20-004350PL Department Of Health, Board Of Massage Therapy vs. Kurt Ehlers, L.M.T. Status: Closed Recommended Order on Thursday, April 8, 2021.

Summary: Petitioner failed to prove by clear and convincing evidence the violations alleged in the Administrative Complaint, and it should therefore be dismissed.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B OARD OF

M ASSAGE T HERAPY ,

Petitioner ,

Case No. 20 - 4350PL

vs.

K URT E HLERS , L.M.T. ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing in this cause was held in Tallahassee,

Florida, via Zoom video conference on February 19, 2021, before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

A PPEARA NCES

For Petitioner: Dannie L. Hart, Esquire

Alyssa Ward, Esquire

Department of Health ,

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Adrian Shawn Middleton, Esquire

Kevin Gransee

Middleton & Middleton, P.A.

1469 Market Street

Tallahassee, Florida 32312

S TATEMENT OF T HE I SSUE S

Whether Respondent engaged in sexual misconduct in the practice of

massage therapy , and, if so, what is the appropriate sanction.

P RELIMINARY S TATEMENT

On April 18, 2019, Petitioner, Department of Health (Department or

Petitioner ), issued an Administrative Complaint against Respondent, Kurt

Ehlers, a licensed massage therapist. The complaint charged Respondent

with sexual m isconduct in the practice of massage therapy, in violation of

section 480.0485 , Florida Statutes . According to the complaint, the event that

provides the basis for the instant dispute occurred on or about May 18, 2017.

This proceeding is governed by the la w in effect at the time of the commission

of the acts alleged to warrant discipline. See McCloskey v. DepÔt of Fin. Servs. ,

115 So. 3d 441 (Fla. 5th DCA 2013). Thus, references to statutes are to

Florida Statutes (201 6 ), unless otherwise noted.

On May 9, 2019, Respondent, through counsel, served an Election of

Rights in which he disputed material facts alleged in the Administrative

Complaint and requested an administrative hearing. On September 20, 2020,

the matter was referred to the Division of Administr ative Hearings (DOAH)

for a disputed fact hearing.

At the final hearing, the parties jointly offered testimony from

complainant A.H., and Petitioner also offered, via deposition, the testimony of

Faith Buhler, L.M.T. Respondent testified on his own behal f, and did not call

any additional witnesses to testify.

Joint Exhibits 1, 2.a., 2.b., and 2.c. were admitted into evidence.

PetitionerÔs Exhibits 1 and 2 were also admitted into evidence. RespondentÔs

Exhibit 4 was admitted into evidence. The parties fil ed a Joint P re - hearing

S tipulation that included eight admitted and undisputed facts. Findings of

Fact one through eight set forth those stipulations and agreements in

verbatim form.

A one - volume Transcript of the final hearing was filed with DOAH on

Marc h 10, 2021. On March 22, 2021, each party filed a proposed order, and

the same have been considered in the preparation of this Recommended

Order.

F INDINGS OF F ACT

1. Respondent Kurt Ehlers, L.M.T. is licensed to practice massage therapy

in the state of Fl orida, holding license number MA 67359.

2. Respondent was licensed to practice massage therapy in the state of

Florida at all times relevant to the Administrative Complaint underlying this

case.

3. RespondentÔs address of record on or during May 2017 was 1 3315 Secret

Lane, Hudson, Florida 34667.

4. Respondent performed massage therapy on Patient A.H. on May 18,

2017.

5. Placing hands under the draping on a female patientÔs breasts during a

massage constitutes sexual misconduct.

6. Massaging, grabbing and/or squeezing a female patientÔs breasts during

a massage constitutes sexual misconduct.

7. Touching and/or rolling a patientÔs nipples during a massage

constitutes sexual misconduct.

8. Placing hands under the draping on a female patientÔs breasts during a

m assage, massaging, grabbing and/or squeezing a female patientÔs breasts,

and/or touching and/or rolling a patientÔs nipples is outside the scope of

practice and/or generally accepted examination or treatment of a patient.

Factual Findings from Evidence Pre sented at Final Hearing

9. 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.

