21-000180PL Department Of Health, Board Of Massage Therapy vs. Terrence Grywinski, L.M.T. Status: Closed Recommended Order on Friday, November 5, 2021.

Summary: Petitioner did not prove by clear and convincing evidence that Respondent committed sexual misconduct. Recommends dismissal of 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 ,

vs. Case No. 21 - 0180PL

T ERRENCE G RYWINSKI , L.M.T. ,

Respondent.

/

D EPARTMENT OF H EALTH , B O ARD OF

M ASSAGE T HERAPY ,

Petitioner,

vs. Case No. 21 - 0181

T ERRENCE G RYWINSKI M ASSAGE ,

Respondent.

/

R ECOMMENDED O RDER

On July 12 and 21, 2021, Admi nistrative Law Judge Lisa Shearer Nelson

of the Florida Division of Administrative Hearings (DOAH) conducted a

disputed - fact hearing by Zoom technology.

A PPEARANCES

For Petitioner: Dannie L. Hart, Esquire

Andrew James Pietrylo, Esquire

Depar tment of Health

B in C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

For Respondent: Lance O. Leider, Esquire

Amanda I. Forbes, Esquire

The Health Law Firm

Suite 1000

1101 Douglas Avenue

Altamon te Springs, Florida 3271 4

S TATEMENT OF T HE I SSUE S

The issues to be resolved are whether Respondent committed the offenses

charged in the Administrative Complaints and, if so, what penalties should

be imposed.

P RELIMINARY S TATEMENT

On October 28, 2020, Petitioner, Department of Health (Petitioner or the

Department) filed Administrative Complaints against Terrence Grywinski,

L.M.T., and Terrence Grywinski Massage, alleging that Terrence Grywinski

had committed sexual misconduct in violation of section s 48 0.046(1)(p) and

480.0485, Florida Statutes, as defined by Florida Administrative Code

Rule 64B7 - 26.010(4). 1 Mr. Grywinski filed Election of Rights forms for each of

the Administrative Complaints disputing the allegations against him, and on

January 15, 202 1, the cases were referred to DOAH for the assignment of an

administrative law judge.

O n January 28, 2021, the cases were consolidated and the following day, a

Notice of Hearing was issued scheduling them for hearing on April 6, 2021,

by Zoom conference. Both parties requested continuances, based on good

cause, and the hearing was rescheduled a number of times. Ultimately, the

hearing commenced on July 12, 2021, and reconvened and finished on

1 The Administrative Complaint in DOH Case No. 2019 - 39386 and docketed as DOAH Case

No. 21 - 0180PL is against Mr. GrywinskiÔs massage therapy license. The Administrative

Complaint in DOH Case No. 2019 - 39761 and docketed as DOAH Case No. 21 - 0181 is against

the premises permit for Terrence Grywinski Massage. The factual basis for both

Administrative Complaints is the same, and for ease of reference, Responden ts will be

referred to in the singular, i.e., Mr. Grywinski or Respondent.

July 21, 2021. On July 6, 2021, the parties filed a Joint Pre - He aring

Stipulation in which they identified certain undisputed facts that would

require no evidence at hearing. Those stipulated facts, where relevant, are

included in the F indings of F act below.

Joint Exhibits 1 and 2 were admitted into evidence. Patient M.M. and

DOH Investigative Supervisor Marisol Allen testified on behalf of Petitioner,

and PetitionerÔs Exhibits numbered 1 through 5 were admitted. Respondent,

Kacee Lynn Homer, and Lisa Caller testified on behalf of Respondent, and

RespondentÔs Exhibits numbered R - 1 through R - 3, Bates stamp pages 47 - 48

and 53 through 58 of R - 4, R - 5 through R - 21, and R - 23 through R - 25 were

admitted into evidence.

The three - volume Transcript of the proceedings was filed with DOAH on

September 20, 2021. The deadline for fi ling proposed recommended orders

was extended for good cause, and the Proposed Recommended Orders were

timely filed. All references to the Florida Statutes are to the 2017

codification, unless otherwise indicated.

F INDINGS OF F ACT

1. Petitioner is the sta te agency charged with the licensing and regulation

of massage therapy practice pursuant to section 20.43 and chapters 456 and

480, Florida Statutes.

2. Respondent , Terrence Grywinski , is a licensed massage therapist in the

State of Florida and holds licen se number MA 6049.

3. RespondentÔs mailing address is 6419 Meandering Way, Lakewood

Ranch, Florida 34202.

4. Respondent , Terrence Grywinski Massage , is licensed as a massage

establishment in the State of Florida and holds license number MM 18059.

