20-004755PL Department Of Health, Board Of Massage Therapy vs. Kenneth James Dipersio, L.M.T. Status: Closed Recommended Order on Wednesday, May 26, 2021.

Summary: Department failed to prove by clear and convincing evidence that Respondent engaged in sexual misconduct. Dismissal of Administrative Complaints recommended.

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 s. 20 - 4754PL

vs. 20 - 4755PL

K ENNETH J AMES D IPERSIO , L.M.T. ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing was held in this case by Zoom Video Conference in

Tallahassee, Florida, on March 4 and 5 , 2021, before Brian A. Newman, an

Administrative Law Judge of the Division of Administr ative Hearings

(DOAH).

A PPEARANCES

For Petitioner: Ann L. Prescott, Esquire

Julisa Renaud, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

For Respondent: R ichard A. Greenberg, Esquire

Rumberger Kirk & Caldwell

101 North Monroe Street , Suite 120

Tallahassee, Florida 32301

S TATEMENT OF T HE I SSUE S

The issues in th ese consolidated case s are whether Respondent committed

sexual misconduct as ch arged in the Administrative Complaint s , and, if so,

what penalty should be imposed.

P RELIMINARY S TATEMENT

On August 14, 2020, the Department of Health (Department) filed two

Administrative Complaint s before the Board of Massage Therapy (Board)

against Kenn eth James DiPersio, L.M.T. (Respondent). In DOAH C ase

No. 20 - 4754PL , the Department charged Respondent with sexual misconduct

while treating a client identified as M.S. , in violation of sections 4 80.046(1)(p)

and 4 80.0485, Florida Statutes , and Florida Adm inistrative Code Rule 64B7 -

2 6.010(1) and (3). 1 In DOAH C ase No. 20 - 4755PL , the Department charged

Respondent with committing sexual misconduct while treating a client

identified as S.B. , in violation of the same provisions. Respondent timely filed

a reques t for a hearing involving disputed issues of material fact in both

cases.

On October 23, 2020, the Department transmitted the Administrative

Complaint s to DOAH for assignment of an administrative law judge to

conduct the requested hearing s . On November 9 , 2020, DOAH C ase

No s . 20 - 475 4 PL and 20 - 4755PL were consolidated for all purposes .

The final hearing scheduled for January 13 , 202 1 , was continued at the

request of both parties for good cause and was rescheduled to be heard via

Zoom V ideo C onference on March 4 and 5, 2021.

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

which they identified their proposed witnesses and exhibits, set forth their

objections to the other partyÔs proposed exhibits, and agreed to several

1 The Administrative Complaints are based on events that occurred in 2017 and 2018. All

references herein to statutes an d rules are to the version s in effect at the time the events at

issue occurred.

state ments of fact and law. The partiesÔ agreed facts have been incorporated

in the Findings of Fact below to the extent relevant.

At the hearing, the parties offered Joint Exhibit 1 , which was admitted.

T he Department presented the live testimony of S.B., M.S ., Maxine Satrape,

and Jasmin Driessen, and the testimony of expert witness Faith Bueller ,

L.M.T. , by deposition transcript . Department Exhibits 1 through 4, and 7

were admitted. R espondent presented the testimony of expert witness Donald

C. Kelley, L.M.T. , and testified on his own behalf. RespondentÔs Exhibits 1

and 2 were admitted.

The three - volume Transcript of the hearing was filed on March 29, 2021 .

The deadline to file p roposed r ecommended o rders (PROs) was extended to

April 26, 2021 , at the request of Respondent. Both parties timely filed PROs ,

which have been considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

1. The Department is charged with regulating the practice of massage

therapy pursuant to c hapter s 456 and 480, Fl orid a Statutes.

2. At all times material to this case, Respondent was a licensed massage

therapist in Florida, having been issued license number MA 11149.

Respondent has practiced massage therapy for approximately 30 years.

