20-005210PL Department Of Health, Board Of Massage Therapy vs. Michael E. Maloy, L.M.T. Status: Closed Recommended Order on Tuesday, March 16, 2021.

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

vs. Case No. 20 - 5210 PL

M I CHAEL E. M ALOY , L.M.T.,

Respondent.

_______________________________/

R ECOMMENDED O RDER

On January 27, 2021 , a final hearing was held by Zoo m conference before

E. Gary Early , an Administrative Law Judge assigned by the Division of

Administrative Hearings (ÑDOAHÒ) .

A PPEARANCES

For Petitioner: Ryan Sandy, Esquire

Kristen M. Summers, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: T. A. Delegal, III, Esquire

James C. Poindexter, Esquire .

Delegal Law Offices, P.A.

424 East Monroe Stree t

Jacksonville, Florida 32202

S TATEMENT OF T HE I SSUES

The issues to be determined are whether Respondent engaged in sexual

misconduct in the practice of massage therapy , in violation of section

480 .0485 , Florida Statutes , and , if so, the appropriate sanction.

P RELIMINARY S TATEMENT

On November 2 , 20 20 , Petitioner , Department of Health ( Ñ Department Ò ) ,

issued a n Administrative Complaint against Respondent , Michael E. Maloy ,

a licensed massage t herapist . The complaint charged Respondent with

s exual misconduct in the practice of massage therapy, in violation of section

480.0485.

On November 11, 2020 , Respondent , through counsel, served a n Election

of Rights and an Answer to Administrative Complaint in which he disputed

material facts alleged in the Administrative C omplaint and requested an

administrative hearing.

On December 1, 2020 , the petition was referred t o DOAH . The final

hearing was scheduled for January 27, 2021 .

On January 22, 2021, the parties filed a Joint Prehearing Stipulation

(ÑJPSÒ). The JPS contained eight stipulations of fact, and nine stipulations

of law, each of which are adopted and incorporated herein. The JPS also

identified disputed issues of fact and law remaining for disposition.

The final hearing was convened on January 27, 2021, as scheduled, and

was completed on that date.

A t hearing, the parties jointly offered the testimony of Respondent and

his client, A.M. (ÑA.M.Ò). Dr. Sarah Ferrer - Bruker was identified as a fact

witness to appear on behalf of the Department. She was unable to attend

for reasons, as explained by counsel for the Department, related to patient

obligations. After a n ore tenus motion, and discussion on the record as to

the possibility of holding the record open to reschedule Dr. Ferrer - Bruker,

it was ultimately agreed to have her deposition accepted i n lieu of live

testimony pursuant to Florida Rule of Civil Procedure 1.330(a)(3)(E) . Joint

Exhibits 1 through 9 and 11 were received in evidence .

The one - volume final hearing T ranscript was filed on February 24 ,

2021 . Both parties timely filed P roposed R ecommended O rder s that were

considered in preparation of this Recommended Order.

This proceeding is governed by the law 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 (20 20 ), unless otherwise noted.

F INDINGS O F F ACT

Based on the stipulations of the parties, evidence adduced at hearing, and

the record as a whole, the following Findings of Fac t are made:

1. Petitioner, Department of Health, Board of Massage Therapy

(Petitioner or Board) , is the state agency charged with regulating the practice

of massage therapy in th e s tate of Florida, pursuant to section 20 .43 , and

chapters 456 and 480, Florida Statutes.

Stipulated Facts

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

massage therapi st in the s tate of Florida, holding license number MA 48984 .

3. RespondentÔs current address of record is 4069 Old Mill C ove Trail

West , Jacksonville, Florida 32277 .

4 . At all times material to this proceeding , Respondent worked for

Massage Envy, a massage establishment in Jacksonville, Florida.

5 . On or about August 28, 2020, Respondent performed a massage on

A.M., a 32 - year - old female.

6 . In preparation for her massage, A.M. undressed, laid down on a

massage table, and covered herself with a draping.

7 . In the course of the massage, Respondent uncovered A.M.'s right leg

and massaged her quadricep .

8 . Sexual misconduct is outside the scope of generally accepted practices of

massage therapy.

9 . No massage therapist may engage in sexual misconduct with his or her

patient.

Facts Adduced at Hearing

10 . Respondent was educated in massage therapy, and has practiced

massage t herapy for roughly 13 years. As part of his education, he received

education in ethics and professional conduct. He has also received continuing

education as part of his Florida licensure. His education included instruction

that sexual misconduct is not al lowed.

