20-005181PL Department Of Health, Board Of Massage Therapy vs. Devin Triplett, L.M.T. Status: Closed Recommended Order on Tuesday, March 2, 2021.

Summary: Petitioner failed to prove that Respondent failed to properly drape a client. Recommendation is to dismiss the Administrative Complaint.

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 - 518 1PL

vs.

D EVIN T RIPLETT , L.M.T. ,

Respondent .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge Brian A. Newman of the

Division of Administrative Hearings (ÑDOAHÒ) for final hearing by Zoom

conference on January 25, 2021.

A PPEARANCES

For Petitioner: Alyssa Ward, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

For Respondent: Devin K. Triplett , pro se

264 Tavestock Loop

Winter Springs, Florida 32708

S TATEMENT OF T HE I SSUE S

T he issues in this case are whether Respondent failed to appropriately

drape a client as charged in the Administrative Complaint; and, if so, what

penalty should be imposed.

P RELIMINARY S TATEMENT

On June 21, 2019, the Department of Health (Department) fil ed an

Administrative Complaint before the Board of M a ssage Therapy (Board)

against Devin Triplett, L.M.T. (Respondent). Respondent was charged with

fail ing to appropriately drape a client in violation of Florida Administrative

Code Rule 64B7 - 30.001(5) (the ÑruleÒ) , and violating section 480.046(1)(i),

Florida Statutes (the ÑstatuteÒ) , through a violation of th e rule. 1 Specifically,

the Department alleges that ÑRespondent undraped one - half of A.M.Ôs body

from her shoulder to her toes, exposing A.M.Ôs buttock s.Ò The Department did

not charge Respondent with sexual misconduct or any other wrongful act

other than Ñexposing A.M.Ôs buttocksÒ when the sheet was removed from half

of her body . Respondent timely filed a n Election of Rights disputing the

material alleg ations of the Administrative Complaint.

On November 30, 2020, the Department transmitted the Administrative

Complaint and Election of Rights to DOAH for assignment of an

administrative law judge to conduct the requested hearing.

The final hearing was held on January 2 5 , 202 1 , by Zoom conference as

scheduled.

At the hearing, the Department presented the live testimony of massage

client A.M. The Department also offered the deposition testimony of Faith

Buhler, L.M.T., an expert in m a ssage therapy. The DepartmentÔs E xhibits 1,

3, and 4 through 6 were admitted. Respondent presented the live testimony

of Christina Delk and Andrew Swart. RespondentÔs E xhibit 1 was admitted.

1 All references to statutes and rules are to the 2018 version unless otherwise indicated.

Prior to the hearing, the Department filed a motion in limine seeking to

prevent Ms . Delk and Mr. Swart from offering testimony as to RespondentÔs

character . The undersigned announced at the beginning of the hearing that

the DepartmentÔs motion in limine was denied, without prejudice . T he

Department was invited to object to any improper character testimony

offered by Ms. Delk and Mr. Swart when they testified, but it did not do so.

The Department renewed its motion in limine at the conclusion of the

hearing , after Ms. Delk and Mr. Swart testified . T he undersigned denied the

renewed motion as moot because the witnesses had already testified , without

objection from the Department , and had been excused .

A one - volume Transcript o f the hearing was filed on February 15, 2021 .

Both parties timely filed Proposed Recommended Orders , which have b een

considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

1. The Department of Health is the state agency charged with regulating

the practice of massage therapy within the s tate of Florida, pursuant to

section 20.43, and chapters 456 and 4 8 0, Florida Statutes.

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

massage therapist, Florida license number MA 91037.

3. On December 15, 2018, Respondent provided a massage to client A.M.

at a spa located in Orlando, Florid a. Respondent was an employee of the spa

when he provided the massage to A.M.

4. At the beginning of the massage session, A.M. l ay face down on the

massage table and was covered with a thin white sheet. According to A.M.,

Respondent removed the sheet from half of her body as she l ay face down .

A.M. described the sheet removal as follows :

The draping was removed from one half of my body

from my shoulders to my feet, uncovering on e

whole side of my body, including my buttocks and

my underwear was exposed.

T hough ambiguous, t h e most reasonable in ference from this testimony is that

A.M. was wearing underwear underneath the sheet, and that after the sheet

was removed from half of her body, one side of her buttocks was no longer

covered by the sheet but was cove red by her underwear. There was no

testimony or other evidence offered that describ ed A.M.Ôs underwear .

Accordingly, the evidence does not establish with any certainty whether any

portion of A.M.Ôs buttocks was completely uncovered or bare after the sheet

was removed from half of her body.