10. On or about April 18, 2018, Petitioner fil ed an Administrative

Complaint against Respondent. The material allegations against Respondent

are as follows:

On or about May 18, 2017, Respondent provided

massage therapy to Patient A.H. at ME Clermont,

LLC (ÑM a ssage EnvyÒ), located at 1500 Oakley

Seave r Drive, Clermont, Florida 34711.

During the above - reference massage, Respondent

positioned his hands inside the sheets covering

A.H.Ôs breasts and massaged, grabbed, and/or

squeezed A.H.Ôs breasts without A.H.Ôs consent.

Also, during the massage, Respon dent touched

A.H.Ôs nipples and/or rolled them between his

fingers without A.H.Ôs consent.

11. Respondent admits that he provided massage therapy to A.H. on or

about May 1 8 , 2017. Respondent, however, vehemently denies that he

touched A.H.Ôs breasts at an y time during the massage session at issue.

Respondent has no prior history of complaints lodged against him by the

Department.

12. In May 2017, the Massage Envy location where Respondent worked

recorded clients and workers while in public areas of the bui lding. There is no

evidence, however, that recording devices were located in the rooms where

individuals received massage therapy. So, with respect to the instant dispute,

A.H. and Respondent are the only witnesses to what actually transpired

during the ma ssage in question.

Recordings f rom Public Areas

13. Joint Exhibits 2.a., 2.b., and 2.c. are recordings of the Massage Envy

reception area and the hallway that workers and clients use to access

individual massage rooms. The video portion of each recording i s of

exceptional quality, whereas the audio portion is spotty, at best. Joint

Exhibits 2.a. and 2.b. are from the camera in the reception area, and each

recording contains both audio and video. Joint Exhibit 2.c. is video of the

hallway leading to the mass age rooms, and this exhibit does not contain

audio.

14. According to Joint Exhibit 2.a., A.H., on May 18, 2017, checked in with

the Massage Envy receptionist at approximately 8:20 p.m. As part of the

check - in process, the following exchange occurred betwee n A.H. and the

receptionist:

Receptionist: Do you want to check out now or

[inaudible]

A.H.: Yeah .

[Inaudible exchange]

A.H.: Can I get the foot scrub?

Receptionist: Okay, it comes to 30 total for the

half - hour and the foot scrub. Do you want to put a

tip on there?

A.H.: Please.

Receptionist: And how much do you want to leave?

A.H.: $15.00.

Receptionist: Do you want to set up your next

appointment?

A.H.: IÔll call.

15. At approximately 8:23 p.m. , the receptionist opened for A.H. the door

leading to the hallway. A.H. walked through the door and entered the

hallway that leads to the massage rooms. Joint Exhibit 2.c. does not contain

images of A.H. and Respondent walking down the hallway to the room where

A.H. received her massage from Respondent.

16 . At approximately 8:26 p.m., Respondent entered the reception area

and mention ed to the receptionist something pertaining to Ña scrub.Ò It is

reasonable to infer from the circumstances that RespondentÔs statement is

related to A.H.Ôs request for a foot sc rub. Beyond the word Ñscrub,Ò the

undersigned is unable to decipher, or otherwise discern, the exact words

stated due to the poor quality of the audio. Nevertheless, according to the

video, Respondent, less than a minute later, retrieved exfoliating scrub and

cream from a file cabinet in the reception area so that he could scrub A.H.Ôs

feet. After retrieving the cream and exfoliate, Respondent immediately left

the reception area and then apparently returned to continue A.H.Ôs massage.

17. Approximately two hours after A.H. left the reception area to

commence her massage session, Respondent, at approximately 10:38 p.m., re -

entered the reception area. The video shows that Respondent ha d an

electronic tablet, and appear ed to input information before handing the tablet

to the receptionist. Respondent and the receptionist ha d a brief conversation;

however, the particulars of the same are not discernable due to the poor

quality of the audio. At approximately 10:39 p.m., Respondent left the

reception area, and enter ed the hallway leading to the massage rooms.

