19-005314PL Department Of Health, Board Of Massage Therapy vs. Mingli Li, L.M.T. Status: Closed Recommended Order on Thursday, February 13, 2020.

Summary: Petitioner presented clear and convincing evidence of a LMT attempting to engage in sexual misconduct, and violating the standard of care through a failure to drape client. Recommended: revocation and $3,500.00 fine.

drape a client as alleged in the First Amended Admini strative Complaint 1

(AAC), and if so, what disciplinary action should be taken against

Respondent’s license.

P RELIMINARY S TATEMENT

On September 24, 2019, the Department of Health (DOH or the

Department ), on behalf of the Board of Massage Therapy (Petition er), issued

a three - count AA C against Respondent , Mingli Li (Respondent), a licensed

massage therapist. The AAC set forth factual allegations and charges that Respondent committed sexual misconduct in the practice of massage therapy ,

and failed to practice massage therapy with that level of care, skill, and

treatment that is recognized by a reasonably prudent massage therapist.

Respondent disputed the facts and requested an administrative hearing.

2

On September 27, 2019, DOH’s Prosecution Services Unit fil ed Petitioner’s

Unopposed Motion to Re - Open Proceeding . At the parties’ joint request, the

final hearing was set for Tuesday, December 10, 2019, in Orlando, Florida, and proceeded as scheduled.

Prior to the hearing, the parties filed a Joint Pre - Hearing Stipulation in

which they stipulated to several facts that would not require evidence at

hearing. The stipulated facts, to the extent relevant, have been incorporated

in the Findings of Fact below.

1 This case was originally filed with DOAH on May 8, 2019 , and assigned DOAH Case No. 19 -

2389PL. On July 3, 2019, Petitioner’s Opposed Motion to Relinquish Jurisdiction (Motion)

was filed. Within the Motion, Petitioner pro vided that “ during Respondent’s deposition , ”

additional “factual allegations or charges should be included in” an amended c omplaint. The

undersigned issued an Order Closing File and Relinquishing Jurisdiction on July 11, 2019.

On September 27, 2019, Petiti oner’s Unopposed Motion to Re - Open Proceeding was filed, and

the current docket number was assigned.

2 A revised Elections of Rights form, specifically disputing the AAC allegations issued on

September 24, 2019, was not filed with DOAH.

At hearing, Petitioner pre sented the live testimony of F. M ., an undercover

law enforcement officer (LEO) of the Metropolitan Bureau of Investigation

(MBI), and , by deposition , Faith R. Buhler, Petitioner’s expert witness.

Petitioner’s Exhibit 1, Respondent’s June 25, 2019, deposition transcript was

admitted witho ut objection. Petitioner’s Exhibits 2 and 3,

Ms. Buhler’s July 9, 2019 , deposition and her curriculum vitae, were

admitted over objection.

Respondent testified on her own behalf, and offered one exhibit which was

admitted into evidence without objection. Respondent’s Exhibit 1 pertained to

Respondent’s dismissed criminal charges. 3 Lucy Halbert, a sworn Chinese

Mandarin interprete r – t ranslator , was present and assisted Respondent with

her testimony and the proceeding.

At the conclusion of the hearing , Pet itioner, with concurrence from

Respondent via her counsel, requested that the undersigned set January 17, 2020, as the filing deadline for the proposed recommended orders (PROs).

Both parties anticipated the hearing transcript would be filed ten business d ays after the hearing, which did not occur. On January 9, 2020, Petitioner’s

Unopposed Motion for Extension of Time to File Proposed Recommended Orders was filed. The Orde r, which granted the parties ten days following the

filing of the hearing transcript to file their PROs , was issued on January 10,

2020.

The one - volume Transcript of the final hearing was filed on January 14,

2020. On January 15, 2020, an Amended Notice of Filing Transcript was

issued providing that the PROs would be due on or before Janu ary 27, 2020.

Both parties timely filed their PRO s , and each has been considered in the

preparation of this Recommended Order.