11 . Respondent worked for Massage Envy at two of its Jacksonville

branches, though he was released after the report of the August 28, 2020,

incident. He also works as a massage therapist for the Jacksonville Jaguars

professional football team.

12 . Respondent indicated that if a client raises a sexual issue during a

massage , a massage therapist is instructed to give the client every

opportunity to correct their pattern of behavior and/or try to divert the

behavior back to the massage. If the client p ersists, the therapist may ask the

client to stop or leave the room.

13 . Respondent testified that prior to August 28, 2020, he had not been

accused of misconduct of any form in connection with his practice of massage

therapy, nor had a client objected abo ut his touching them inappropriately

during a massage. There was no evidence to the contrary.

1 4 . A.M. was a regular client of Respondent on a generally month - to -

month basis , having become a member at Massage Envy in July 2015. She

received massages on a m onthly basis until services were suspended for an

undisclosed period due to Covid - 19. The Massage Envy facility had reopened

at some time prior to August 28, 2020.

1 5 . Respondent was A.M.Ôs primary massage therapist , though she was

treated by another massa ge therapist, Ross, when Respondent was

unavailable or when A.M. saw him by choice to provide specialty service.

Ross was regarded as being particularly skilled in treating the neck area.

1 6 . A.M. and Respondent had no interaction, professional, social, or

otherwise, outside of Massage Envy.

1 7 . A.M. and Respondent would talk during treatment. The subject matter

previously varied, and A.M. may have occasionally strayed into areas that

could be perceived as inappropriate, but there was nothing to cause concern

on RespondentÔs part that would have resulted in termination of a session.

1 8 . A.M. typically kept her eyes closed during treatment, occasionally

falling asleep. The massages generally had their desired effect of relaxation

such that A.M. was often in a Ñ massage dazeÒ afterwards.

1 9 . At some time prior to the events at issue, Respondent wrote his

telephone number on the back of a Massage E nvy tip envelope a nd gave it to

A.M. The reason for Respondent providing his number to A.M. was, as is the

case with many of the facts of this case, disputed. A.M. testified that due to

the Covid - 19 outbreak, Mas sage Envy had closed . She stated that

Respondent told her t hat he had been seeing clients at their homes , and gave

her his number in case she wanted him to give her a massage at her home.

20 . Respondent, on the other hand, testified that he had a favorite pair of

Ñmassage pantsÒ that were in need of repair, and that he had given them to

A.M., who is a seamstress, to have her take a look at them. Respondent

stated that he gave A.M. his telephone number so that she could call him to

let him know if they were worth trying to fix. A.M. acknowledged that at

some point during her professional relationship with Respondent, they

discussed whether she could repair the pants. However, A.M. denied that he

had provided her with his number when he gave her the pants , stating that it

made her uncomfortable that she was not able to contact him regarding the

work that it would entail.

21 . The events of August 28, 2020, could not be more contested. This is not

a case of nuanced behavior. Sexual activity occurred, or it did not occur. The

testimony of each is summarized as follows: 1

A.M.Ôs Testimony

22 . A.M. testified that she appeared at Ma ssage Envy at 9:00 a.m. on

August 28, 2020, for a scheduled 90 - minute massage. She undressed and laid

face down on the massage table, covered by a sheet. There was no evidence as

to whether A.M. completely disrobing was her routine, but neither A.M. nor

Respondent indicated it to be outside of the norm.

23 . The massages wit h Respondent were Ñmostly the same order of

operation,Ò but on the 28th, s ince A.M. was sore from a workout, she asked

that Respondent not do a deep massage. R espondent massaged A.M.Ôs back,

legs, and arms without incident.

2 4 . During the first part of the massage, A.M. engaged in conversation

with Respondent. She did not believe the discussions were sexual in nature.

She told Respondent about her new fitness routine and the workouts

involved. Respondent noted that that he had noticed, and that she looked

r eally good, to which A.M. replied Ñoh, thanks.Ò

2 5 . In the second conversation, A.M. asked Respondent to weigh in with

his thoughts about a situation in which a client asked if he should take A.M.

to dinner after the completion of a job. A.M. stated that she told the client

Ñ look, I'm down to go to dinner with you, but I have to let you know that I do

have a partner and he will know about this. Ò She stated that the prospective

1 The recitation of testimony that follows is graphic and unfiltered. I n a case dependent

entirely on the testimony of the only two witnesses to the event, it seems necessary to

consider , in full, the testimony of the only two witnesses to the event.

client said Ñ O h , no you got me all wrong ,Ò decided not to go through with the

work, a nd never spoke with her again. A.M. was curious as to RespondentÔs

speculat ion as to the clientÔs intentions. She also indicated that although she

was in a relationship, she was open to dating other men, as long as her

partner knew about it.