5. A.M. testified that Respondent did not ask her permission to remove

the sheet from half of her body , and that she did not say anything to

Respondent about the manner in which she was draped . After the 50 - minute

massag e was over, A.M. left the spa and called her husband and told him

what had occurred . She asked her husband to complain to the spa. The spa

offered A.M. another m a ssage at no charge, but she declined the offer.

6 . Respondent testified that he had no indepe ndent recollection of client

A.M. or the m a ssage services that he provided to her on December 15, 2018 .

Nevertheless, Respondent denied that he removed the sheet from half of

A.M.Ôs body b ecause that was not his routine practice .

7 . Respondent offered pho tographs from one of his m a ssage therapy

textbooks showing four examples of Ñprofessional drapingÒ methods in the

face - down (prone) position . One of the photographs shows a female client

draped with a sheet covering half of her body . The client in this pho tograph is

not wearing any underwear, leaving half of her bare buttocks completely

uncovered. 2 Thus, even if it was not RespondentÔs routine practice to drape

2 Although Respondent was taught that it is acceptable to drape a client with half of the body

uncovered by a sheet or any undergarment, draping a client in this manner would violate t he

rule Ñunless the client gives specific informed consent to be undraped.Ò Fla. Admin. Code

R . 64B7 - 30.001(5) .

client s with only half their body covered by a sheet, he was taught it is

acceptable to do so.

8 . The Department presented testimony from Faith Buhler, L.M.T. , an

expert in massage therapy. Ms. Buhler testified that the standard of care for

massage therapy requires massage therapists to drape clients in conformance

with the rule. But the rule itself adequately defines the standard of care for

draping massage clients under the circumstances at issue here , rendering

expert testimony on the subject unnecessary in this case . Accordingly,

Ms. BuhlerÔs expert testimony is not probative and has not been adop ted f or

this reason .

9 . Respondent offered testimony from Ms. Delk, a massage client, and Mr.

Swart, a former employer. These witnesses were not present when

Respondent massaged A.M. They do not have any first - hand knowledge of

any material fact in dispute in this case and their testimony was disregarded

for this reason.

10 . A.M . Ôs testimony that only half of her body was covered by a sheet

during the m a ssage provided by Respondent on December 15, 2018 , is

credible and is accepted. But A.M.Ôs testimony leav es unresolved whether half

of her buttocks was completely uncovered during the massage , or whether

one side of her buttocks remained covered by her underwear after

Respondent removed the sheet from half of her body.

C ONCLUSIONS OF L AW

11 . A proceeding t o 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 Department therefore bears the burden

of proving the charges against Respondent by clear and convincing evidence.

Fox v. DepÔt of Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008) (citing DepÔt of

Banking & Fin. v. Osborne Stern & Co ., 670 So. 2d 932 (Fla. 1996)).

1 2 . As stated by the Florida Supreme Court:

Clear and convincing evidence requi res 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

mus t 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)). This burden of proof may be met

where the evidence is in conflict; however, Ñit seems to preclude evidence that

is ambiguous.Ò Westinghouse Elec. Corp. v. Shuler Bros ., 590 So. 2d 986, 988

(Fla. 1st DCA 1991).

13 . Respondent may not be found guilty of an offense that was not charged

in the Administrative Complaint. Trevisani v. DepÔt of Health , 908 So. 2d

1108 (Fla. 1st DCA 2005) (administrative complaint charged physician with a

failure to create medical records; proof of a failure to retain medical records

cannot support a finding of guilt). Furthermore, due process prohibits the

Department from taking disciplinary action against a licensee based on

matters not specifically alleged in the charging instrument, unle ss those

matters have been tried by consent. See Delk v. DepÔt of ProfÔl Reg ., 595 So. 2d

966, 967 (Fla. 5th DCA 1992).

1 4 . The Administrative Complaint charge d Respondent with violating the

statute and rule by exposing A.M.Ôs buttocks during the massage ; n o other

body part is mentioned. During opening statements, the Department alleged

that Respondent also improperly expos ed A.M.Ôs vagina during the massage,

but then acknowledged that no charge was brought against Respondent

based upon this allegation. (Tr . 15 - 16). The Department also confirmed at the

outset of the hearing that Respondent was no t charged with sexual

misconduct in this case . (Tr. 10 - 11). For these reasons, t his Recommended

Order is singularly focused on whether the Department proved that

Res pondent failed to drape A.M.Ôs buttocks during the m a ssage in accordance

with the rule .