5. The es tablishmentÔs physical location is 1188 Tamiami Trail, Sarasota,

Florida 34236, and this location is the location where all appointments

relevant to the facts in this case were scheduled and conducted.

6. Respondent has been licensed to practice massage th erapy in Florida

since on or about July 9, 1985. The establishment was licensed as a massage

establishment on or about March 20, 2006. Respondent is the sole owner and

sole employee of the establishment, which conducts business as Advanced

Craniosacral The rapy. No evidence was presented to indicate that either

license has been previously disciplined by the Board.

7. As a licensed massage therapist, Respondent is subject to the state of

Florida laws and rules governing licensed massage therapists, and the

es tablishment that he owns is likewise subject to the laws and rules

governing massage establishments.

8. Respondent does not practice traditional massage therapy and has not

done so since approximately 1995. He was trained in a modality called

craniosacral therapy (CST) in 1995, and has performed that modality

exclusively since that time.

9. According to Respondent, trauma of any kind, whether emotional or

physical, causes a tremendous force of energy to come into the body, and the

body tries to protect it self by ÑshorteningÒ and isolating the energy. This

isolation of the energy created by trauma is what creates areas of tension

within the body.

10. The theory behind CST is that the body will correct itself when it feels

Ñsafe.Ò CST works with the fascia c onnective tissue that attaches muscles to

the bone, and encases a personÔs organs, brain, and spinal cord. CST uses

very gentle holds to create a safe space for the body, which will help the body

slip into a corrective reorganizational healing mode. When a person

undergoes CST, the fascia will start to release and the person will feel a

Ñletting goÒ or release in the tissue. CST does not involve manipulation of the

tissue, but rather, a series of holds that may last in any one place for five to

ten minutes. The amount of pressure applied is Ñwhatever pressure the body

tells you it needs,Ò but generally no more than five grams of pressure.

According to Faith Buhler, who testified by deposition as an expert for the

Department, when there is a release, there is a different pulse in the body.

11. Respondent trained in CST through the Upledger Institute, which was

established by John Upledger. Respondent has received extensive continuing

education in CST and the majority of his statutorily required continuing

educ ation deals with the performance of this modality.

12. Typically, RespondentÔs first - time clients make an appointment for

CST and are given a code to enter the second floor of the building where

RespondentÔs office is located. He greets patients in a commo n waiting room

and takes them to the one - room office where therapy takes place. The office

contains two chairs, a massage table, a small side table where a ÑcuppingÒ

machine is stored, and a bookshelf.

13. New clients are asked to fill out an intake sheet that requests some

basic information about the client and his or her reason for seeking CST.

Respondent uses the information on the intake sheet to speak with the client

about his or her needs, and places it in a manila folder that he uses to take

notes. The notes are on the manila folder itself, as opposed to paper contained

in the folder. If additional space is needed for subsequent visits, he simply

gets another manila folder and, hopefully, keeps the folders about a

particular client together. Responde nt admits he is not very organized, and

maintaining his files is not his specialty. Most clients have three to six

sessions with Respondent, so it is conceivable that for most clients, a single

folder would be sufficient.

14. After Respondent speaks with t he client, the client lies down on a

table during the therapy, fully clothed, facing up. Typically, Respondent is

the only person in the room during CST sessions, and the sessions last

approximately an hour and a half. He will assess a client by lifting ea ch leg to

compare length and will rotate the legs to assess range of motion through the

hips. After assessing a client, Respondent goes through a series of gentle

holds, generally using the same protocol each time, with some variation

depending on the need of the client. He testified that he will tell clients what

he is going to do and where he is going to place his hands, and advises clients

that if at any time they feel uncomfortable with what he is doing or where he

is placing his hands, the client shoul d feel free to tell him.

1 5 . Respondent will review the notes he made from prior visits at the

beginning of each session and will discuss any changes that have taken place

since the last session. Many times, the notes that Respondent keeps will

include sen sitive personal information related by a client if that information

may reveal a source of trauma.

16. During the time period relevant to these proceedings, Respondent

advertised his practice in an alternative medicine magazine called ÑNatural

Awakenings.Ò M.M. is the managing editor of Natural Awakenings. As part of

her job, she writes articles and conducts interviews of professionals who

advertise in the magazine.

17. M.M.Ôs supervisor, Janet Lindsay, assigned her the task of

interviewing and writing an a rticle about Respondent and his practice. M.M.

was told that Respondent practiced CST.

18. On May 1, 201 7, M.M. emailed Respondent and told him that Natural

Awakenings wanted to feature him in an article for the June issue, and sent

him a series of questio ns to answer, along with her telephone number.