3 The criminal ch arges alleged: (1) entering or remaining in any place or structure for the

purpose of prostitution; and (2) prostitution, both second - degree misdemeanors.

Except as otherwise indicated, citations to Florida Statutes and Florida

Administrative Code R ules refer to the versions in effe ct in March 2016, the

time during which the violations were allegedly committed.

F INDINGS OF F ACT

1. Petitioner is the state agency charged with regulating the practice of

massage therapy in the state of Florida, pursuant to section 20.43 and

chapters 456 and 480, Florida Statutes.

2. At all times material to this proceeding, Respondent was licensed as a

massage therapist in Florida, having been issued license number MA 80545.

In the time since Respondent was licensed, no prior disciplinary action has

been taken against her license.

3. Respondent was born in the Liaoning Province , North China , and came

to the United States in 2005. Respondent is a U. S. citizen. Respondent

attended a Beauty School for her massage education and her educational

instruction at school was in English. Further, when she took the examination

to become a Florida licensed massage therapist , the examination was in

English, and no one helped her to translate the material.

4. Respondent’s address of record is 9986 Red Eagle Drive, Or lando,

Florida, 32826. 4

5. At all times relevant to the AAC , Respondent practiced massage

therapy, as defined in section 480.033(3), at Golden Asian Massage, LLC, doing business as T he Wood Massage (Golden Asian). Golden Asian was

located at 1218 Winter G arden Vineland Road, Suite 124, Winter Garden,

Orange County, Florida.

4 On November 26, 2019, the part ies filed a J oint Pre - hearing S tipulation , stipulating that

Responden t’s address of record was in New York . At some point after the March 2016

investigation , Respondent moved out of Florida. Then, either before or after November 26,

2019, Respondent moved back to Florida, but failed to advise her counsel or DOH of her

addre ss change. Respondent’s counsel stated that he would ensure Respondent filed the

appropri a te cha nge of address information with DOH .

6. At the time of the investigation, the LEO had been trained at the police

academy, had multiple courses in vice - related investigations, human

trafficking investigations, and drug traf ficking investigations , including

prostitution activities. The LEO has participated in “well over a hundred”

undercover prostitution operations. The LEO’s investigation assignments “as

a whole” include “anything that would be vice - related, drug trafficking or

human trafficking.”

7. The MBI is a joint police task force for the Ninth Judicial Circuit, which

includes Orange County and Osceola County. MBI routinely investigates vice,

human trafficking crimes, and mid - level to upper - level narcotic

organizations.

8. Once the MBI receives a complaint about a massage parlor, an

undercover investigation is initiated. An undercover investigation team

u sually consists of five law enforcement personnel : a supervisor - in - charge ;

the undercover agent (agent) ; and two to th ree additional support personnel .

An agent goes into the establishment, posing as a customer. Once the agent is

on the massage table, the agent waits for the massage therapist to initiate,

either via conversation or through an overt act, a predisposition f or sexual

activity. In some instances , the massage therapist might glide their fingers in

the inner thigh, or speak of some sexual activity. Once the massage therapist

initiates an actual sex act, the agent then tries to stop the sex act, while engaging in conversation.

9. On March 9, 2016, after receiving a tip or complaint about the

establishment, the MBI conducted an undercover inve stigation of the Golden

Asian. The LEO arrived at the Golden Asian, met Respondent at the counter ,

and in English, asked for a 30 - minute massage. Respondent responded in

English and told the LEO it would cost $50 for a 30 - minute massage. The

LEO agreed to the cost, and Respondent led the LEO to a massage room within the Golden Asian.

10. The LEO got completely undressed and po sitioned himself on his

stomach, f ace - down on the massage table. Upon entering the room,

Respondent grabbed a towel and placed it on the LEO’s back midsection . The

LEO described the area covered as “pretty much my buttocks to, like, my

lower back,” but the towel was not tucked in. Using oil , Respondent massaged

the LEO’s back, thig hs, and neck. While the LEO was still on his stomach

and roughly ten to 15 minutes through the massage, the towel fell off . The

LEO did nothing to dislodge the towel while he was on his stomach.