18. According to Joint Exhibit 2.c., Respondent, at 10:38 p.m., is shown

walking away from the camera towards the door leading to the reception

area. Respondent enter ed the reception area where he stay ed f o r

app roximately one minute. At approximately 10:39 p.m., Joint Exhibit 2.c.

shows Respondent re - entering the hallway where he stop ped at what is likely

a water cooler, and fill ed a cup with water. After a brief pause, the video

shows Respondent walking down the hallway towards the m a ssage room. The

video shows Respondent giving the cup of water to A.H. while they were both

standing in the hallway. A.H. accept ed the cup of water from Respondent,

and they walk ed side - by - side, at a casual pace, away from the camera

towards the door leading to the reception area. As they walk ed towards the

door, both A.H. and Respondent are seen making, what appears to be, casual,

conversational type gestures with their hands. A.H. does not appear to make

eye contact with Respondent while walking down the hallway. Finally, the

video shows that A.H. paused briefly to allow Respondent to open the door so

that she could enter the reception area in order to exit the building.

19. Joint Exhibit 2.b. reflects that at approximately 10:40 p. m.,

Respondent pushed open for A.H. the door separating the hallway from the

reception area. As Respondent opened the door, A.H. is heard saying Ñthank

you,Ò to which Respondent replied , ÑyouÔre welcome.Ò A.H. then walk ed

directly to the main door and exit ed the building. Before A.H. exit ed the

building, the receptionist told A.H. Ñhave a good night,Ò to which A.H. replied ,

Ñyou too.Ò A.H. d id not make eye contact with the receptionist while

transitioning through the lobby to the door to exit the building. While

walking through the lobby, A.H. does not appear on the video to walk at a

pace appreciably different from when she arrived for her massage.

Feeling Uncomfortable

20. A.H. had received several (at least six or seven according to

Respondent) massages f rom Respondent prior to her session with him on

May 1 8 , 2017. A.H. testified that her child was born in August of 2016, and

the massage on May 1 8 , 2017, was her first with Respondent since the birth

of her child.

21. A.H. testified that on May 1 8 , 2017, sh e made an appointment for that

evening to receive a massage from Respondent, and that her appointment

was for the last slot available for that date. On direct examination , the

following testimony was offered:

Ms. Hart: When you made your appointment, do

yo u remember how long you made it for?

A.H.: No, maÔam, I do not.

Ms. Hart: Was it for more than half an hour?

A.H.: Yes. It would have been anywhere from an

hour to an hour and a half. I just donÔt remember

the time frame.

22. Respondent testified that his massage sessions with A.H. usually

lasted 60 minutes, but the session on May 18, 2017, was scheduled for

90 minutes. While A.H. and Respondent both testified that the massage

session was scheduled for 90 minutes, the receptionist, as captured on Joint

Exhibit 2.a., is clearly heard saying Ñ Okay, it comes to 30 total for the half -

hour and the foot scrub. Ò

23. A.H. testified that Respondent escorted her from the front desk area to

the massage room. As previously noted, Joint Exhibit 2.c. does not capture

the period when A.H. left the reception area and went to the massage room.

Nevertheless, A.H. testified that before the massage session started,

Respondent made her feel uncomfortable when he complimented her on the

apparent fitness level of her post - pregn ancy body. A.H. offered the following

testimony in regards to this issue:

Ms. Hart: In your complaint you stated that

Mr. Ehlers said several things to you that made

you feel uncomfortable. Can you remember any of

the things that he said?

A.H.: I just rem ember him stating that I looked

really good, and that I reminded him of this lady on

this home improvement show È . And I thought it

was odd because heÔs never talked or complimented

me like that. And the way he was complimenting, it

was kind of flirtatiou s. It just made me

uncomfortable because our normal talk is how are

you doing, do you have any issues that I need to

know about before the massage. ItÔs usually very

professional, and this was different. It made me

uncomfortable.

24. Respondent denies tha t he made comments to A.H. about her body or

appearance. According to Respondent, prior to the massage he went over his

standard questions with A.H., which included the fact that she had given

birth, and then excused himself from the room so that A.H. coul d disrobe.

25. According to A.H., once she disrobed, the following sequence of events

happened:

A.H.: He left the room so I could disrobe to get on

the table underneath the covers like you normally

do in massage.

Ms. Hart: Okay. And what happened after th at?