Respondent did not immediately respond, so on May 8, 2017, M.M. emailed

him again to make sure he received the first email. Respondent called M.M.

the next day and suggested that M.M. come in a nd receive a CST treatment

at no charge, so that she would have a better understanding of the modality

when writing the article. M.M. accepted the offer and made an appointment

to see Respondent on May 12, 2017.

19. During this first session, M.M. interviewed Respondent f or the article,

filled out an intake sheet, and provided a medical history. Respondent asked

her some questions, then directed her to remove her shoes and lie on the

table, fully clothed. Respondent explained what he was doing and where he

would place his hands as he performed the various holds.

20. M.M.Ôs description of the first session is consistent with RespondentÔs

description of how he conducts all CST sessions. There is no allegation that

any improper or unprofessional conduct took place at the May 12, 2017,

session.

21. At the end of the session, Respondent offered to continue providing

free sessions to M.M. in exchange for M.M. writing additional articles for the

magazine about his practice. M.M. agreed to the arrangement. She testified

that these kinds of arrangements are not the norm, but that it was not the

first time it had occurred.

22. M.M. testified that she felt better after having the CST session, in that

her chronic pain was better, her body less tense, and her breathing easier,

especially when running. These benefits, however, were temporary.

23. M.M. wrote an article about the first session, which she provided to

Respondent for review and approval before it was published. Respondent

appreciated the article, felt that it was well written, and benefited his

practice.

24. On May 18, 2017, M.M. provided the final copy of the article for

publishing. There was no indication from the evidence presented that the

partiesÔ interaction at the initial visit or the exchanges regarding the article

in th e week following the visit were anything but professional.

25. M.M. saw Respondent for additional sessions on June 9, 2017;

September 26, 2017; November 3, 2017; and November 30, 2017. M.M. did

not find anything about these visits to be unprofessional or o ut of the

ordinary, with the exception of the last visit on November 30, 2017.

26. M.M. and RespondentÔs accounts of the November 30, 2017, visit are

not reconcilable. Respondent testified that the visit was much like previous

visits, while M.M. contends t he visit involved unwanted and inappropriate

touching and inappropriate commentary about her body.

27. Leading up to the final visit, M.M. testified that RespondentÔs

behavior seemed more familiar and personal than the behavior of a health

care provider. S he claimed that he started calling and emailing her late at

night, and referred to her as his Ñmuse.Ò She specifically indicated that one

call came on a weekend, and she chose not to answer it because she was with

her sister and did not want to interject w ork issues into her weekend.

28. Phone records from the providers for both M.M. and RespondentÔs

phone numbers reveal only one call made from Respondent to M.M., and that

call took place May 9, 2017, before her first appointment with him.

29. The Departmen t did not produce any of the emails M.M. claimed that

Respondent made to her. Respondent produced most , but not all , of the

emails between the two. He testified that he provided to the Department all

of the emails he found at the time he responded to the c omplaint, and that

any omissions were unintentional. It is noted that the subpoena issued to

Respondent requests patient records, but does not request emails. The

request for production issued by the Department to Respondent, which is on

the docket for thi s case, does not specifically request emails, but instead

requests documents to be used at hearing. None of the emails in evidence

contain any improper statements. All of them involve either questions about

RespondentÔs practice, or review of the articles that M.M. wrote about his

practice. 2

2 During hearing, the Department showed Respondent a copy of an email he provided in

response to the DepartmentÔs request for production. The email appears, from the portions

read a t hearing, to involve an article that Respondent wrote about his practice. The

Department did not offer the email into evidence, but asked Respondent to read where the

email apparently stated, Ñboth of you are my angels.Ò Respondent responded by saying, ÑY es,

I said that, but I never called her an angel in any session. I was complimentary. Both

Lindsay Ï or Janet Lindsay and Ms. M.M. were very helpful in my professional life, and I see

nothing wrong with referring them to angels who are helping me in my pro fession. And if I

said I never called anybody an angel, I couldnÔt remember that email until you brought it up

now.Ò

30. Phone records between M.M. and Respondent do indicate that

Respondent contacted M.M. either by email or by text, late on some evening s .

However, up until March of 2018, well after the final appointment, these

contac ts were in response to emails sent by M.M. to Respondent. The

telephone records reference emails sent by Respondent to M.M. on

January 17 and 23, 2018, a few months after M.M.Ôs last visit. However,

neither Respondent nor M.M. were asked about these emails by date, and the

record contains no information regarding their contents.