Client M.S. , DOAH Case No. 20 - 4754PL

3 . On January 10, 2018, M.S. completed her initial client intake form with

Respondent which contained several sections . M.S. wrote t hat she suffered

from post - concussion syndrome. According to M.S., she was diagnosed with

post - concussion syndrome and mild traumatic brain injury after a log fell on

her head in August of 2017. Under the heading Ñconcerns , Ò M.S. wrote: ÑIÔm

going crazy and losing memory completely Ð eyes burning.Ò Under Ñrecent

changes , Ò M.S. wrote: Ñloss of memory, confusion, irate , irritabil ity,

uncontrollable anxiety, depression, extreme vertigo, unable to focus or

comprehend, extreme nervousness and fee ling out of control emotions. Ò

4 . M.S. had four massage sessions with Respondent on January 10, 19, 24 ,

and 31, 2018 . M.S. removed her shoe s but was otherwise fully clothed during

all four massage sessions.

5 . The Department alleges that the sexual activity occurred during M.S.Ôs

fourth and final session on January 31, 2018. Specifically, the Department

alleges that Respondent touched M.S.Ô s labia with his fingers, rested his

fingers on M.S.Ôs vagina, and cupped her vagina. 2

6 . During her testimony, M.S. demonstrated how Respondent touched her

vagina. Using her own hand to demonstrate, M.S. placed her hand above her

vagina with her fingers pointed in a horizontal position. M.S. did not indicate

that Respondent ÑcuppedÒ her vagina during this demonstration.

7 . Respondent denies that he touched M.S.Ôs labia with his fingers , rested

his fingers on her vagina , or cupped her vagina.

8 . Respond entÔs testimony as to the touching that occurred during the

January 31, 2018 , massage session was credible and more precise than th at

of M.S. RespondentÔs testimony is accepted over the testimony of M.S. where

it conflicts.

9 . Dr. George Rozelle is the ph ysician who owns the facility where

Respondent performed massage therapy on M.S. The Department offered

hearsay testimony from a witness who heard Dr. Rozelle say Ñnot againÒ

when M.S. told him that Respondent had touched her inappropriately during

the mas sage session that occurred that day. The inference suggested by the

Department is that Respondent had been previously accused of

inappropriately touching other massage therapy clients on other occasions.

2 The Department also states in its PRO that Respondent touched M.S.Ôs breasts. The

Administrative Complaint in DOAH Case No. 20 - 4754PL does not, however, identify the

touchin g of M.S.Ôs breasts as a sexual activity that occurred when Respondent massaged her,

and therefore cannot serve as a basis for disciplinary action in this case. Trevisani v. DepÔt of

Health , 908 So. 2d 1108 (Fla. 1st DCA 2005) ; Delk v. DepÔt of ProfÔl Reg . , 595 So. 2d 966, 967

(Fla. 5th DCA 1992 ).

The testimony is hearsay for which the Department fa iled to establish an

exception, and is unreliable because D r. Rozelle did not testify to explain

what he meant when he said Ñnot again.Ò E ven if Dr. Rozelle said Ñnot again , Ò

because there were one or more prior similar complaints about Responden t,

such un proven allegations cannot be relied upon here to establish that

Respondent had a propensity to commit sexual misconduct on massage

therapy clients. § 120.57(1)( d ), Fla. Stat. For all of these reasons, the Ñnot

againÒ statement is not accepte d as evidence a gainst Respondent .

10. The Department failed to prove that Respondent engaged M . S . in

sexual activity , or that Respondent touched M.S. in a manner that was

intended to, or likely to, erotically stimulate himself or M.S.

Client S.B. , DOAH Case No. 20 - 475 5 P L

1 1 . S.B. presented to Respondent for massage therapy for the first time on

August 15, 2017. S.B. completed a client information form indicating that the

reason for her visit was Ñlow energy, lost, depressed.Ò S.B. wrote that she

experienced these conditi ons for four years, that they followed an undisclosed

accident, trauma , or illness , and that they were aggravated by Ñlife.Ò

1 2 . S.B. was seen by Respondent for massage therapy on nine different

occasions on August 17 and 20, and October 10 and 19, 2017; J anuary 16, 23,

and 30, and February 6 and 15, 2018. Respondent was fully clothed during all

the massage sessions with Respondent.

