. S.W. is a licensed mental health counselor who has been

licensed for approximately 22 years. S he resides in Clermont,

Florida , which is where she lived at the time of the massage .

5. In July 2017, S.W. and C.W., her 23 - year - old daughter ,

traveled to the Daytona Beach area to visit S.W.Ós elderly

mother.

6 . O n July 19, 2017 , S.W. and C.W. went to Daytona

C ollege , for the first time, for a massage . Upon arriving at

t he school , they were gre eted by the receptionist .

7. S.W. and C.W. were scheduled for 80 - minute massages to

take place at 3:30 p.m. H owever, the ladies arrive d ten minutes

late, so the massages began late. Upon arrival , the ladies were

asked whether th ey needed to use the restroom, which they did.

After using the restroom, the ladies were taken to the massage

area for their services.

8. S.W. selected the male massage therapist based on her

past positive experience s with male therapists. S.W. had

re ceived a number of massages in the past, including massages by

men. She allowed her daughter to be scheduled with the female

massage therapist because she belie ved her daughter preferred a

woman . S.W. was scheduled for a massage with Respondent , and

C.W. was scheduled with Elizabeth Branson .

9 . Respondent escorted S.W. to the massage room first.

Ms. Brans on escorted C.W. to the room a few minutes later.

10. As Respondent escorted S.W. to the massage room,

S.W. described the areas in which she wante d special attention,

including her neck, shoulders, scalp, and feet. Respondent

asked S.W. whether she needed massage in the sciatic area .

S.W. had problems in the sciatic area, so she consented to have

the area massaged.

11 . The common room where massa ges occurred at Daytona

College contained eight massage tables separated by curtains.

12 . Respondent took S.W. into the massage room and

instructed her to undress to her comfort level. Resp ondent left

the room while S.W. undressed down to her underwear . When

Respondent reentered the room, S.W. was draped with a sheet.

Respondent tucked the drape into S.W. Ós underwear and lowered it

onto her buttocks.

13 . A short time later, S.W. could hear her daughter in

the area near her, but she could not see he r. C.W. whispered to

S.W. to let her know she was in the room. At some point, S.W.

heard her daughter exit the room.

14 . C.W. finished her massage before S.W., even though

S.W. Ós service began before C.W. Ós. C.W. recalled that her

mother was unusu ally quiet during the massage instead of being

Ðchatty, Ñ as she normally would be. C.W. waited in the hallway

outside the massage room for four or five minutes for S.W.Ós

massage to finish. After S.W. came out of the massage room,

C.W. immediately noticed tha t something w as w rong.

15 . When S.W. exited the room , s he was ÐwiredÑ and not

relaxed, as she would normally appear after a massage.

C.W. described her as appearing nervous and agitated.

C.W. could tell that something was wrong, but S.W. did not say

an ything at that time.

1 6 . The two ladies walked to the front desk. As was her

routine, S.W. paid for both massages and left a $10 tip. She

did not make a complaint regarding the massage with the

receptionist before leaving the school .

17 . Concerned reg arding her m otherÓs behavior, C.W. asked

S.W. what happened. S.W. stated that something weird happened.

The ladies left the school and began driving to their

destination. S.W. continued to be upset and ultimately, began

crying . S he was so upset that in itially , she could not

articulate what occurred. S.W. ultimately told C.W. that

Respondent had placed his hand under her underwear and touched

her clitoris .

18 . S.W. contacted her friend Mike, a law enforcement

officer. S.W. explained to Mike what happ ened , and he suggested

that she co ntact the police to report what happened to her .

19 . S.W. and C.W. called the police and requested that an

officer meet the ladies at Daytona College . They also contacted

the school and adv ised them that S.W. had been in appropriately

touched during her massage .

20 . They arrived back at the school approximately

20 minutes later.

21 . The officer arrived shortly after S.W. and C.W. The

officer interviewed S.W. and she reported to him that while

massaging her thi ghs, R espondent ÐgrazedÑ h er vaginal area with

his finger. S.W. also reported that Respondent touched her

clitoris with his finger.