31. The weekend before the November 30, 2017, visit was Thanksgiving

weekend, and M.M. and her husband had a lengthy car ride returning from

Atlanta where they spent Thanksgiving. F or whatever reason, M.M. had a

panic attack during the car ride, and remained especially tense at her

appointment with Respondent. She recalled that the discussion portion of the

visit seemed shorter, and that Respondent used a pendulum to detect energy

be fore commencing with the CST. 3 He noticed that her chest area was more

closed then usual and asked her if there was some reason why she had

tightness there.

32. M.M. testified that she explained to Respondent that she had always

had body image issues, spe cifically with her chest. She stated that

Respondent offered to address the tension with a modality called Ñcupping,Ò

which would also make her breasts look Ñperkier.Ò

33. Cupping is a modality that Respondent acknowledges using on

occasion. He has cuppin g equipment that has a variety of cup sizes and is

The Department also contends in its Proposed Recommended Order that ÑGrywinski has no

explanation for why he did not provide the Janua ry 2018 emails.Ò However, the record does

not reflect that the Department ever specifically asked Mr. Grywinski a question about those

emails, either at hearing or in his deposition, so as to require an explanation about them.

3 The use of the pendulum is a technique that Respondent developed himself. It supposedly

detects energy in the body, or an absence thereof, and he also used this technique in a prior

session.

made so that one can use one or two cups at a time, although he generally

uses only one. The machine has tubing that attaches to both the machine and

the cup(s), and the amount of pressure to create suct ion can be changed using

a dial on the machine.

34. M.M. testified that she was familiar with the concept of cupping, both

from research she had performed for articles, and from the then - recent 2016

Olympics where there were stories about Michael Phelps us ing the technique.

She agreed to the cupping, and she testified that Respondent directed her to

completely disrobe. According to her testimony, Respondent remained in the

room while she disrobed, and did not offer her a drape of any kind. There was

no test imony about what Respondent was doing while M.M. disrobed: i.e . ,

whether he turned his back, set up the equipment, or watched her. M.M.

testified that she did as Respondent asked because she ha d seen a number of

health care providers for a variety of reaso ns all of her life, and trusted them.

35. M.M. stated that Respondent instructed her to lay face up on the table

and rolled a cart with the cupping machine over to the table. 4 According to

her, Respondent explained that while Ñone breast was being suctione d, he

was performing what he called lymphatic drainage on the other breast, which

basically involved finger motions on my skin that were kind of applied in a Ï

in a rhythmic upward motion with both hands. And the idea behind it was to

stimulate blood flow and circulation in the lymph nodes of that region.Ò

36. M.M. stated that after the cupping of the first breast was completed,

Respondent moved the cup to the other breast and duplicated the process. He

then explained that he would continue to perform lymph atic drainage on the

remainder of her body, and began working his way down her body,

performing the same circular motions, including her stomach, hips, and

pelvis; down to her pubic area and groin, and eventually her genital area,

4 Respondent testified that there is not a rolling cart in the room, because the room is to o

small to accommodate one. According to him, the cupping machine sits on the table against

the wall, but has lengthy tubing.

which she testified coul d have been either accidental or purposeful contact.

M.M. testified that he grazed her buttocks and called them Ñbuns of steel,Ò as

well as referring to himself as a Ñhorny old man.Ò

37. M.M. also testified that while performing the lymphatic drainage, he

touched her genitals with his fingertips. Following the lymphatic drainage,

Respondent told M.M. that the session was over, and she could dress. M.M.

stated that he asked not to include the last portion of the visit in her article

because he was afraid of losing his license. She redressed, with Respondent

remaining in the room, and after doing so, they exchanged pleasantries and

she left the office.

38. Respondent emphatically denies M.M.Ôs allegations. He acknowledges

that he performed cupping on M.M but denied that he performed it on her

breasts. According to Respondent, he performed cupping on her abdomen to

relieve constipation. His records for November 30 state in part, Ñsm + lg.

intestines & ileocecal inflamed. Ï complained about constipation -- cup

a bdomen?Ò When M.M. was asked whether Respondent performed cupping of

her abdomen for constipation, she could not remember if she mentioned

constipation to Respondent, but it was possible, and did not remember if he

cupped her abdomen.

39. Respondent testi fied that he explained cupping to her and told her

both about uses for cupping in China, which include cupping of the breast

and of the face, but also explained it is used for different purposes in the

United States. In his written response to the allegati ons that he provided to

the Department during the investigation, he stated:

Because of her interest in health, (she has her own

health blog) and a possible future article, I

demonstrated the cupping process for her and went

into a lot of detail on how it worked and what it

was used for in China and the protocols that

cupping I had been trained in through Ace

Cupping.