2 6 . Roughly halfway through the massage, A.M. turned over so

Respondent could massage the front of her body , as was normal . Respondent

began to massage the quad at the front of A.M.Ôs upper right leg. A.M.

testified that, when Respondent started massaging he r quad , instead of

downward strokes along the quad towards her feet , he started to massage

upward and around the top of her quad behind her upper thi gh until he was

touching her buttocks and her vulva .

2 7 . As Respondent began to tou c h A.M., she clenched her buttocks, and

asked , ÑIs this a thing that's happening?Ò Respondent started to finger A.M. Ôs

vagina and asked, ÑIs this okay?Ò to which A.M. replied Ñ yes , that's fine.Ò

2 8 . Respondent continued to insert his finger into A.M.Ôs vagina. She

remember ed Respondent saying, ÑDamn, it's so wet and tight , Ò to which she

replied ÑAnd smooth.Ò A.M. testified that as Respondent fingered her vagina

with one hand, he had the other on her clitoris, but would intermittently

massage the nipple and areola of her right breast.

2 9 . A.M. testified that Respondent again remarked about how tight her

vagina was, and that she responded , ÑMy asshole is , too.Ò

30 . A.M. later testified that she was shocked that the event was

happening, but that Ñ when it happened I tr ied to enjoy it , Ò and p ut her hands

over her head and moaned .

31 . A.M. testified that she did not run or resist because Ñ I didn't know

what would happen if I did. Like, I felt very vulnerable, and, I thought, you

know, like, I'll just lay here and let it finish. Ò Although Respondent had never

given A.M. reas on to believe he was violent, she testified that Ñ he is still tall

and bigger than me and muscular and I was naked. I'm 4' 11. I was very

vulnerable. Ò

32 . A t no point during the incident did A.M. tell R espondent to stop .

Rather, A.M. recounted that after a while, s he ultimately said , Ñ l ook, I'm not

going to cum from this , c an you please just make sure my muscles are even , Ò

to which Respondent stated , ÑI guess I have to go back to doing my job.Ò She

remembered him continuing to finger her vagina for a bit longer before he

stopped and said, ÑIÔm sorry. I'm sorry , Ò to which she Ñ thanked him Ò and said ,

ÑDon't be sorry. I guess people just like touching me.Ò As Respondent

concluded , A.M. asked Respondent if he had a crush on her, and told him she

Ñwould try to be better prepared the next time . Ò

33 . A.M. testified that Respondent then proceeded to massage her low

back from underneath . She though t he may have been wiping his hands on

her . He then moved to massage her shoulders , a t which time A.M. said , Ñ o h,

great , I'm going to smell like pussy juice now .Ò She testified that Respondent

then said, Ñ y ou're going have guys hawkin g all over you from all the

pheromones.Ò

3 4 . A.M. testified that as Respondent con cluded , she said a few more

things because it seemed awkward , and remembered Respondent saying Ñ I

wanted to do that for a long time, but, you know, had to keep it professional .Ò

3 5 . A.M. testified that after the sexual act was concluded, she told

Respondent that ÑI actually had a sex dream about you once, but it was no

big deal.Ò He asked Ñ w as it one of those whe n you felt like you were really

there?Ò A.M. said, Ñ y eah ,Ò and Respondent said, ÑThat's awesome.Ò S he also

indicated that she ask ed Ñ is this why girls at the front desk are like, oh, you

were with Mike, he's so amazing ,Ò to which he just kind of laughed. A.M. also

stated to Respondent Ñ I've always honestly come here for a massage ,Ò to

which he replied Ñ I think my clients come back to me because I use a lot of

pressure. Ò

3 6 . A.M. also testified that , again after the sexual act was concluded, she

told Respondent Ñ that one time while I was receiving a massage from Ross

that he had his hands on my neck and I just wondered to myself what it

would be like if he choked me. Ò She recounted that Respondent replied that

Ñ [w] e often wonder what our clients are thinking. Ò

3 7 . Respondent finished the massage and left the room, closing the door

behind him as was normal. A.M. got dressed and headed for the front desk.