11. Roughly halfway through the 30 - minute massage, Respondent

“stopped massaging and it was more of a gliding motion from [the LEO’s]

back to [the LEO’s] inner thighs.” With this action, the LEO determined that

Respondent was predisposed to engage in sexual activity.

12. Respondent directed the LEO to turn over, which he did. The LEO

testified that after he turned over his genitals were exposed . Respondent put

more oil on her hands and massaged the LEO’s chest to his thigh area.

Responden t further testified that Respondent “would glide and touch [the

LEO’s] penis and scrotum.”

13. Respondent asked the LEO if he liked it when Respondent “tapped”

the LEO’s penis. The LEO answered “yes” to Respondent’s question. The

touching of the LEO’s pe nis and scrotum again provided the predisposition

that sexual activity could be engaged. The LEO then asked Respondent for

oral sex , i.e. a blow job. Respondent declined to perform oral sex . The two

engaged in talking and hand gesturing regarding manual ma sturbation and

its cost . The LEO testified Respondent raised her hand to indicate manual

masturbation would be $40.00. Respondent testified that she said “no” and

did not state a price. As provided below, Respondent’s testimony was not

credible.

14. The L EO told Respondent that $40.00 was too expensive for

masturbation . He then grabbed the original towel that had draped him from

between his legs, cleaned the oil, dressed, and left the massage

establishment. Shortly thereafter, Respondent was arrested. 5

5 The dismissal of Respondent’s criminal charges is not probative of whether she committed

the regulatory violations.

15. Respondent’s hearing testimony of how the towel fell off during the

LEO’s massage differs from her deposition testimony. At hearing,

Respondent testified that when the LEO flipped over, the towel fell off and

she did not grab i t fast enough. Respondent th en added it took her “one

minute, two minutes” to adjust the towel. Respondent admitted that she

exposed the LEO’s ge nitals without his permission. However, during her deposition, Respondent blamed the type of oil massage that she was

administering to the LEO for the towel falling off. Respondent claimed that

her hand movement was “pretty hard. So with the movement, the towel

shifting a little bit by little bit, and then [th e towel] fell off completely.”

Respondent also testified that she “saw it [the towe l] dropped off, then [she]

put it back right away.” In either instance, the LEO’s genitals were exposed

without his consent.

16. At the hearing, Respondent’s description of the towel used on the LEO

changed from her deposition. During the hearing, Responde nt testified the

towel was “one to two feet wide . . . the length is about 1.5 meters [over four

feet]. I’m not exactly sure.” However, i n her deposition, Respondent provided

that the towel was “more like a facial towel. It’s not a very big shower towel, b ut it’s more a facial towel size . . . one [foot] by two [foot].”

17 . Respondent’s testimony describing the LEO’s massage is not clear or

credible and is rejected. The LEO’s testimony was credible, clear, convincing ,

and credited .

18. Ms. Buhler is a lice nsed massage therapist and based on her

education, training, and experience , she is accepted as an expert in massage

therapy.

19. “ Draping ” is covering the body while a massage therapist is working

on it

for the client’s comfort and privacy . Usually , a sh eet is used for draping

a client (i f the room is too co ld, a blanket could be added). As a massage

therapist works on specific body areas , that body part is uncovered and the

towel repositioned when the therapy to that area is completed. Ms . Buhler

opined that the size of the towel ( “ 1 [foot] x 2 [foot]” as described by

Respondent in her deposition) is “very small,” and is an unusual drape size.

Further , she opined that a “1 x 2 towel barely covers anything. It would be

almost impossible not to either view something or potentially accidentally

bump somethi ng with a drape of that size.” If any drape were displaced

during a massage, the standard of care requires that the drape be put back in

place immediately , not in one or two minutes .