22 . S.W. declined to pursue criminal charges and stated

she would file a complaint with the Department. However, she

expresse d that she wanted to ensure the re was a record of the

incident so another woman would not have the same experience.

23. On or about July 26, 2017, one week later, S.W. filed

a complaint with the Department of Health . S.W. submitted a

typewritten statem ent regarding the events involving Respondent.

S.W. related that at the beginning of the massage, she gave

Respondent permission to p ull down her underwear and tuck in the

drape. She stated that toward the end of the massage,

Respondent Ðgrazed Ñ her vagi na outside her underwear. He then

placed his fin ger under her underwear and began massaging her

clitoris for a couple of seconds. She stated that she grabbed

RespondentÓs hand and pushed it away. In response, Respondent

abruptly told S.W. that the massa ge was done.

2 4 . In addition to the report to the police and the

Department, S.W. also reported the incident to the school

administrators , Dr. Ali and Mr. Brooks . Dr. Ali met with

S.W. and C.W. when they returned to the school. Dr. Ali

described S.W. a s appearing embarrassed, subdued, and

uncomfortable .

2 5 . Mr. Brooks was also p resent during the meeting. He

was called to campus after he received a report that something

in appropriate happened. He observed that S.W. appeared upset.

26 . Although t here was no expert offered to testify in

this matter, Chris Brooks, LMT , provided insight regarding the

type of massage provided to S.W. He explained the difference

between sensualized touch and sexualized touch. A sensualized

tou ch is not uncommon in ma ssage. On the other hand, sexualized

touch is used to evoke sexual pleasure.

27 . At hearing, S.W. was clear and unwavering in her

recollection of the events involving Respondent touching her

vaginal area. S.W. appeared anxious, uncomfortable, and her

voice cracked when she testified that Respondent moved her

underwear and touched her vaginal area. Specifically, s he

testified that Respondent grazed her v agina on top of the front

of her underwear. She was in such shock that it happened she

could not sa y anything . Respondent then put a bare finger

underneath her underwear and began massaging her clitoris . She

still could not speak , so s he quickly grabbed his hand and

pushed it away. Consistent with her statement to the police

officer and her written s tatement, she credibly testified that

Respondent touched her vaginal area with his finger.

28 . At hearing, Respondent denied touching S.W.Ós vagina

during the massage . He also denied rubbing her clitoris.

Mr. Brooks, who is personally and professiona lly acquainted with

Respondent, testified that Respondent seemed shocked to learn of

S.W.Ós complaint.

29 . Respondent testified that he draped S.W.Ós legs in

such a way that it caused the draping to ÐbunchÑ between the

area massaged and the genitalia. Responde nt argues that

S.W. could not determine whether the draping touched her

genitals when Respondent massaged her legs. However, when

pressed on this point, S.W. unequivocally testified that she was

certain it was RespondentÓs finger that touched her clitoris.

30 . Respondent had no prior complaints of inappropriate

touching before S.W.Ós complaint. Although Mr. Brooks asked him

about the complaint on the date of the incident , there was no

evidence offered at hearing that Respondent was formally

inte rviewed by the school administration. However, Respondent

was terminated from his job at Daytona College based on S.W.Ós

complaint. Respondent was also not interviewed by the police

officer investigating the complaint.

31. Respondent was not charged wit h a crime. Respondent

has no prior disciplinary action involving his license to

practice massage therapy.

32 . T he evidence demonstrates that Respondent crossed the

boundaries of appropriate massage into sexual misconduct when he

massaged S.W.Ós clitori s with his finger.

33 . While RespondentÓs testimony seemed sincere, S.W. was

more persuasive.

34 . Based on the totality of the evidence presented at

hearing, there is clear and convincing evidence that Respondent

touched S.W.Ós vaginal area or clit oris with h is finger. The

placement of a massage therapistÓs finger on the vaginal area or

clitoris of a patient is outside the scope of the professional

practice of massage therapy.

CONCLUSIONS OF LAW

35 . The Division of Administrative Hearings has

juri sdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.5 7(1),

Florida Statutes (2018 ).