She noticed a clock that read 10:59 a.m., well beyond the scheduled 90 -

minute massage.

3 8 . A.M. testified that she saw Respondent in the hallway, and said ÑBye.

See you next time.Ò She testified that she was in a Ñmassage dazeÒ as she

walked to the front desk to check out. S he spoke with the manager, telling

her that she fe lt very relaxed. She paid for the massage, and left a tip for

Respondent. She did not say anything else to anyone about the massage

before she left the premises.

3 9 . As to the reason for not alerting anyone at Massage Envy to the

incident, A.M. testified that Ñ I was confused. You know, like, obviously, I said

I wasn't injured. So, maybe, you know, I thought to myself, oh, maybe that's

a thing that happened and I can get over it. Ò

RespondentÔs Testimony

4 0 . A.M. had a 9:00 a.m. appointment with Respondent o n August 28,

2020. A.M. went to the massage room alone , undressed, and laid face down on

the massage table. She was draped with a sheet.

4 1 . Respondent testified t hat the appointment was normal. He greeted

A.M., asked if there w as anything that needed particular attention , and tried

to get an understanding of what she was looking for in the massage that day.

A.M. was sore from exercise, and did not want a deep massage, as she

typically received. She did request a full body massage.

4 2 . From what he could recall, Respondent performed a Ñnormal service,Ò

with no specific out of the ordinary requests. Respondent has an established

routine when performing massage, working a round the body in a clockwise

pattern to ensure that he does not skip a body part or miss something along

the way. Patients typically start lying on their stomachs and , about halfway

through a session , turn over. The general pattern is the same on both sides.

That has been his practice since therapy school.

4 3 . Respondent testified that A.M.Ôs massage as she was positioned on her

stomach was uneventful , and conversation routine .

4 4 . About midway through the massage, A.M. turned over, which was the

normal course for a full body massage. Respondent testified that Ñ the

conversation quickly changed and it went into one of that was off the topic of

massage of what we had been talking about .Ò He recounted three topics of

conversation during the course of A.M.Ôs massage that started to get Ñoff

track.Ò

4 5 . First was the discussion , also a topic of A.M.Ôs testimony, regarding a

client she had done some work for. Respondent stated that A.M. wanted his

advice because Ñyou're a guy, you might understand why he reacted this

way.Ò Purportedly, to RespondentÔs recollection, after A.M. completed the

work , the client asked A.M. to dinn er Ñ and other things.Ò Respondent

indicated that A.M. told the client Ñ yeah, I'm cool with that, but I have to ask

my boyfriend , Ò which caused the client to be taken aback. A.M. was curious

about the clientÔs reaction, and wanted RespondentÔs opinion as to his

reaction . Respondent testified that Ñ I guess it's because he wasn't expecting

the response about your boyfriend. Ò Respondent testified that the question

was off the topic of massage , and Ñ a little strange and a little weird . Ò

However, it was not to the point of what he perceive d as Ñ crossing that line .Ò

Respondent testified that he redirected the conversation, with mixed success,

back to what was needed in terms of the massage, but d id not report the

conversation to any other employee or manager at Massage Envy.

4 6 . Respondent testified that at another point in the massage, A.M.

advised him that she had Ñ a wet dreamÒ in which Respondent performed oral

sex on her. Respondent testified that he again tried to redirect the

conversa tion to one of massage. A.M. had been a client quite a long time, and

he was giving her every opportunity to continue to be a client.

4 7 . Finally, Respondent testified that when he started to work on A.M.Ôs

neck, she advised him that when she was worked on by Ross, a massage

therapist known for his neck work, she wondered what it would be like for

him to choke her. Respondent perceived the choking to be for sexual

gratification. As ÑshockingÒ as he perceived the comment to be, Respondent

testified that Ñ I tried to redirect it towards massage, Ò saying Ñ Ross is good at

neck work and a lot of his clients see him for neck work. Ò He was close to the

end of the massage , tried to quickly finish t h e massage and said , Ñ okay, hey,

that's it, we're done. Ò

48 . Respon dent testified that as he went to walk out of the room, A.M.

noted that he forg o t to work her pectoralis muscles on the upper part of her

chest. Although he was already running over the scheduled time, he came

back , massaged both sides for a few minutes , a nd left the room . It is

RespondentÔs normal custom to leave the room after a massage so the client

can dress in privacy.