With cupping, the therapist is able to bring new

blood and enhance circulation and lymph flow and

drainage in congested and tight muscles o r area of

the body.

* * *

I also shared that the Chinese used the machine to

cup womenÔs breasts and they claimed that if a

woman breast was cupped everyday for 30 days, it

would enhance circulation and lymphatic drainage

and that would bring about hea lthier breasts or

uplift them. In no way was I suggesting that we

cup her breasts and I did not do so.

40. Respondent also indicated in the investigative response that M.M.

seemed uncomfortable with the cupping procedure and that he cut it short.

Althoug h his response stated that she seemed uncomfortable with the

cupping, it also stated that she did not state that she was uncomfortable with

any procedure he employed throughout all of the craniosacral sessions,

including the November 30 session.

41. Respo ndent testified that he did not ask her to undress, but rather,

asked her to raise her shirt to the bottom of her ribcage, and to lower her

shorts to the top of her hips, so that only that strip of skin was exposed. He

placed oil on her skin, used a cup ap proximately two inches in diameter, and

moved the cup in the same direction as the digestive system in a circular

motion. M.M., by contrast, testified that no oil was used. Respondent did not

perform lymphatic drainage: while he is aware of the technique, he has not

been trained in it. A review of his continuing education records do not reveal

any classes in lymphatic drainage.

42. Respondent further testified that o nly a small portion of skin was

showing while he performed the cupping, and Respondent did n ot provide

M.M. a drape (although it is unclear that one would be necessary), and did

not leave the room while she readjusted her clothing once the procedure was

finished.

43. Respondent also denies that he asked M.M. not to include the final

portion of th e visit in her article because he was afraid he would lose his

license. At the time of the visit, there was no article in process. M.M. had

already produced two articles about RespondentÔs practice, and although

M.M. believed she wrote three, no third arti cle was produced, and there are

no emails or texts addressing a third article, like there were for the first and

second ones M.M. wrote.

44. M.M. claimed that the third article was supposed to be a

question/answer column with Respondent and a local chirop ractor, Eric

Winder, who Respondent says he does not know. It does not appear from the

investigative report that Eric Winder was interviewed, and he was not called

as a witness at hearing. Respondent likewise denies telling M.M. that she has

Ñbuns of steel ,Ò or referring to himself as a Ñhorny old man.Ò

45. There was no further contact between M.M. and Respondent for

several months. The phone logs for AT&T indicate that there were three

emails sent by Respondent to M.M. in January, but as noted previously, those

emails are not in evidence. On March 11, 2018, Respondent reached out to

M.M. by email, asking for permission to use an edited version of one of her

articles in some advertising for his practice. M.M. responded by saying, Ñ[y]es

thatÔs fine. Feel fre e to use the edited version.Ò

46. On April 14, 2018, Respondent emailed M.M. again, and stated,

Dear [M.M.]

Hope all is well with you. I want to thank you for

allowing me to use your articles in my ads. Very

effective and have brought me a number of new

clients. I would like to send you a check for $200, a

$100 each for the 2 articles in appreciation. Could

you send me your address so I can send you the

check. As my practice slows down for the summer, I

should be able to get you back in for more sessions.

With great appreciation,

Terry

To which M.M. replied,

ThatÔs kind of you to offer, but not necessary but

appreciated. If you feel compelled to send a check

(again, not necessary), you can mail it to [M.M.Ôs

home address]. However, I will tell you that IÔm

unable to come in for sessions, as I recently moved

to the other side of town, and the drive is no longer

conducive with my weekly schedule. But you are

free to continue to use the articles IÔve written

about your practice in any capacity you choose.

47. M.M. testified that she told a friend about the November 30 session

about a week after it happened, and it was her friendÔs reaction that alerted

her that what happened was not appropriate. Notes from her therapist

indicate that she stated that she d id not tell anyone for several months. 5 She

did not tell her husband for approximately four months after the incident.

Neither her husband nor the friend that M.M. stated she told about the

incident testified at hearing.