1 3 . S.B. testified that Respondent told her that he ÑlovedÒ her and that he

was Ñnever going to leaveÒ her during several visi ts , but she could not identify

when Respondent made th ose statement s .

1 4 . S.B also testified that Respondent told her that she may experience an

orgasm when he applied pressure to her groin during a session, but she could

not recall when that happened. S. B. testified that she returned to see

Respondent for message therapy after he touched her groin and allegedly

made the ÑorgasmÒ comment, but that she had another female massage

therapist with her during the session.

1 5 . Additionally, S.B. testified that R espondent put his hands over her

breasts during more than one session, but she could not say how often or

when this occurred. S.B. denied that Respondent ever ÑgraspedÒ her breasts

and admitted that she never complained to Respondent about allegedly

touchi ng her breasts.

1 6 . Respondent denied that he told S.B. that he ÑlovedÒ her, that he was

Ñnever going to leave Ò her , or that she might experience an Ñorgasm.Ò

According to Respondent, he touched S.B.Ôs ad ductor muscles and pubic

bone Ð not her vagina Ð to help reduce her complaint of hip pain during her

third visit on October 10, 2017.

1 7 . S.B.Ôs testimony was imprecise and the facts to which she testified

were not distinctly remembered. Respondent Ô s testimony is accepted over

S.B.Ôs testimony where it conflic ts.

18. The Department failed to prove that Respondent engaged S.B. in

sexual activity or that Respondent touched S.B. in a manner that was

intended to, or likely to, erotically stimulate himself or S . B.

C ONCLUSIONS OF L AW

1 9 . A pr o c ee d i ng to s u sp en d , r e v o k e, or i m p o s e other d i sc i p li ne u p on a

li c en s e i s p en a l i n n a t u r e. S t at e e x r el . Vi ni ng v. F la . R ea l Es t a te C omm Ô n , 28 1

S o . 2 d 4 87 , 4 9 1 ( F la . 19 7 3 ) . T he D e p a r tment the r e f o r e b e a r s the b u rd en of

pr o vi ng the c h a r g es agai n s t R e sp on d ent b y c l e a r a nd c on vi n ci n g e vi d en c e.

F ox v. D epÔ t of He a l th , 99 4 So. 2 d 41 6 , 4 1 8 ( Fla . 1 s t D C A 2 008 ) (ci t i ng D epÔ t of

Ba n k i ng & F i n. v. O s b o r ne S t er n & C o . , 67 0 So. 2 d 93 2 ( Fl a . 1 9 9 6 )) .

20 . A s s t a ted b y the F l o r i d a Su pr eme C ou r t:

C l e a r a nd c on vi n c i ng e vi d en c e r e q u i r es th a t the

e v i d en c e mu s t b e f o u nd to b e c r e d ibl e; the f a c ts

to w h i c h the wi tne ss es te s t i f y mu s t b e d i s t i n c t l y

r emem b e r e d ; the te s t i mony mu s t b e pr e c i s e a nd

e x p li c i t a nd the w i tne ss es mu s t b e la ck i ng in

c on f u s i on a s to the f a c ts i n i ss ue. T he e vi d en c e

mu s t b e of s u c h w e ig ht th a t i t pr o d u c e s i n the

m i nd of the t r i er of f a c t a f i r m b e li ef or

c on vi c t i on, wi thout he s i t a n c y , a s to the t r uth of the

a l l e ga t i ons s ou g ht to b e e s t a b l i s he d .

I n r e He n s on , 91 3 So. 2 d 57 9 , 5 9 0 ( F la . 2 0 0 5 ) ( q uot i ng S l omo w i tz v. W al k er ,

49 2 S o . 2 d 7 97 , 8 0 0 ( F la . 4 th D C A 1 983 )) . T h i s b u rd en of pr oof m a y b e met

w he r e the e vi d en c e i s i n c on f li c t; ho w e v e r , Ñ i t s eems to pr e c l u d e e vi d en c e t h a t

i s a m b ig uou s . Ò W es t i n g hou s e El e c . C o rp . v. S hu le r Br o s . , 59 0 So. 2 d 98 6 , 9 88

( Fla . 1 s t D C A 1 9 91 ) .