A.H.: Then he knocked on the door, obviously,

making sure that I was under the covers. I advised

him he could come in. He came in and the massage

started.

Ms. Hart: Were you face up or face down when the

massage started?

A.H.: I was face down.

The Court: Did you say down or up?

A.H.: Face down, face down. I was lying on my

stomach.

26. Respondent testified that Ñ[t]his was [A.H.Ôs] first postnatal [massage],

so she was going to be lying face down,Ò so he Ñopened up with [a] massage on

[her] back.Ò

27. A.H. testified that the following happened once Respondent started to

massage her body:

Ms. Hart: What was the first disconcerting thing to

happen during the massage?

A.H.: I remember he - - it started out normal. I was

still lying on my back. And he was just breathing

really heavy. Like, I donÔt really know how to

describe it other than in a sexual manner. It was

weird. And I thought this was - - it caught me off

guard because IÔve gone to him before. IÔve never

felt uncomfortable. HeÔs never made me feel

uncomfortable. And then as I was lying on my back ,

my palm is - - like, my hands are down and my

palm is up, facing up on the table. And I kept

feeling this, like, soft, like, fleshy feeling on my

hand, brush up against my hand. And I was - - I

was v ery uncomfortable.

Ms. Hart: Did you look to see what was brushing

up against your hand?

A.H.: No, maÔam. I froze.

Ms. Hart: Did you - - based on your experience as

an adult woman with children, did it remind you of

anything when you felt it?

A.H.: It reminded me of like the head of a penis, to

be honest.

Ms. Hart: Okay. Did you take any action with

regard to your uncomfortable feelings at this point?

A.H.: No.

28. The Administrative Complaint does not charge Respondent with any

violations related to A.H.Ôs suggestion that Respondent caused the head of his

penis to touch her hand. This portion of A.H.Ôs testimony is included herein

for the limited purpose of providing context for A.H.Ôs testimony, as discussed

below, that after the massage she dressed herself much faster than usual so

that she could expeditiously leave the building.

29. Respondent testified that during the massage, A.H.Ôs hands were

under a sheet and blanket that he used to cover A.H. during her massage. As

for his breathing, Responden t admits that he was breathing heavily because

he had just completed four consecutive deep tissue massages, which are Ña

little more strenuous,Ò and he was suffering from Ña slight head cold.Ò

Respondent denies that he removed his penis from his pants and pressed it

against A.H.Ôs hand during the massage. Respondent explained that while

performing the massage on A.H . , he had holstered on his hip a smooth -

surfaced plastic bottle which contained lotion, and it is possible that the

plastic bottle brushed again st A.H.Ôs hand.

The Breasts

30. A.H. offered the following testimony with respect to her allegations

that Respondent fondled her breasts:

A.H.: I remember the next thing that made me

uncomfortable is when I had to turn over. They

typically pull up the shee ts. ItÔs angled upward, but

kind of low so that you can turn because you still

have your privacy, because a lot of females are

topless. So I just remember this time he had it

exceptionally high to where you - - I wasnÔt really

that covered. And I turned ar ound as quickly as I

could, and I grabbed the covers to kind of put them

back on me because it - - it was weird. HeÔs usually

kept them really low on an angle so that you canÔt

see - - you know, so IÔm not exposed as IÔm turning

around. But this time it wa s really high. So, yeah.

Ms. Hart: What did you do?

A.H.: Like I said, I just turned around as quickly as

I could. I grabbed the covers from him and covered

myself.

Ms. Hart: Did you say anything to him?

A.H.: No.

Ms. Hart: Okay. And then what happene d?

A.H.: And then the massage continued as normal.

The heavy breathing was still constant throughout.

And then the next thing that obviously was like,

okay, this is why red flags are going in my head

and I feel uncomfortable. And towards the end he

was pu tting his hands down underneath the cover

to like I guess get the spine to your torso and

massage, which I had had before. However, when

he could come up, a lot of times massage therapists,

and even him, go wide as to not graze, you know,

your breast area as a woman. His thumbs were

grazing the sides of my breasts, and this happened

a couple times. And then he actually started to put

his hand on my breasts and twirled. Like, take my

nipples in between his fingers and like twirl them.