49 . Respondent testified that as A.M. left, Ñ she said bye to me, and she

goes I'll see you later. Ò She left him a ÑgenerousÒ tip -- ove r $30.

5 0 . Respondent testified that he found the nature of the conversations

with A.M. to be Ñshocking.Ò However, he did not mention them to either his

coworkers or management at Massage Envy. He testified that, in retrospect,

he should have left th e room and gone directly to management. He indicated

that clients discussing topics that may be inappropriate -- politics, religion,

things of a sexual nature -- are not uncommon. He tries to act professional

and go about his business. He stated that, as he goes from client to client to

client throughout the day, Ñ[y] ou never think it's going to go to something like

this or this point .Ò

5 1 . Respondent denied touching on or near A.M.Ôs vagina. Respondent

denied touching A.M.Ôs breasts, though he did massage her pectoralis muscles

along the collarbone and the upper path of the muscle tissue. Respondent

denied that he experience d any type of sexual arousal during A.M.Ôs massage.

Post - Incident Events - A.M.

5 2 . On August 31, 2020, while A.M. was masturbating, the events of

August 28, 2020 , came back to her. She came to the conclusion that what

happened was wrong . Up until that point , A.M. had not told any other person

about the alleged incident .

5 3 . The next day, September 1, 2020, A.M. went to Massage Envy to

cancel her membership. She did not tell the representative about her

allegations regarding Respondent.

5 4 . Massage Envy did not permit A.M. t o cancel her membership that day.

However, they allowed her to freeze her account . She could then cancel

within th e time needed to cancel without having to pay for another month. 2

5 5 . That same day, a fter her effort to cancel her membership proved

unsuccessful , A.M. sent two text messages to Respondent. In her first, sent at

12:59 p.m., she said ÑHey Mike, itÔs A.M.,Ò to which Respondent replied at

2:12 p.m. ÑHow are you?Ò A.M. then responded at 4:43 p.m. :

IÔm not okay IÔm sad and angry over what happened

Friday. I feel taken advantage of regardless of

anything I said. None of what I said was an

invitation to do that to me. I was in a very relaxed

state of being. IÔm disappointed that I built trust

with you and that I paid you to do this to me. This

was something I routinely made part of my fitness

2 Despite having frozen her membership, her next monthÔs dues were still withdrawn from

her acc ount. Massage Envy was apologetic and cancelled the membership. A.M. did not ask

for a refund, and it is unclear, and ultimately irrelevant, whether she received one.

and wellness the past several years. I had to cancel

my membershi p today. I really hope you donÔt do this

with anyone else.

A.M. then blocked Respondent from her contacts, though Respondent

indicated that he did not try to reply.

5 6 . On September 2, 2020, A.M. discussed the incident with her friend,

Dr. Ferrer - Bruker. The initial contact between A.M. and Dr. Ferrer - Bruker

occurred that afternoon, when A.M. asked to discuss something Ñheavy.Ò They

spoke around 6:00 or 7:00 p.m. Dr. Ferrer - Bruker recalled that A.M. told her

that she received a massage from her regular ma ssage therapist, and that he

Ñfingered her,Ò and that she regretted that she did not do something different

as a reaction at the time. Dr. Ferrer - Bruker tried to comfort A.M., and

recommended that she go to the police , a discussion confirmed by A.M.

Dr. Fe rrer - Bruker remembered little else of the conversation.

5 7 . After having spoken with Dr. Ferrer - Bruker, A.M. filed a police report

with the Jacksonville Sheriff's Office (ÑJSOÒ) later in the evening on

September 2, 2020. At 8:53 p.m., A.M. texted Dr. Ferrer - Bruker that Ñ [t] hey

are sending a police officer to me now.Ò

58 . The JSO conducted an investigation of the August 28 incident. A.M.

testified that she recalled telling the police that she was shocked and terrified

and scared at the time th e incident was going on . However, she testified that

Respondent had never previously given her reason to believe he was violent,

nor had he made her feel threatened in a physical manner .

59 . Between the time A.M. made the police report and the date she

reported the incident to Massage Envy , she stated that she discussed the

incident with other persons. None of those persons testified and there is no

other evidence of any such discussions.

6 0 . On September 14, 2020, A.M. reported the incident to Massage Envy.