48. There are other date discrepa ncies in the therapistÔs notes as

compared to other events in this case. For example, the September 5, 2019,

entry refers to hearing from the Sarasota Police Department regarding the

incident, which is, as found below, prior to the time she even reported t he

incident to the Department of Health, who in turn contacted law

enforcement. It may be that even if the dates for the sessions in the notes are

incorrect, the inconsistencies are enough to raise concerns. This is especially

so given that the subpoena se nt to the therapist requests ALL patient

records, and the ones provided only covered the time period from August 8,

5 M.M.Ôs therapistÔs records were subpoenaed by the Department. Statements made for the

purpose of diagnosis and treatment by a pe rson seeking the diagnosis or treatment which

describe medical history, past or present symptoms, pains, sensations, or the inceptions or

general character of the cause or external source thereof, insofar as reasonably pertinent to

diagnosis or treatment, are an exception to the hearsay rule. § 90.803(4), Fla. Stat. While the

statements attributed to M.M. in her therapistsÔ notes may not be hearsay, they are not

considered in this case for the truth of the matter asserted, but simply to show that there are

differing statements regarding when M.M. shared her story with others.

2019 , through September 10, 2019, a period of time that is much shorter than

M.M. testified that she saw her therapist. 6

49. In April 2018, M.M. emailed her employer and told her about the

incident. In the emails, she states in part that he Ñended our session by

asking me to omit this portion of the treatment from my article, as he could

lose his license. I did not report the incident, and I wrote the article as he

requested, highlighting the benefits of his practice.Ò As noted above, there

was no article after the November 30 session. She also wrote in a follow - up

email that ÑOver the next couple of months, he tried calling/texting me in a

fr iendly way that suggested he viewed us as more than professional

acquaintances.Ò The telephone records do not support M.M.Ôs statement.

M.M.Ôs employer responded by terminating M.M.Ôs advertising with Natural

Awakenings and providing M.M. with the contact information for an

attorney.

50. M.M. filed her complaint with the Department on September 11, 2019,

nearly two years after the incident. She did not file a complaint with law

enforcement, but upon receiving her complaint, the Department investigator

noti fied the Sarasota Police Department on September 26, 2019. Ultimately,

no criminal charges were filed, but the decision of the State AttorneyÔs Office

has no bearing on whether or not there is a basis for discipline in this case.

51. Both M.M. and Respond ent had some inconsistencies in their stories.

RespondentÔs, in large part, appear to be based on the fact that his records for

the sessions he had with M.M. were not together, and he did not find the

records for the earlier session (i.e., his first manila folder) until after his

deposition. As noted previously, clients typically have three to six sessions, so

it was not unreasonable for Respondent to assume that he only had one folder

for M.M. , especially given that the records were requested two years aft er his

6 It may be that notes related to coupleÔs counseling were not provided because those notes

were not just about M.M. but M.M. and her husband. That does not, however, address the

incon sistencies in the timeframes reflected in the notes.

last session with M.M. His counsel turned those records over to the

Department, but not when requested in discovery, and some of those records

were not admitted as a result. 7

52. The Department takes issue with a statement Respondent made about

M .M. telling him that she was sexually assaulted in college, stating that

there is Ñno mention of sexual assault, or assault of any kind, in either set of

Patient M.M.Ôs treatment notes.Ò (PetitionerÔs Proposed Recommended Order

at 15, ¶ 111). However, give n that Petitioner successfully objected to some of

RespondentÔs records regarding M.M. being admitted into evidence, what is

in evidence does not reflect all of the records regarding M.M.Ôs sessions with

Respondent. There can be no finding that the records contain no mention of

sexual assault when , as the result of PetitionerÔs objections, not all of

RespondentÔs records are in evidence.

53. The Department also finds RespondentÔs records to be untrustworthy

because their physical appearance is somewhat dif ferent. As noted

previously, Respondent writes his notes on manila folders and writes from

edge to edge. He testified that when he tried to copy the manila folders for

the Department, some of the notes were cut off, so he rewrote what was on

the notes and provided them to the Department. There are some minor

differences in the notes and in a few places, he wrote the dates as 2019 as

opposed to 2017. Given that the records were requested in 2019, such an

error is not significant. While the copies of the reco rds are not exact, the

differences are extremely minor . Furthermore, the Department points to no

statute or rule that requires a massage therapist to have patient records at

all, much less one that dictates a format to which they must conform. Most

importa ntly, the Department does not point to any discrepancy that

7 The Department also appears to question RespondentÔs and RespondentÔs counselÔs good

faith regarding these records, stating that Respondent testified that he found the records two

to three weeks before the hearing, and yet counsel for Respondent was able to use these

records in questioning M.M. in her deposition June 22, 2021. A specific date for when

Respondent gave the records to his attorney is not in the record.

materially affects RespondentÔs account of what happened on November 3 0,

2017.

54. There are other concerns with M.M.Ôs account of the incident in

addition to those issues listed with respect to the telephone records,

discrepancies in dates, and references to an article that was not written. For

example, M.M. testified that she has had a great deal of medical procedures

performed on her, and she is accustomed to doing what medical professionals

as k of her. Kacee Homer and Lisa Caller are character witnesses who

testified on behalf of Respondent. Both are healthcare professionals who

testified that when a patient is asked to disrobe, they generally do.