36 . The Department is seeking to take disciplinary action

against Respondent's license as a massage therapist. Be cause

disciplinary proceedings are considered to be penal proceedings,

the Department has the burden to prove the allegations in the

Administrative Complaint by clear and convincing evidence.

Dep't of Banking and Fin. v. Osborne Stern and Co. , 670 So. 2d

932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

37 . As stated by the Supreme Court of Florida:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be di stinctly remembered; the

testimony must be precise and lacking in

confusion as to the facts in issue. The

evidence must be of such a weight that it

produces in the mind of the trier of fact a

firm belief or conviction, without

hesitancy, as to the truth o f the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) ( quoting Slomowitz

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

38 . Moreover, disciplinary provisions must be strictly

construed in favor of the licensee. Elmariah v. Dep't of Prof Ól

Reg. , 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep't of

ProfÓl Reg. , 534 So. 782, 784 ( Fla. 1st DCA 1988).

39 . The Administrative Complaint charged Respondent with

violating section s 480.046(1)(p) and 480 .0485 .

40 . Sectio n 480.046(1)(p) provides, in pertinent part, as

follow s :

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(p) Violating any provision of this chapter

or chapter 456, or any ru les adopted

pursuant thereto.

41 . Section 480.0485 provides as follows:

Sexual misconduct in the practice of massage

therapy.

The massage therapist - patient relationship

is founded on mutual trust. Sexual

misconduct in the practice of massage

thera py means violation 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 practice or the scope of generally

accepted examination or treatment of the

patient. Sexual misconduct in the practice

of massage therapy is prohibited.

42 . Rule 64B7 - 26.010 provides in pertinent part:

(1) Sexual activity by any person or

pe rsons in any massage establishment is

absolutely prohibited.

* * *

(4) As used in this rule, Ðsexual activityÑ

means any direct or indirect physical

contact by any person or between persons

which is intended to erotically stimulate

either person or bot h or which is likely to

cause such stimulation.

43 . Based on the evidence presented at hearing, there is

clear and convincing evidence to support the allegations in the

Administrative Complaint. While S.W. did not immediately

complain to the staff afte r the massage, she was visibly anxious

when she left the school. When she was alone with her daughter ,

she was upset and began to cry when trying to tell her daughter

what happened to her. Consistent with C.W.Ós testimony,

Dr. Ali , who albeit may have an interest in protecting the

school, testified t h at S.W. appeared uncomfortable, embarrassed,

and subdued. Moreover, S.W. described the incident

consistently, with few inconsequential variations, when she

reported the incident to the police; when she provi ded her

written statement in support of her complaint; and when she

testified at hearing.

44 . The Board has adopted r ule 64B7 - 30.00 2 , which includes

the Board of Massage TherapyÓs Disciplinary Guidelines for

penalties to be imposed upon a finding of vi olations of statutes

or rules governing massage therapy. The penalty for a first -

time violation of section 480.485 is a $2,500 fine and

revocation. Aggravating and mitiga ting factors are identified

in r ule 64B7 - 30.002(4) and have been considered.

45 . It is noted that Respondent has no prior disciplinary

action against his license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

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

final order finding :

1. Responde nt guilty of violating secti ons 480.046(1)(p)

and 480.0485 as further defined in r ule 64B7 - 26.010 ;

2. Imposing a fine of $2,500 ; and

3. Revoking RespondentÓs license to practice massage

therapy.

DONE AND ENTERED this 5th day of April , 2019 , in

Tallahasse e, Leon County, Florida.

S

YOLONDA Y. GREEN

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 5th day of April , 2019.

ENDNOTE

1/ The patients are identified by their initials to protect the

confidentiality of their identity.

COPIES FURNISHED:

Lance O. Leider, Esquire

The Health Law F irm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

(eServed)

Ross Daniel Vickers, Esquire

Gerald C. Henley, Esquire

Florida Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3257

(eServed)

Ka ma Monroe, Executive Director

Board of Massage Therapy

Department of Health

Bin C06

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Louise Wilhite - St Laurent , General Counsel

Department of Health

Bin C65

4052 Bald Cypress Way

Tallahasse e, 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 should be filed with the agency that

will issue the Final Order in this case.