She advi sed the manager, Katherine Petrino , that she had a massage with

Respondent on August 28, 2020 . She reported that the massage started as

normal , but as Respondent starting to massage her quad , he instead fingered

her vagina. Later that day, A.M. emailed Ms. Petrino with an account of the

incident that , despite her statement that her Ñ[m]emory is foggy on the

sequence of what else was done and said , Ò differed little, if at all, from her

testimony.

6 1 . A.M. was then contacted by Redirect, a third - party invest igator for

Massage Envy. She restated the events to the representative.

Post - Incident Events - Respondent

6 2 . About two weeks after August 28, 2020, Ms. Petrino, the clinic

manager for Massage Envy - Harbor Village, advised Respondent that there

was a complaint against him for inappropriate touch ing. She did not give

details. Respondent was placed on suspension until further notice.

6 3 . A couple of days later, Respondent was contacted by the third - party

investigator , and gave a statement. H e testified that he told the investigator

h ow the massage went, what body parts were worked on , and described the

conversation . He advised of having received both of A.M.Ôs te x t messages on

September 1, 2020, and that he did not respond to her second, leng thier

message. He indicated that his discussion with the investigator was

consistent with his statements at the hearing and otherwise.

Social Media

6 4 . Starting around December 4, 2020 , A.M. posted her thoughts

regarding the incident on Instagram. The posts, with a few exceptions, were

not dated. The text of the first post was as follows:

TW: Sexual Assault

I keep thinking about how the scariest thing I feel

like I did this year wa s pick up the phone to report

my abuser. I felt the most shame because I didn't

think anyone would believe me because a) I'd known

them so long b) they were well - loved at the place and

c) I'm a sex pot so maybe it would just be Ñ on - brand Ò

to have Ñ let it happen and regret it Ò (second quotes

are actual words from a JSO officer in 2020).

Please, the Ñ brand Ò is pleasure. The brand is

consent. The brand is joy, not confusion and fear and

freezing and trying to just say anything to get

through a situation. The brand is context and that it

never should have happened in the first place.

How sad is it that I just said the scariest thing was

reporting my abuser and not the fact that it

happened at all?

Life is not happy and positive as a default. I've never

been fake about anything, just learned that people

love to see joy on here.

Anyway, I am very grateful for this escape and the

support I have gotten from my beautiful partner,

friends, and family. Most of all grateful for myself

because I'm mf - ing that bitch.

6 5 . A second post, also undated, provides that:

TW: Sexual Assault

I was gonna blame a man for molesting me and

stressing me the fuck out and sending me into

uncontrollable depression for setting me behind on

all of my work

but the reality is I'm actual ly just celebrating the

fact that I've made it, I pushed through, and I am

THAT bitch who was able to crush three custom

wedding gowns in a week so ጤ ⣦ ╉◿ Try not to

fuck with me THANKS!!! ◫

6 6 . Unlike the JSO investigation, the question here is not one of consent.

If the acts alleged occurred between A.M. and Respondent, acting in the

course of his licensed profession, they constitute a violation of section

480.0485 , whether they were engaged i n between two consenting adults, or

whether they were forced upon the client entirely without consent. In short, i f

the acts occurred, they violated the massage therapy practice act.

6 7 . The testimony of Dr. Ferrer - Bruker, who was not a witness to any of

t he alleged acts of Respondent, played no direct role in the determination of

the outcome in this matter.

68 . A.M.Ôs testimony was forceful and emotional. Despite her self -

perceptions and her Ñbrand,Ò she was precise about the facts, and adamant as

to the role of consent in a sexual encounter.

69 . RespondentÔs testimony was equally forceful, but more reserved in

delivery. He testified that he loved his family and his job, that he had built a

reputation and a career over many years , and performed at a high l evel. He

stated that he would not jeopardize his work, his r eputation, and his clientsÔ

trust -- in short that he Ñ would never do that, to sit there and throw it away

on something like this. Ò

C ONCLUSIONS O F L AW

A. Jurisdiction

7 0 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding . §§ 480.046(4), 120. 569 , and

120.57(1) , Fl a. Stat.

7 1 . Petitioner has authority to investigate and file administrative

complaints charging violations of the laws governing licensed massage

therapists. § 456.073, Fla. Stat.

B. Standards

7 2 . Section 480.046(1)(p) provides that:

The following 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.

7 3 . Respondent is charged with engaging 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 scope of generally accepted

examination or treatment of t he patient. Sexual

misconduct in the practice of massage therapy is

prohibited.