And he kept saying, IÔm sorry, IÔm sorry. But he

kept doing it. So, yes.

Ms. Hart: And what happened after he said that he

was sorry?

A.H.: Nothing. He - - nothing. He didnÔt say

anything after that. I didnÔt acknowledge his

apology. It was nothing.

Ms. Hart: Did the massage continue?

A.H.: I think it continued for like - - I think he

massaged a couple more times, my breasts, and

then he stopped the massage.

As previously noted, Respondent vehemently denies that he touched A.H.Ôs

breasts at any time during the massage sessio n at issue.

Post - Massage Actions

31. A.H. offered the following testimony regarding the alleged events that

occurred following the massage:

Ms. Hart : Okay. After he massaged your breasts

and the massage was over, what happened after

that?

A.H .: I remember he said - - he said something like,

okay. And I opened my eyes and he was just -- he

was standing to the side of me. And usually heÔs

like - - he goes, okay, well, IÔll leave so you can

dress. Do you want water? And he just stood there

for a couple of mi nutes. And then he looked at me.

And he was - - and I - - he looked at me and he - - I

donÔt remember - - he goes, well, what are - - he

goes, what are you thinking right now, or what are

you thinking. And I looked at him. And I said, I just

- - I think I need to go, I want to go home. And he

then left the room.

Ms. Hart: And what did you do after he left the

room?

A.H .: I got dressed as quickly as I could so that I

could leave.

Ms. Hart : How long does it usually take you to get

dressed after a massage?

A.H .: I donÔt know. A couple of minutes. I mean, I

take my time usually when IÔm getting dressed, so.

Ms. Hart : And how long did it take you to get

dressed this time?

A.H .: I wouldnÔt know the time frame, but I would

assume faster than normal.

Ms. Har t : Okay. And after you got dressed, what

happened?

A.H .: I didnÔt see anybody. I really for - - until I got

to the lobby, I thought I was the only one in the

building with him, so I just tried to leave as quickly

as I could.

Ms. Hart : Did you tell anyon e about the incident?

A.H . : I went home and told my husband.

Ms. Hart : Anyone else?

A.H .: No, not that night. It was late. I woke up the

next morning and called Clermont P.D.

32. In explaining why she did not end the massage once she started

feeling un easy about Respondent and his alleged actions, A.H. testified as

follows:

A.H.: Because I had gone to him so many times in

the past when I was pregnant, and I had felt

comfortable with him before. So it was kind of one

of those denial things where like, ah, this is in your

head maybe, or youÔre - - you know, youÔre just - -

youÔre just in denial that itÔs anything more than

what it is.

33. In piecing together the images and time stamps from the Joint

Exhibits, it is reasonable to conclude that it took A .H. less than two minutes

to put on her undergarment(s), flip - flops, chino style pants, and tank - top that

she wore to Massage Envy.

C ONCLUSIONS OF L AW

34. DOAH has jurisdiction over the parties and subject matter of this

proceeding. §§ 480.046(4), 120.569 , and 120.57(1), Fla. Stat. (2020) .

35. Petitioner has authority to investigate and file administrative

complaints charging violations of the laws governing licensed massage

therapists. § 456.073, Fla. Stat.

36. Section 480.046(1)(p) provides that:

The fol lowing 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 rules adopted pursuant thereto.

37. Respondent is charged with engagin g in sexual misconduct in the

practice of massage therapy, in violation of section 480.0485, which provides:

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 s cope of generally accepted

examination or treatment of the patient. Sexual

misconduct in the practice of massage therapy is

prohibited.

38. Florida Administrative Code Rule 64B7 - 26.010, entitled ÑSexual

Activity Prohibited,Ò provides, in part, that:

(1) S exual 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

eng age in sexual activity with any client.

(4) As used in this rule, Ñsexual activityÒ means 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, masturbation, or

anal intercourse. For purposes of this subsection,

masturbation means the manipulation of any body

tissue with the intent to cause sexual arousal. As

used herein, sex ual activity can involve the use of

any device or object and is not dependent on

whether penetration, orgasm, or ejaculation has

occurred. 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.