21 . D i sc i p li n a r y s t a t u tes a nd r u l es Ñmu s t b e c on s t r ued s t r i c t ly , i n f av or

of the one ag a i n s t w hom the p en al ty w ou l d b e i m p o s e d . Ò G riff i s v. F is h &

W il d li f e C on s e r . C o m m Ô n , 5 7 So. 3 d 9 2 9 , 9 3 1 ( Fl a . 1 s t D C A 20 1 1 ) ; M un c h v.

D epÔ t of P r o fÔ l R e g. , D i v. of R ea l Es t ate , 59 2 So. 2 d 1 1 36 , 1 1 4 3 ( F l a . 1 s t D C A

19 9 2 ) ; Mc C l ung v. Cr i m. Ju s t. S td s . & T rai n i ng C omm Ô n , 45 8 S o . 2 d 8 8 7,

88 8 ( F la . 5 th D C A 1 9 84 ) .

2 2 . A licensed massage therapist can be disciplined in Florida for

violating any provision of c hapter 480, or rules adopted pursuant t hereto.

§ 480.046(1)(p), Fla. Stat. Here, t he Department charged Respondent with

committing sexual misconduct in violation of section 480.0485 and rule

64B7 - 26.010 .

2 3 . Section 480.0485 prohibits massage therapists from engaging or

attempting to engage the massage therapy client in sexual activity:

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 patie nt. Sexual

misconduct in the practice of massage therapy is

prohibited.

2 4 . Rule 64B7 - 26.010 reiterates the statuteÔs prohibition against sexual

activity during massage therapy and defines Ð in detail Ð what constitutes

Ñsexual activityÒ in this context:

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

massage establishment is absolutely prohibited.

(2) No massage establishment owner shall engage

in or permit any person or persons to engage in

sexual activity in such owner's massage

establishment or use su ch establishment to make

arrangements to engage in sexual activity in any

other place.

(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 a ctivity 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 stimulatio n 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, sexual activity ca n 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

pr acticing colonic irrigation.

2 5 . The evidence here falls short of establishing that Respondent engaged

in Ñ sexual activity Ò with M.S. or S.B. , as the term is defined by rule. This is

primarily because the testimony from M.S. and S.B. was imprecise and

lac ked the certainty that the clear and convincing burden of proof requires .

But even so, most of the touching Respondent was accused of performing Ð on

clients who remained fully clothed during all sessions Ð does not constitute

sexual activity , because the touc hing was not a sexual act enumerated in the

rule or touching that was otherwise intended to erotically stimulate.

26 . Based upon the weight of the credible evidence , t he Department failed

to prove by clear and convincing evidence that Respondent engaged S.B. or

M.S. in sexual activity while performing massage therapy on them.

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 dismis sing the Administrative Complaints.

D ONE A ND E NTERED this 26th day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

B RIAN A. N EWMAN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of May , 2021 .

C OPIES F URNISHED :

Mary A. Wessling, Esquire R ichard A. Greenberg, Esquire

Department of Health Rumberger Kirk & Caldwell

Prosecution Services Unit 101 North Monroe Street , Suite 120

4052 Bald Cypress Way , Bin C - 65 Tallahassee, Florida 32301

Tallahassee, Florida 32399

Julis a Renaud, Esquire Ann L. Prescott, Esquire

Florida Department of Health Department of Health

4052 Bald Cypress Way , Bin C - 65 Prosecution Services Unit

Tallahassee, Florida 32399 4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

Kama Monroe, JD, Executive Director

Board of Massage Therapy L ouise St. Laurent, General Counsel

Department of Health Department of Health

4052 Bald Cypress Way , Bin C - 06 4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3257 Tallahassee, Florida 32399 - 3265

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 Re commended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.