7 4 . Florida Administrative Code R ule 64B7 - 26.010, entitled ÑSexual

Activity Prohibited,Ò provides, in pertinent part, that:

(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, 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

interc ourse, 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 can involve the use of

any dev ice or object and is not dependent on whether

penetration, orgasm, or ejaculation has occurred. ...

C. Burden and Standard of Proof

7 5 . The D epartment 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. & Inv. Prot. v.

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

2d 292 (Fla. 1987); Fox v. Dep't of Health , 994 So. 2d 416 (Fla. 1st DCA 2008);

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

7 6 . Clear and convincing 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 level of proof :

[E]ntails both a qualitative and quantitative

standard. The evidence mu st 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 hesitancy.

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 th at 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). Ñ Although this standard of proof may

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

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

989 (Fla. 1st DCA 1991).

7 7 . 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). 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 terms of their literal meaning and words us ed by the

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

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

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

DCA 2018 ) .

78 . 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).

79 . 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. DepÔt 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.

M.H. v. DepÔt of Child. & Fam. Servs. , 977 So. 2d 755, 763 (Fla. 2d DCA

2008).

D . Analysis

8 0 . The undersigned has no hesitation in concluding that the act s alleged,

if proven, c onstituted both sexual misconduct under s ection 480.0485, and

conduct outside of the scope of massage as defined in c hapter 480 .

8 1 . During the hearing, counsel for Respondent suggested that a violation

based on Ñhe said/she saidÒ cannot be sustained under the clear and

convincing evidence standard. That is not accurate. Section 120.80(4),

entitled Regulation of Professions, provides, in pertinent part, that:

Notwithstanding s. 120.569(2)(g), in a proceeding

against a licensed professional or in a proceeding for

licensure of an applicant for professional licensure

which involves allegations of sexual misconduct:

(a) The testimony of the victim of the sexual

misconduct need not be corroborated.

8 2 . This case comes down entirely as one driven by the burden of proof.

Thus, t here must be something to tilt the balance.

8 3 . A.M.Ôs testimony was believable. There was nothing in her

comportment at the hearing to suggest that she was making up the even ts as

she described them. Her description was consistent from her first report to

the JSO and Massage Envy to her testimony at the hearing. T he facts to

which A.M. testified were distinctly remembered; the testimony was precise

and explicit ; and she was la cking in confusion as to the facts in issue.

8 4 . RespondentÔs testimony, despite lacking the depth of emotion

exhibited by A.M., was just as believable . He did not hesitate in his

description of the events. He recounted his version of the events without

inconsistency. T he facts to which Respondent testified were distinctly

remembered; the testimony was precise and explicit ; and he was lacking in

confusion as to the facts in issue.

8 5 . Some might posit that Respondent has an obvious interest in retaining

his license and his livelihood. That interest is not sufficient to diminish the

weight of his testimony. If that were the case, then every administrative

complaint would start with a n inference that the charged licensee had a

predisposition to lie, which w ould impermissibly lessen the effect of the

legislatively established clear and convincing burden of proof.

8 6 . There was no physical or extrinsic evidence of the alleged sexual

misconduct. There was no video recording, no fluid or semen collected . A.M.Ôs

demeanor as she exited the Massage Envy facility was not such as to alert

the staff that anything out of the ordinary had occurred. Rather, she departed

in the normal course, saying Ñgoodbye, see you next timeÒ to Respondent,

remarking to the manag er, outside the presence of Respondent , about how

relaxed she was, paying her bill, and leaving a tip.

8 7 . There was not sufficient evidence to cause the undersigned to discount

or disbelieve A.M. She could not have misperceived the acts alleged as

somethi ng else. The y either occurred, or they did not.

88 . There was not sufficient evidence to cause the undersigned to discount

or disbelieve Respondent . He could not have innocently or accidentally

performed the acts alleged without knowing . The y either occurr ed, or they

did not.

89 . The distress displayed by A.M. do es suggest that an event occurred to

cause A.M. to react emotionally as she recounted the events. However,

emotion alone without something else - - anything else - - would penalize the

emotionally reserved. The law simply does not allow th e substantial burden

established by the legislature to be met by emotion or lack thereof. There

must be something - - a contemporaneous act on the part of the client, an

inconsistent or hesitant statement , a demeano r indicative of evasion on the

part of the practitioner - - to establish, by clear and convincing evidence, that

a violation occurred. Some act or event sufficient to tip the balance , and meet

that heightened quantum of proof , does not exist here.