39. The Department bears the burden of proving the specific allegations

that support the charges alleged in the Administrative Complaint by clear

and convincing evidence. DepÔt of Banking & Fin., Div. of Sec. & I nv. Prot. v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987); Fox v. DepÔt of Health , 994 So. 2d 416 (Fla. 1st DCA 2008);

Pou v. DepÔt of Ins. & Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998).

40. Clear and c onvincing evidence Ñrequires more proof than a

Ópreponderance of the evidenceÔ but less than Óbeyond and to the exclusion of a

reasonable doubt.ÔÒ In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). The clear

and convincing evidence standard of proof:

[E] ntai ls both a qualitative and quantitative

standard. The evidence must be credible; the

memories of the witnesses must be clear and

without confusion; and the sum total of the

evidence must be of sufficient weight to convince

the trier of fact without hesitanc y.

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

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 established.

In re Davey , 645 So. 2d 398, 404 (Fla . 1994)(quoting, with approval,

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re

Henson , 913 So. 2d 579, 590 (Fla. 2005). ÑAlthough this standard of proof may

be met where the evidence is in conflict, it seems to preclude evide nce that is

ambiguous.Ò Westinghouse Electric Corp. v. Shuler Bros., Inc. , 590 So. 2d 986,

989 (Fla. 1st DCA 1991).

41. A proceeding to suspend, revoke, or impose other discipline upon a

license is penal in nature. State ex rel. Vining v. Fla. Real Estate CommÔn ,

281 So. 2d 487, 491 (Fla. 1973). The provisions of law upon which this

disciplinary action has been brought are penal in nature, and must be strictly

construed, with any ambiguity construed against Petitioner. Penal statutes

must be construed in te rms of their literal meaning and words used by the

Legislature may not be expanded to broaden the application of such statutes.

Elmariah v. DepÔt of ProfÔl Reg., Bd. o f Med. , 574 So. 2d 164, 165 (Fla. 1st

DCA 1990); see also Cadet v. DepÔt of Health , 255 S o. 3d 386, 388 (Fla. 4th

DCA 2018).

42. A hearing involving disputed issues of material fact under section

120.57(1) is a de novo hearing, designed to formulate, rather than review,

agency action. § 120.57(1)(k), Fla. Stat.; Moore v. DepÔt of HRS , 596 So. 2d

759, 761 (Fla. 1st DCA 1992).

43. The allegations of fact set forth in the Administrative Complaint are

the grounds upon which this proceeding is predicated. Trevisani v. DepÔt of

Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v. D epÔt of

Ins ., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the scope of this

proceeding is properly restricted to those matters as framed by Petitioner in

the Administrative Complaint . M.H. v. DepÔt of Child. & Fam. Servs ., 977 So.

2d 755, 763 (Fla. 2d DCA 2008).

44. Both A.H. and Respondent testified that her massage session with

Respondent was scheduled for an hour to an hour and a half. For reasons not

apparent from the evidence, the session lasted approximately two hours.

While the 30 minute differe nce in the duration of the massage session, as

testified to by A.H. and Respondent, is not in itself a point of concern, the

extended duration of the session becomes a point of significant concern when

one considers the recording of A.H.Ôs initial interact ion with the receptionist ,

where the receptionist clearly states that A.H.Ôs massage session was

reserved for only 30 minutes.

45. Next, A.H. testified that once the massage session ended, she, because

of RespondentÔs alleged actions prior to and during th e massage, Ñgot dressed

as quickly as [she] could,Ò and Ñtried to leave as quickly as [she] could.Ò This

testimony by A.H. suggests a sense of urgency on her part to extricate herself

from RespondentÔs presence. However, the post - massage recordings of A.H.

contain images and audio that contradict her testimony. The post - massage

video clearly shows A.H. walking down the hallway next to Respondent at a

pace that belies her claim of urgency. Additionally, the post - massage video

shows A.H. pausing briefly to al low Respondent to push open the door for her,

and once he d id so, A.H. then politely t old Respondent , Ñthank you.Ò While

courtesy and manners are preferred, these social niceties seem out of place

when displayed by someone who, minutes earlier, had what sh e thought to be

a penis pressed against her hand and her breasts fondled several times.