1 5 . Disciplinary statutes and rules Ñmust be construed strictly, in favor of

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

Wildlife Conser v . Co mmÔn , 57 So. 3d 929, 931 (Fla. 1st DCA 2011); Munch v.

DepÔt of ProfÔl Reg., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA

1992); McClung v. Crim. Just. Stds. & Training CommÔn , 458 So. 2d 887, 888

(Fla. 5th DCA 1984).

1 6 . The Department conten ds that Respondent violated section

480.046(1)(i) (which requires massage therapists to conform to the standard

of care ) , by failing to appropriately drape a client in conformance with rule

64B7 - 30.001 , which provides in pertinent part:

The following acts shall constitute the failure 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:

* * *

(4) Fai lure to explain expected draping techniques

to a client. As used in this rule, draping means

towels, gowns, sheets or clothing.

(5) Failure to appropriately drape a client.

Appropriate draping of a client shall include

draping of the buttocks and genitali a of all clients,

and breasts of female clients, unless the client gives

specific informed consent to be undraped.

1 7 . As stated in the rule, ÑdrapingÒ can mean covering by other things

besides a sheet; the clientÔs clothing is also a draping . U nderwear i s clothing,

and as such is considered a draping under the plain language of the rule. Any

other interpretation would violate the requirement that the rule must be

construed strictly, most favorably to Respondent. Accordingly, the

Department must prove that A.M.Ôs buttocks w as not covered by either a

sheet or her underwear at some point during the massage, to prove that

Respondent violated the rule.

1 8 . A.M.Ôs testimony is confusing because of the repeated use of the word

Ñexposed,Ò both in questions to he r and her answers. The word ÑexposedÒ as

used in this context is imprecise; it does not necessarily mean completely

uncovered or bare.

1 9 . In fact, DepartmentÔs counsel used the term ÑexposedÒ during the

hearing to describe part of A.M.Ôs body that was co vered by her underwear

but no sheet. The following exchange took place during the hearing after

DepartmentÔs counsel confirmed that Respondent was not being charged with

failing to drape A.M.Ôs vagina:

THE COURT: Okay. Are you now making the case

that he a lso failed to drape her vaginal area?

MS. WARD: No. We just wanted to add that in

there. It will show through the patientÔs testimony

that even though she had underwear on, that it

was exposed È . (Tr. 15).

20 . A.M. used similar language during her testi mony to describe body

parts covered by a sheet:

Q. Okay. And when you were on your back, what

was your opinion of the draping?

A. Well, when I had turned on my back, he had - -

the draping was very thin. It felt almost like it

could have been sheer or se e - through. But he had

continued to tuck the draping on the inside of my

armpits tightly, repeatedly, until it felt like it was

nice and snug, which felt like it could have been

pressing snugly against my breasts and my nipples

and areolas, exposing myself to him. (Tr. 35) .

( e mphasis added).

For these reasons, it is unclear whether the word Ñexposed , Ò as used multiple

times in this case , was intended to mean that a body part was covered by a

sheet only, by underwear only, or completely uncovered.

2 1 . The cl ear and convincing standard requires testimony that is more

precise and explicit than the testimony given by A.M . It is possible that A.M.

intended to convey that the side of her buttocks was completely uncovered

and bare during the massage , but her testim ony alone does not establish that

fact with the requisite certainty. In fact, the more reasoned inference from

A.M.Ôs testimony is that the side of her buttocks remained covered by her

underwear after the sheet was removed by Respondent.

2 2 . The rule, when interpreted in accordance with its plain meaning (and

certainly if construed strictly in favor of Respondent as the law requires ) ,

equates underwear to draping s because underwear is a form of clothing.

Because the Department failed to prove that the side of A.M.Ôs buttocks was

completely uncovered by her underwear at any point during the massage, it

has failed to prove that Respondent violated the rule or statute .

R ECOMMENDATION

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

R ECOMME NDED that the Department of Health, Board of Massage Therapy,

issue a final order dismissing the Administrative Complaint against

Respondent, Devin Triplett, L.M.T.

D ONE A ND E NTERED this 2nd day of March, 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.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of March, 2021 .

C OPIES F URNISHED :

Devin K. T riplett Alyssa Ward, Esquire

264 Tavestock Loop Dep artment of Health

Winter Springs, Florida 32708 Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Kama Monroe, JD, Exec utive Director Tallahassee, Florida 32399

Board of Massage Therapy

Department of Health Louise St. Laurent, Gen eral Counsel

Prosecution Services Unit Department of Health

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

Tallahassee, Florida 32399 - 3257 Tallahassee, Florida 32399

N OTICE OF R IGHT T O S UBMIT E XCEP TIONS

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.