20 . Ms. Buhler opined t hat “anytime a therapist attempts to, either for

their own pleasure or for the pleasure of the client, to get any sort of sexual

gratification, that is considered sexual misconduct.” A therapist has a choice

when any type of sexual act ivity is suggested or offered. A therapist can

redirect someone, state that the activity is not appropriate for the setting,

threaten to terminate the massage, or in fact, terminate the massage by

leaving the treatment room. Respondent provided that she continued to

massage th e LEO for one or two minutes a fter the request for oral sex.

Although Respondent claimed she said “No,” she did not take any affirmative

action to terminate the session or remove herself from the situation.

2 1 . Respondent’s actions on March 9, 2016 , were outside the scope of

generally accepted treatment of massage therapy patients.

2 2 . There is no evidence that Respondent has ever had any prior discipline

imposed against her license.

C ONCLUSIONS OF L AW

23 . The Division of Administrative Hearings has juri sdiction over the

parties and the subject matter of this proceeding pursuant to sections

480.046(4), 120.569 , and 120.57(1), Florida Statutes .

2 4 . Petitioner initiated this disciplinary proceeding pursuant to its

authority to prosecute complaints chargi ng violations of the licensing laws

governing licensed massage therapists such as Respondent. § 456.073, Fla. Stat.

2 5 . In this penal proceeding, Petitioner has the burden of pleading with

particularity in the administrative complaint , the facts , and law o n which it

relies to take disciplinary action against Respondent. Trevisani v. Dep’ t of

Health , 908 So. 2d 1108 (Fla. 1st DCA 2005); Cottrill v. Dep’ t of Ins. , 685 So.

2d 1371, 1372 (Fla. 1st DCA 1996); Willner v. Dep’t of Prof’ l Reg., Bd. of

Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA 1990). The AAC meets these

standards.

2 6 . 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). Petiti oner must therefore prove the charges

against Respondent by clear and convincing evidence. Fox v. Dep’t of Health ,

994 So. 2d 416, 418 (Fla. 1 st DCA 2008) ( Dep’ t of Banking & Fin. v. Osborne

Stern & Co . , 670 So. 2d 932, 935 (Fla. 1996). As stated by the Fl orida

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

confu sion 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 established.

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

492 So. 2d 797, 800 (Fla. 4th DCA 1983). “ Although this standard of proof

may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous . ” Westinghouse Electric C orp., Inc. v. Shuler

Bros., Inc ., 590 So. 2d 986, 988 (Fla. 1st DCA 1991) (citations omitted).

2 7 . Disciplinary statutes and rules “must be construed strictly, in favor of

the one against whom the penalty would be imposed.” Griffis v. Fish &

Wildlife Cons erv. 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, 1143 (Fla. 1st DCA 1992).

2 8 . Respondent is charged with engaging in sexual misconduct in the

practice of massage therapy , in violatio n of section 480.0485 and Florida

Administrative Code Rule 64B7 - 26.010(1), (3) , and (4), for which Respondent

is subject to discipline pur suant to section 480.046(1)(p).

2 9 . Section 480.046(1) provides in pertinent part:

(1) The following acts constitute g rounds for denial

of a license or disciplinary action, as specified in

s. 456.072(2):

(i) Gross or repeated malpractice or the failure to

practice massage with that level of care, skill, and

treatment which is recognized by a reasonably

prudent massage therapist as being acceptable

under similar conditions and circumstances.

* * *

(p) Violating any provision of this chapter or

chapter 456, or any rules adopted pursuant thereto.

30 . 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 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 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 misc onduct in the practice of

massage therapy is prohibited.

3 1 . Rule 64B7 - 26.010 provides in pertinent part:

(1) Sexual activity by any person or persons in any

massage establishment is absolutely prohibited.

* * *

(3) No licensed massage therapist shall use the

therapist - client relationship to engage in sexual

activity with any client or to make arrangements to

engage in sexual activity with any client.