46. Also, A.H. testified that at one point during the massage, she engaged

in the affirmative act of grabbing the sheet from Respondent so that she

could cover herself because Respondent was holding the sheet at an angle

that did not maximize her desire for concealment. It is difficult to accept this

testimony as credible when the same is juxtaposed to A.H.Ôs testimony that

she believed Respondent touched her with his ex posed penis while she was

lying on her back, but yet she failed to take any action (e.g. moving her head)

related to confirming or disproving her suspicion.

47. Finally, A.H. offered confusing testimony regarding the position of her

body at different times during the massage, and RespondentÔs actions related

thereto. A.H. testified that when the massage started, she was Ñface down È

lying on [her] stomach.Ò This is consistent with Respondent Ôs testimony that

A.H. was lying on her stomach when he started the massage. However, w hen

asked about the first disconcerting thing that happened during the massage,

A.H. testified that the massage Ñstarted out normalÒ and she Ñwas still lying

on [her] backÒ when she thought that Respondent pressed his exposed penis

agai nst her hand. This testimony causes uncertainty in the mind of the

undersigned, because by testifying that she Ñwas still on her backÒ at this

point in the massage suggests that she was initially Ñon her backÒ when the

massage started. A.H.Ôs ambiguous tes timony about how the massage began

leads to confusion when attempting to understand other events that may

have occurred during the massage.

48. After the alleged penis episode, A.H. testified that the next thing that

made her uncomfortable was Ñwhen [she] had to turn over,Ò and Respondent

allegedly had the sheets Ñexceptionally high to where [she] wasnÔt really that

covered.Ò After A.H. completed the turn, it was at some point soon thereafter

when Respondent allegedly grazed the sides of her breasts with hi s thumbs,

and touched her breasts and twirled her nipples. After reviewing the

transcript of A.H.Ôs testimony several times, the undersigned was unable to

develop a firm belief or conviction with respect to the critical issue of how

A.H.Ôs body was positio ned when the alleged offending acts occurred. It would

seem likely that A.H. would have been on her back when Respondent

allegedly groped her breasts, but the myriad ambiguities in her testimony

make it impossible to reach this conclusion based on a firm b elief or

conviction.

49. The factual inconsistencies in the evidence, when collectively

considered, have caused hesitancy in the mind of the undersigned as to the

veracity of the DepartmentÔs allegations against Respondent. Accordingly,

the undersigned is unable to find that the Department proved by clear and

convincing evidence that Respondent engaged in sexual misconduct in the

practice of massage therapy, in violation of sections 480.046(1)(p) and

480.0485, or rule 64B7 - 26.010. 1

R ECOMMENDATION

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

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

enter a final order dismissing the Administrative Complaint against

Respondent, Kurt Ehlers, L.M.T.

1 On January 22, 2021, Respondent, through counsel, filed a ÑMotion for AttorneyÔs Fees and

Sanctions Against Petitioner for Raising Unsupported Claims or Defenses Pursuant to

§ 57.105, Fla. Stat. (2020).Ò Should there be a dispute regarding Respon dentÔs entitlement to

recovery under section 57.105, Florida Statutes, the matter may, as appropriate, be referred

to DOAH for resolution.

D ONE A ND E NTERED this 8 th day of April , 2021, in Tallahassee, Leon

County, Florida.

S

L INZIE F. B OGAN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative He arings

this 8 th day of April , 2021 .

C OPIES F URNISHED :

Dannie L. Hart, Esquire Adrian Shawn Middleton, Esquire

Department of Health Middleton & Middleton, P.A.

Prosecution Services Unit 1469 Market S treet

4052 Bald Cypress Way , Bin C - 65 Tallahassee, Florida 32312

Tallahassee, Florida 32399

Kevin Gransee

Alyssa Ward, Esquire 1437 Market Street

Department of Health Tallahassee, Florida 32312 - 1725

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65 Kama Monroe, JD, Executive Director

Tallahassee, Florida 32399 Board of Massage Therapy

Department of Health

Louise St. Laurent, General Counsel 4052 Bald Cypress Way , Bin C - 06

Department of Health Tallahassee, Florida 32399 - 3257

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

N OTI CE 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 issue the Final Order in thi s

case.