19-002730PL Department Of Health, Board Of Massage Therapy vs. Cameron Kellogg, L.M.T. Status: Closed Recommended Order on Monday, September 30, 2019.

Summary: Board of Massage proved sexual misconduct in violation of ? 480.0485 by clear and convincing evidence. Groping patient's breasts and asking if she wants oral sex are sexual misconduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

Case No. 19 - 2730PL

vs.

CAMERON KELLOGG, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (DOAH) , heard this case by

video teleconference on August 14, 2019, at sites in

St. Petersburg and Tallahassee, Florida.

APPEARANCES

For Petitioner: Jamal Burk, Esquire

Gabriel Girado, Esquire

Florida Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

For Respondent: Cameron Kellogg, pro se

7125 Mayfield Drive

Port Richey, Florida 34668

STATEMENT OF THE ISSUE

Did Respondent, Cameron Kellogg, L.M.T., attempt to induce

patient, L.R.A., to engage in sexual activity as prohibited by

section 480.0485, Florida Statutes (2018)? 1/

PRELIMINARY STATEMENT

Petitioner, Florida Department of Health, Board of Massage

Therapy (Board), filed its Administrative Complaint against

Mr. Kellogg on January 14, 2019. The Complaint alleges

Mr. Kellogg groped L . R . A . 's breasts, pinched her nipples, and

asked her if she wanted him t o perform oral sex. Mr. Kellogg

disputed the charges and requested a formal administrative

hearing. The Board referred the matter to DOAH.

The Board moved to compel Mr. Kellogg's deposition.

Mr. Kellogg did not comply with an order directing him to res pond

to the motion. The undersigned rendered an Order Compelling

Respondent's Deposition.

Before the hearing date, Mr. Kellogg filed a Motion for

Summary Judgment, Case Dismissal, Removal of Complaint, and

Lifting of Restriction , and a Motion for Relief. The undersigned

rendered orders denying both motions.

The undersigned conducted the hearing on August 14, 2019.

The Board did not present live testimony. It relied upon three

videotaped depositions in lieu of live testimony . Board Exhibits

1 through 8 were admitted.

Mr. Kellogg testified on his own behalf. He did not offer

any exhibits.

After the hearing, Mr. Kellogg filed two motions for

mistrial. They were denied by an order stating the motions'

arguments would be considered in preparation of th e recommended

order.

Mr. Kellogg filed f ive other motions after the hearing.

They are: (1) Respondent's Motion for a Response (filed

8/29/19) ; (2) Respondent's Motion for a Second Hearing to

Address New Evidence (filed 9/3/19) ; (3) Respondent's Moti on to

Grant Recommended Order (filed 9/13/19) ; (4) Respondent's Motion

to Dismiss Case (filed 9/19/19) ; and (5) Respondent's Motion for

Case Dismissal (filed 9/27/19) . They are addressed at the end of

this Order. The arguments advanced in the motions were

considered in the preparation of this R ecommended O rder.

Mr. Kellogg created three purported subpoenas on

September 1, 2019 ( filed on September 3, 2019 ) , commandi ng non -

parties to appear at DOAH on September 4, 2019. The undersigned

issued an order quashing the subpoenas.

The T ranscript was filed September 12, 2019. Both parties

timely filed proposed recommended orders. They have been

considered in the preparati on of this R ecommended O rder.

FINDING S OF FACT

1. Section 20.43 and chapters 456 and 480, Florida Statutes

(2019), charge the Florida Department of Health and the Board

with licensing and regulating massage therapy.

2. At all times material to the alle gations of the

Administrative Complaint, Mr. Kellogg was a licensed massage

therapist.

3. In August of 2018, Mr. Kellogg was providing massage

therapy services for guests of the Opal Sands Resort and Spa

(Opal Sands) . L.R.A . and her husband G.A. were guests at Opal

Sands. August 30, 2018 , was their last full day there. L.R.A.

scheduled a massage for that day. Before the scheduled time,

L.R.A. and G.A. were relaxing at the pool. They had a drink at

the pool . There is no credible evidence indi cating that either

became intoxicated.

4. L.R.A. left the pool to attend her scheduled massage.

G.A. stayed at the pool to wait for her.