(4) As used in this rule, “sexual activity” means any direct or indirect physical contact by an y 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, masturbation, or

anal intercourse. For purposes of this subsect ion,

masturbation means the manipulation of any body

tissue with the intent to cause sexual arousal. As

used herein, sexual activity can involve the use of any device or object and is not dependent on whether penetration, orgasm, or ejaculation has occurre d. Nothing herein shall be interpreted to

prohibit a licensed massage therapist, duly qualified under Rule 64B7 - 31.001, F.A.C, from

practicing colonic irrigation.

3 2 . Rule 64B7 - 30 . 0 01 provides in pertinent part:

The following acts shall constitute the fai lure to

practice massage therapy with that level of care,

skill, and treatment which is recognized by a reasonably prudent similar massage therapist as

being acceptable under similar conditions and

circumstances:

* * *

(5)

Failure to appropriate ly drape a client.

Appropriate draping of a client shall include draping of the buttocks and genitalia of all clients, and breasts of female clients, unless the client gives specific informed consent to be undraped .

33. The Department presented clear and convincing evidence that the

LEO had a massage therapist - patient relationship with Respondent by

demonstrating the he received a paid massage from Respondent at Golden Asian.

3 4 . The Department proved by clear and convincing evidence that ,

Respondent en gaged in or attempted to engage in sexual misconduct in the

practice of massage therapy in violation of section 480.0485 and R ule 64B7 -

26.010, when she: touched the LEO’s penis; asked the LEO if he liked it; and

engaged in communications about oral sex, ma nual masturbation , and the

cost of such acts.

3 5 . The Department proved by clear and convincing evidence, and in part

through Respondent’s admission , that the towel fell off the LEO exposing his

genital s , without his specific permission , in violation of section 480.046(1)(i)

and Rule 64B7 - 30.001(5).

3 6 . The Board of Massage Therapy imposes penalties upon licensees in

accordance with the disciplinary guidelines prescribed in Rule 64B7 - 30.002.

See Parrot Heads, Inc. v. Dep’t of Bus. and Prof’l Reg. , 741 So . 2d 1231 (Fla.

5th DCA 1999).

3 7 . R ule 64B7 - 30.002 provides , that the penalty for engaging in or

attempted to engage in sexual misconduct in the practice of massage therapy

i n violati o n of section 480.0485 , is a $2,500 fine and revocation of the

massage t herapist’s license.

3 8 . Rule 64B7 - 30.002 provides , that the penalty range for exposing a

client’s genitals, without his specific permissio n, i n violati o n of section

480.046(1)(i) , is a $1,000 fine to probation for the massage therapist.

3 9 . Rule 64B7 - 30.00 2(4) sets forth possible aggravating and mitigating

circumstances that might warrant deviation from the normal penalty . In this

case, no particularly weighty f actors were proven either way. Respondent has

no prior dis cipline before this violation. The fail ure to appropriately or

adequately drape the LEO and the sexual misconduct offense are very serious

breaches of the profession, but that is a factor taken into account in the disciplinary guideline. The disciplinary guideline penalt ies should apply here.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Department of Health, Board of Massage

Therapy enter a final order finding Respondent, M ingli Li , in violation of

section s 480.046(1 ) (i) and 480.0485, Florida Statutes, constituting grounds

for discipli ne under section 480.046(1)(p), imposing a fine of $3 , 5 00.00;

revoking her license to practice massage therapy; and assessing the cost of

investigating and prosecuting the Department’s case agai nst Respondent .

D ONE A ND E NTERED this 13th day of February , 2020 , in Tallahassee, Leon

County, Florida.

L YNNE A. Q UIMBY - P ENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florid a 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 13th day of February , 2020 .

C

OPIES F URNISHED :

Zachary Bell, Esquire

Department of Health

Prosecution Servi ces Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Michael S. Brown, Esquire

Law Office of Michael S. Brown, PLLC

150 North Orange Avenue , Suite 407

Orlando, Florida 32801

(eServed)

Christina Arzillo Shideler, Esquire

Florida Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Chad Wayne Dunn, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 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)

Louise Wilhite - St. Laurent, General Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Flori da 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 is sue the Final Order in this

case.