Ms. Homer, a nurse, said that generally when a patient is asked to disrobe,

she leaves the room while the patient is undressing, and if possible, the

patient is draped.

55. Here, M.M. testified that Respondent asked her to disrobe, and stood

there while she did so. It seems odd that M.M., who writes a rticles about

healthcare, and by her own admission has had several medical procedures in

her life and is fairly knowledgeable regarding the medical field, would not at

least ask for a drape, or wait for Respondent to leave the room before

undressing.

56. M.M.Ôs description of the cupping and lymphatic drainage also raises

more questions than it answers. She testified that while the cup was placed

on one breast, Respondent massaged the other with both hands. That means

the cup had to remain in place based solely on the suction or pressure

provided by the cupping machine. It seems that it would be difficult for the

cupping machine to provide enough suction for the cup to remain in place on

her breast without causing discomfort or pain, and possibly bruising, but

there was no testimony that she found the experience physically painful or it

left any discernible marks.

57. Finally, the undersigned is troubled that M.M. would willingly give

her home address to a man that she claimed sexually assaulted her. It d oes

not seem plausible that she would so easily provide this type of information

to Respondent when it could enable him to make further contact with her.

58. After careful consideration of all of the evidence presented, the

undersigned finds that there is not clear and convincing evidence to support a

finding that Respondent asked M.M. to disrobe in front of him without

providing a drape.

59. There is not clear and convincing evidence that Respondent massaged

M.M.Ôs breasts, buttocks, and groin area, and touched her vagina with his

fingertips, all without a valid medical reason. Likewise, there is not clear and

convincing evidence that Respondent told M.M. that she had Ñbuns of steelÒ

or that he was a Ñhorny old man.Ò

60. The evidence failed to establish that RespondentÔs conduct toward

M.M. constitute d sexual activity outside the scope of practice, or an attempt

to engage or induce M.M. to engage in such activity.

C ONCLUSIONS OF L AW

61 . DOAH has jurisdiction over the parties and the subject matter of th is

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

62. The Department is the agency of the State of Florida charged with the

licensing and regulation of the practice of dentistry pursuant to section 20.43

and chapters 456 and 480.

63. The Department seek s to revoke RespondentÔs license to practice

massage therapy , as well as the establishment Ôs license. Therefore, the

Department must prove the allegations in the Administrative Complaints by

clear and convincing evidence. DepÔt of Banking and Fin. v. Osbor ne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 595 So. 2d 292 (Fla.

1987). As stated by the Supreme Court of Florida,

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnes ses testify must be distinctly

remembered; the testimony must be precise and

lacking in confusion as to the facts at issue. The

evidence must be of such a weight that it produces

in the mind of the trier of fact a firm belief or

conviction, without hesitan cy, 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,

429 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden of proof may be met

where, as here, the evidence is in confli ct; 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).

64. A proceeding to discipline a license is penal in nature, and penal

statutes must be construed in terms of their literal meaning. Words used by

the Legislature cannot be expanded to broaden the application of such

statutes. As a result, the provisions of law upon which this disciplinary action

is based must be strictly construed, with any ambiguity construed against the

Department. Elmariah v. DepÔt of ProfÔl Reg., 574 So. 2d 165 (Fla. 1 st DCA

1990); see also Griffis v. Fish & Wildlife Conserv. CommÔn, 57 So. 3d 929, 931

(Fla. 1 st DCA 2011); Beckett v. DepÔt of Fin. Servs. , 982 So. 2d 94, 100 (Fla.

1 st DCA 20 08).

65. The Administrative Complaint in DOAH Case No. 21 - 0180PL contains

the following charging provisions:

17. Section 480.046(1)(p), Florida Statutes (2018),

provides that a massage therapist is subject to

discipline for violating any provision of this

Chapter or Chapter 456, or any rules adopted

pursuant thereto.

18. Section 480.0485, Florida Statutes (2018),

prohibits sexual misconduct in the practice of

massage and specifically provides that:

The massage - therapist - patient relationship is

founded o n mutual trust. Sexual misconduct in

the practice of massage therapy means violation

of the massage therapist - patient relationship

through which the massage therapist uses that

relationship to induce or attempt to induce the

patient to engage, or to engage or attempt to

engage the patient, in sexual activity outside

the scope of practice or the scope of generally

accepted examination or treatment of the

patient.