5. When L.R.A. arrived at the spa, she was directed to a

changing area. She removed her clothes and bra, leaving on her

underwear, and put on a robe supplied by the spa. Afterwards she

met Mr. Kellogg in the waiting room , and he escorted her to the

massage room. He left the room. She removed the robe and la id

face down on the table covered with a drape. The mass age began

uneventfully. Midway through the massage L.R.A. turned over at

Mr. Kellogg's request. This is typical in massages. During the

massage, as is normal, L.R.A. became more and more relaxed, to

the point of drowsiness .

6. At the end of the massa ge period, Mr. Kellogg was

standing at L.R.A.'s head massaging her shoulders and clavicle.

He slowly moved his hands beneath the drape and began groping and

fondling L.R.A.'s breasts. Then he pinched her nipples.

7. L.R.A. was shocked and astonished. Naked and

vulnerable, she was speechless and embar r assed. Then Mr. Kellogg

asked her if she wanted him to perform oral sex saying, "Do you

want me to eat your p --- y ? " Still speechless and shocked, L.R.A.

shook her head no several times vigorously. Mr. Kellogg said

"OK" and left the room.

8. The actions described in findings six and seven are not

part of an appropriate massage and were not invited or consented

to by L.R.A. in any way. Mr. Kellogg violated the massage

therapist - patient relationship an d used it to attempt to induce

L.R.A. in sexual activity. His actions were also sexual activity

engaged in through direct contact with L.R.A.

9. Still in shock, L.R.A. dressed, went to the front desk,

and signed to charge the massage to her room account, leaving a

$5.00 tip. She returned to the pool to meet her husband. She

was in emotional distress and trying to decide how to tell her

husband of Mr. Kellogg's assault. After meeting and talking a

while at the pool, L.R.A. and G.A. went to their room to shower.

10. Afterwards they left the resort and walked to a nearby

souvenir and ice cream stand. After leaving the stand, L.R.A.

ask ed her husband to sit down because she had something to tell

him. This was only two hours after Mr. Kellogg groped her.

During that time L.R.A. was processing her reactions and shock

and thinking about how to tell her husband. She recounted the

events t o G.A., but did not repeat Mr. Kellogg's crass language,

at first. She did not tell him about Mr. Kellogg pinching her

nipples until a few weeks later. She thought those details would

cause too much stress and anger on top of the other events.

L.R.A. an d G.A. decided that reporting Mr. Kellogg's behavior to

the resort management was important and returned to Opal Sands.

They told the front desk attendant that they needed to speak to

the manager about something that happened in the spa. The

attendant as ked if they wanted the manager to come to their room.

They said yes.

11. The spa manager, Lexandra Gheradini, came to the room

of L.R.A. and G.A. They told her about Mr. Kellogg's actions and

request to perform oral sex. Ms. Gheradini apologized. But she

did not ask them to complete any paperwork to document the

assault. The resort only refund ed the charge for the massage.

12. L.R.A. reported Mr. Kellogg's actions within a

reasonable period of time given her shock and embarrassment. At

first she did not contact the police because of her

embarrassment. Also, she and G.A. were preparing to leave the

next day to return to their home in Pennsylvania.

13. In Pennsylvania , L.R.A. told her friend K.E. about the

incident. K.E. encouraged L.R.A. to report the incident to the

police. L.R.A. reported it to the Clearwater police. She also

reported the incident to the Florida Department of Health.

14. The videotaped depositions provided clear and distinct

views of the faces of L.R.A. and G.A. while testifyin g. Their

facial expressions, body language, and reactions to Mr. Kellogg's

questions made their testimony compelling and persuasive.

15. Mr. Kellogg denied touching L.R.A.'s breasts.

Mr. Kellogg, although he testified in person, was not persuasive.

Th e majority of his testimony was argument about why L.R.A.'s

testimony should not be accepted and complaints about how the

charges have affected him. His denials were brief and

unpersuasive. In addition, Mr. Kellogg testified that "I asked

to eat her p --- y." He minimizes this as "saying something

stupid."

16. Mr. Kellogg argues that L.R.A., G.A., and K.E. should

not be believed because, when testifying a year after events,

they do not remember some details. The argument is not

persuasive. Forgetting so me details peripheral to a shocking

event a year afterwards is not unusu al. The memories of L.R.A.,

G. A., and K.E. are distinct, clear , and consistent on the

important facts. In addition, L.R.A.'s prompt reports of the

incident to G .A. and the spa manage r enhance her credibility. So

too does the consistency of her description of events to K.E.