9 0 . A.M.Ôs demeanor while at Massage Envy, and the four - day delay in

discussing the incident with a friend and, at the friendÔs prodding, reporting

it to the police, leaves Ñthe sum total of the evidenceÒ insufficient Ñto convince

the trier of fact without hes itancy.Ò Though A.M. did not make

contemporaneous complaints about Respondent's alleged misconduct, the

manner in which she ultimately made them some days later, and the

consistency with which she held to her story, tended to add some weight to

her testimo ny . Were this a case to be decided by the preponderance of the

evidence st a ndard , i.e. , Ñ50 percent plus one,Ò the consistency in A.M.Ôs

accounts of the incident might well have been sufficient to provide that extra

scintilla of weight to warrant a differe nt outcome. However, this is not a

preponderance of the evidence case. Furthermore, Respondent held to his

story with equal consistency and conviction , thus leveling the scale .

9 1 . Neither A.MÔs nor RespondentÔs testimony was inherently incredible;

and conversely, neither one Ô s testimony was inherently more credible than

the other Ô s. A.M.Ôs description of sexual misconduct cannot be rejected out of

hand; it is obviously not outside the bounds of human interaction . Upon

hearing her story, one does not think, ÑThat could not possibly have

happened.Ò To the contrary, A.M.Ôs testimony is all too believable. And yet,

RespondentÔs testimony is also believable. He did not present with some

contrived description of an implausible Ñacci dentÒ that tests credulity , but

rather said exactly what one would expect a person falsely accused of sexual

misconduct to say: ÑI did not do it.Ò He could say little more if , in fact , he was

innocent . There is no way for Respondent to affirmatively disprove the

particular allegations that A.M. made. See In re: Rudy Maloy , Case No. 02 -

1231EC , R.O. at ¶ 44 (Fla. DOAH Apr. 25, 2003; Fla . COE Oct. 2 1 , 2003).

9 2 . This is not a case in which Respondent has been deemed to be more

worthy of belief than A.M. Rather, absent some extrinsic evidence, the

conflicting testimony presents a dilemma , the resolution of which , if one must

choose between competing narratives, depends on who is deemed to be the

more credible witness. Because the Department bears the burde n of proving

its case by clear and convincing evidence, A.M. , as the DepartmentÔs sole

witness, must be judged not just credible -- which she was -- but considerably

more credible than Respondent to support the violation. The reason for this

heightened sta ndard of proof in professional licensing cases has been

determined by the legislature to be appropriate when oneÔs livelihood is at

stake. Latham v. Fla . Comm Ôn on Ethics , 694 So. 2d 83, 86 (Fla. 1st DCA

1997).

9 3 . Having closely observed both A.M. and Respondent on the witness

stand, the undersigned is unable to state, based on their respective

demeanors, wh o was telling the truth -- and wh o was not. Both appeared to

be sincere in recounting the events of August 28, 2020. Neither displayed any

perceptib le indicia of prevarication.

9 4 . After carefully weighing all of the evidence, the undersigned is not so

convinced as to be able to conclude , with confidence , that either version of the

events of August 28, 2020 , advanced at hearing , so outweighed the othe r to

result in a firm belief or conviction, without hesitancy, as to the truth of the

allegations upon which the Administrative Complaint is brought.

9 5 . Given the nature of the alleged incident, the undersigned takes no

satisfaction in recommending against the Department . Nonetheless, given

the particular facts of this case, the undersigned is unable to find that

Petitioner proved, by the requisite quantum of proof , that Respondent

engaged in sexual misconduct in the practice of massage therapy, in v iolation

of s ection s 480.046(1)(p) and 480.0485 , or r ule 64B7 - 26.010 .

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, Michael E. Maloy , L . M . T .

D ONE A ND E NTERED this 1 6 th day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

E. G ARY E ARLY

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 1 6 th day of March , 20 21 .

C OPIES F URNISHED :

T. A. Delegal, III, Esquire James C. Poindexter, Esquire

Delegal Law Offices, P.A. Delegal Law Offices, P.A.

424 East Monroe Street 424 East Monroe Street

Jacksonville, Florida 32202 Jacksonville, Florida 32202

Ryan Sandy, Esquire Kristen M. Summers, Esquire

Prosecution Services Unit Prosecution Services Unit

Department of Health Department of Health

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

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Kama Monroe, JD, Executive Director Louise 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

N OTICE O F 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 Recomm ended Order. Any exceptions to this Recommended

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

case.