19. Rule 64B7 - 26.010, (1) and (3) of the Florida

Administrative Code (2018), absolutely prohibi ts

sexual activity by any person or persons in a

massage establishment, and provides that 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 act ivity with any client. Rule 64B7 -

26.010(4), defines Ñsexual activityÒ, [in] pertinent

part as :

(4) [ A]ny direct or indirect physical contact by

any person or between persons which is

intended to erotically stimulate either person or

both or which is likel y 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, sexual activity can involve the use of any

device or object and is not dependent on

whether penetration, orgasm, or ejaculation has

occurred.

20. Respondent engaged in sexual misconduct in

the practice of massage by using the massage

therapist Ï p atient relationship to induce or

attempt to induce, or to engage or attempt to

engage Patient M.M. in sexual activity outside the

scope of practice in one or more of the following

ways:

a. By remaining in the room while Patient M.M.

disrobed;

b. By mas saging Patient M.M.Ôs breasts;

c. By massaging Patient M.M.Ôs buttocks;

d. By massaging Patient M.M.Ôs groin;

e. By commenting on Patient M.M.Ôs body;

and/or

f. By referring to himself as a Ñ horny old man.Ò

21. Based on the foregoing, Respondent vi olated

Section 480.046(1)(p), Florida Statutes (2018),

through a violation of Section 480.0485, Florida

Statutes (2018), and/or Rule 64B7 - 26.010(1) and/or

(3), Florida Administrative Code.

66. While the Administrative Complaint in Case No. 20 - 0180PL

refe rences the 2018 codification of the Florida Statutes, disciplinary

proceedings should charge the statute in effect at the time of the alleged

prohibited conduct. McCloskey v. DepÔt of Fin. Servs. , 115 So. 3d 441 (Fla. 5 th

DCA 2003).

67. The allegations in the Administrative Complaint in DOAH Case

No. 21 - 0181 are identical in all material respects, except that it references

those responsibilities and prohibitions applicable to a message establishment

as opposed to a massage therapist.

68. Rule 64B7 - 26.010, referenced in both Administrative Complaints,

provides in paragraphs (1) through (3):

(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 pe rson or persons to engage in

sexual activity in such ownerÔs massage

establishment or use such establishment to make

arrangements to engage in sexual activity in any

other place.

(3) No licensed massage therapist shall use the

therapist - client relationsh ip to engage in sexual

activity with any client or to make arrangements to

engage in sexual activity with any client.

69. As previously stated, the clear and convincing standard by which a

disciplinary proceeding must be measured is a high standard. When the

standard requires that the evidence be such that it produces in the mind of

the trier of fact a Ñfirm belief or conviction, without hesitancy, as to the truth

of the allegations sought to be established,Ò that evidence cannot leave the

trier of fact w ith more questions than answers.

70. Section 120.81(4)(a) provides that 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, the testi mony of

the victim need not be corroborated. With respect to this case, there is no

requirement that there be testimony by someone other than M.M. to

corroborate her story. By the same token, where other evidence in the record

contradicts her version of th e events, that information may and should still

be considered.

71. As discussed in the Findings of Fact, there were several instances

where M.M.Ôs testimony was contradicted by other compelling and persuasive

evidence. The evidence presented in support o f the allegations against

Respondent simply did not rise to the clear and convincing standard.

R ECOMMENDATION

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

R ECOMMENDED that the Administrative Complaints against Terrence

Grywinksi, L.M.T. , and Terrence Grywinski Massage , be dismissed.

D ONE A ND E NTERED this 5th day of November , 2021 , in Tallahassee, Leon

County, Florida.

S

L ISA S HEARER N ELSON

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 48 8 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of November , 2021 .

C OPIES F URNISHED :

Dannie L. Hart, Esquire Lance O. Leider, Esquire

Department of Health The Health Law Firm

Bin C - 65 Suite 1000

4052 Bald Cypress Way 1101 Douglas Avenue

Tallahassee, Florida 32399 - 3265 Altamonte Springs, Florida 32714

A manda I. Forbes, Esquire Andrew James Pietrylo, Esquire

The Health Law Firm Department of Health

Suite 1000 Bin C - 65

1101 Douglas Avenue 4052 Bald Cypress Way

Altamonte Springs, Florida 32714 Tallahassee, Florida 32399 - 3265

Kama Monroe, JD, Executive Director Louise St. Laurent, General Counsel

Board of Massage Therapy Department of Health

Department of Health Bin C - 65

Bin C - 06 4052 Bald Cypress Way

4052 Bald Cypress Way Tallahassee, Florida 32399

Tallahassee, Florida 32399 - 3257

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions t o this Recommended

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

case.