Mr. Kellogg's testimony corroborates half of L.R.A.'s account.

The record contains no evidence suggesting any motive for L.R.A.

to fabricate her account.

CONCLUS IONS OF LAW

17. S ections 120.569 and 120.57(1), Florida Statutes (2019)

grant DOAH jurisdiction over the subject matter of and the

parties to this action .

18. Section 480.046(1)(p) , Florida Statutes, authorizes the

Board to impose discipline against a licensee for violating any

provision of chapters 480 and 456, or the rules adopted by the

Board.

19. The Board proposes to take disciplinary action against

Mr. Kellogg ' s massage therapy license. Becaus e this is a penal

proceeding, the Board must prove its allegations by clear and

convincing evidence. Nair v. Dep't of Bus. & Prof'l Reg., Bd. of

Med. , 654 So. 2d 205 (Fla. 1st DCA 1995). As the Supreme Court

of Florida stated, quoting Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983):

[C]lear 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 the 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 establis hed.

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

20. L.R.A.'s testimony about the significant facts was

credible. She distinctly remembered Mr. Kellogg groping her

breasts and proposing to perform oral sex. Her testimony was

precise and explicit. Her contemporaneous reports of the assault

to G .A and to the spa manager enhance her credibility.

Mr. Kellogg's admissi on to proposing oral sex confirms L.R.A.'s

testimony on that subject. Further, it indicates his orientation

toward sex at the time of the massage . This is consistent with

testimony that he groped L.R.A.'s breasts and pinched her

nipples .

21. In disciplinary proceedings, the statutes and rules

allegedly violated must be strictly construed in favor of the

licensee. Elmariah v. Dep't of Prof'l Reg. , 574 So. 2d 164

(Fla. 1st DCA 1990); Taylor v. Dep't of Prof'l Reg. , 534 So. 2d

782, 784 (Fl a. 1st DCA 1988).

22. Strict construction of the statutes and rules involved

is not an issue here. The statutes are clear . Mr. Kellogg's

conduct plainly falls within their prohibitions.

23. Section 480.0485 prohibits sexual misconduct in the

practice o f massage therapy. It says:

Sexual misconduct in the practice of massage

therapy 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

engag e, or to engage or attempt to engage the

patient, in sexual activity outside the scope

of practice or the scope of generally

accepted examinati on or treatment of the

patient.

24. Florida Administrative Code Rule 64B7 - 26.010(4) defines

sexual activity a s follows:

any direct or indirect physical contact by

any person or between persons which is

intended to erotically stimulate either

person or both or which is likely to cause

such stimulation and includes sexual

intercourse, fellatio, cunnilingus,

masturb ation, or anal intercourse.

25. Touching a patient ' s breasts and vaginal area during a

massage is sexual misconduct. Nath v. State Dep't of Health ,

100 So. 3d 1273 (Fla. 1st DCA 2012). Offering oral sex to a

massage therapist client is sexual miscond uct. Dep't of Health

v. Li , Case No. 18 - 0898PL (Fla. DOAH May 18, 2018; Fla. DOH

Mar. 25, 2019).

26. Mr. Kellogg's groping of L.R.A. 's breasts was

prohibited sexual activity. A sking if she wanted him to perform

oral sex was an attempt to induce her to engage in sexual

activity, including one speci fically listed in the rule. The

Board proved its charges by clear and convincing evidence.

27. Florida Administrative Code Rule 64B7 - 30.002

establishes disciplinary guidelines for ma ssage therapists. Rule

64B7 - 30.002(3)(q)2. mandates a $2,500 fine and license revocation

for violation of section 480.0485. Florida Administrative Code

Rule 64B7 - 30.002(4) lists aggravating and mitigating

circumstances to consider. The only mitigating c ircumstance

present are the absence of previous violati o ns and the lengt h of

time Mr. Kellogg has practice d . Fla. Admin. Code R. 64B7 -

30.002(4)(c) and (d). Aggravating circumstances listed include

danger to the public, recency of the violation, emotional damage

to L.R.A., deterrent effect of the penal t y , lack of

rehabilitation effort, and the deliberateness of the violation

(actual knowledge) . License revocation and a $2,500 fine are the

proper penalties.

PENDING MOTIONS

28. Respondent's Motion for a Response (filed 8/29/19) –

This motion complains about when and if the Board responds to

Mr. Kellogg's many motions . The motion demands requiring L.R.A.,

K.E., and G.A. to turn over financial records as a remedy. There

is no authority for this at this stage in the proceedings . The

information could also have been sought during discovery. The

motion demands that Board counsel answer questions from

Mr. Kellogg. There is no authority for this. In addition, the

motion asserts that Board employees went to Mr. Kellogg's

workplace seeking a massage in order to entrap him. If there is

a factual basis for this claim, Mr. Kellogg should have presented

it at the final hearing. 2/ If this claim were true, the alleged

facts wou ld not affect the outcome of this matter because the the

charges here involve events that occurred before the

investigation began. The motion also complains about the Board's

refusal to settle with Mr. Kellogg. This too is not grounds for

relief. The mo tion is DENIED.

29. Respondent's Motion for a Second Hearing to Address New

Evidence (filed 9/3/19) – This motion alleges that Board counsel

scheduled a couples massage with Mr. Kellogg involving female

guests between September 1, 2018 , and December 12, 2 018. This

motion also claims the Board tried to entrap him. It recites

Mr. Kellogg's suspicions and speculation. If the claim were

true, it would not be grounds for relief since the charges in

this case and all evidence presented involve events that oc curred

in August 2018. The motion is DENIED.

30. Respondent's Motion to Grant Recommended Order (filed

9/13/19) – This motion seeks dismissal of this proceeding on the

grounds that the Board did not timely file its proposed

recommended order. Proposed r ecommended orders were due ten days

after filing of the transcript. The transcript was filed

September 12, 2019. Proposed recommended orders were not yet due

on September 13, 2019, when Mr. Kellogg filed his motion. The

Board timely filed its proposed r ecommended order on September

23, 2019. The motion is DENIED.

31. Respondent's Motion to Dismiss Case (filed 9/19/19) –

This motion reiterates Mr. Kellogg's complaint that the Board

failed to settle with him and had not timely filed a proposed

recommende d order. Refusal to settle is not grounds for

dismissing a case. The board timely filed its proposed

recommended order. The motion is D ENIED .

32. Respondent's Motion for Case Dismissal

( filed 9/27/19) – This motion repeats claims in earlier motions

about Board employees going to Opal Sands after the events

relevant to this proceeding and arguments about witness

credibility . The credibility arguments have been considered.

The claims about Board employees going to Opal Sands, if true,

would not be re levant in this proceeding si nc e nothing that

happened at Opal Sands during that time period was the subject of

the charges or evidence in this matter. The motion is DENIED.

COSTS OF INVESTIGATION AND PROSECUTION

33. Section 456.072(4), Florida Statute s, mandates the

Board to "assess costs related to the investigation and

prosecution of the case." Mr. Kellogg is required to pay the

Board's costs of investigation and prosecution.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions o f

Law, it is RECOMMENDED that Petitioner, Florida Department of

Health, Board of Massage Therapy, enter a final order:

A. Finding that Respondent, Cameron Kellogg, LMT, violated

section 480.0485, Florida Statutes.

B. Revoking the license of Cameron Kellogg, L . M . T.

C . Imposing a fine of $2,500.00 on Cameron Kellogg , L . M . T.

D. A ssess ing costs of the investigation and prosecution of

this case against Cameron Kellogg, L . M . T . , to be paid to

Petitioner, Florida Department of Health.

DONE AND ENTERED this 30th day of September , 2019 , in

Tallahassee, Leon County, Florida.

JOHN D. C. NEWTON, II

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 30th day of September , 2019 .

ENDNOTE S

1/ citations to the Florida Statutes are to the 2018 All

edition unless stated otherwise.

2/ As stated in the Pre - Hearing Order rendered, August 1,

2019, the undersigned explained the nature of these proceedings

to Mr. Kellogg during the pre - hearing conference and suggested

that he review the information available through the

"Representing Yourself" link on the DOAH website.

COPIES FURNISHED:

Gabriel Girado, Esquire

Florida Department of Health Prosecution Services Unit Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Cameron Kellogg

7125 Mayfield Drive

Port Richey, Florida 34668

(eServed)

Jamal Burk, Esquire

Florida Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Louise Wilhite - St. Laurent, General Counsel

Florida Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

(eServed)

Kama Monroe, Executive Director

Board of Massage Therapy

Florida Department of Health

Bin C - 65

4052 Bald Cypress Way

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 Order should be filed with the agency that

will issue the Final Order in this case.