21-000181
Department Of Health, Board Of Massage Therapy vs.
Terrence Grywinski Massage
Status: Closed
Recommended Order on Friday, November 5, 2021.
Recommended Order on Friday, November 5, 2021.
1S TATE OF F LORIDA
6D IVISION OF A DMINISTRATIVE H EARINGS
13D EPARTMENT OF H EALTH , B OARD OF
21M ASSAGE T HERAPY ,
25Petitioner ,
26vs. Case No. 21 - 0180PL
32T ERRENCE G RYWINSKI , L.M.T. ,
37Respondent.
38/
39D EPARTMENT OF H EALTH , B O ARD OF
48M ASSAGE T HERAPY ,
52Petitioner,
53vs. Case No. 21 - 0181
59T ERRENCE G RYWINSKI M ASSAGE ,
65Respondent.
66/
67R ECOMMENDED O RDER
71On July 12 and 21, 2021, Admi nistrative Law Judge Lisa Shearer Nelson
84of the Florida Division of Administrative Hearings (DOAH) conducted a
94disputed - fact hearing by Zoom technology.
101A PPEARANCES
103For Petitioner: Dannie L. Hart, Esquire
109Andrew James Pietrylo, Esquire
113Depar tment of Health
117B in C - 65
1224052 Bald Cypress Way
126Tallahassee, Florida 32399 - 3265
131For Respondent: Lance O. Leider, Esquire
137Amanda I. Forbes, Esquire
141The Health Law Firm
145Suite 1000
1471101 Douglas Avenue
150Altamon te Springs, Florida 3271 4
156S TATEMENT OF T HE I SSUE S
164The issues to be resolved are whether Respondent committed the offenses
175charged in the Administrative Complaints and, if so, what penalties should
186be imposed.
188P RELIMINARY S TATEMENT
192On October 28, 2020, Petitioner, Department of Health (Petitioner or the
203Department) filed Administrative Complaints against Terrence Grywinski,
210L.M.T., and Terrence Grywinski Massage, alleging that Terrence Grywinski
219had committed sexual misconduct in violation of section s 48 0.046(1)(p) and
231480.0485, Florida Statutes, as defined by Florida Administrative Code
240Rule 64B7 - 26.010(4). 1 Mr. Grywinski filed Election of Rights forms for each of
255the Administrative Complaints disputing the allegations against him, and on
265January 15, 202 1, the cases were referred to DOAH for the assignment of an
280administrative law judge.
283O n January 28, 2021, the cases were consolidated and the following day, a
297Notice of Hearing was issued scheduling them for hearing on April 6, 2021,
310by Zoom conference. Both parties requested continuances, based on good
320cause, and the hearing was rescheduled a number of times. Ultimately, the
332hearing commenced on July 12, 2021, and reconvened and finished on
3431 The Administrative Complaint in DOH Case No. 2019 - 39386 and docketed as DOAH Case
359No. 21 - 0180PL is against Mr. GrywinskiÔs massage therapy license. The Administrative
372Complaint in DOH Case No. 2019 - 39761 and docketed as DOAH Case No. 21 - 0181 is against
391the premises permit for Terrence Grywinski Massage. The factual basis for both
403Administrative Complaints is the same, and for ease of reference, Responden ts will be
417referred to in the singular, i.e., Mr. Grywinski or Respondent.
427July 21, 2021. On July 6, 2021, the parties filed a Joint Pre - He aring
443Stipulation in which they identified certain undisputed facts that would
453require no evidence at hearing. Those stipulated facts, where relevant, are
464included in the F indings of F act below.
473Joint Exhibits 1 and 2 were admitted into evidence. Patient M.M. and
485DOH Investigative Supervisor Marisol Allen testified on behalf of Petitioner,
495and PetitionerÔs Exhibits numbered 1 through 5 were admitted. Respondent,
505Kacee Lynn Homer, and Lisa Caller testified on behalf of Respondent, and
517RespondentÔs Exhibits numbered R - 1 through R - 3, Bates stamp pages 47 - 48
533and 53 through 58 of R - 4, R - 5 through R - 21, and R - 23 through R - 25 were
557admitted into evidence.
560The three - volume Transcript of the proceedings was filed with DOAH on
573September 20, 2021. The deadline for fi ling proposed recommended orders
584was extended for good cause, and the Proposed Recommended Orders were
595timely filed. All references to the Florida Statutes are to the 2017
607codification, unless otherwise indicated.
611F INDINGS OF F ACT
6161. Petitioner is the sta te agency charged with the licensing and regulation
629of massage therapy practice pursuant to section 20.43 and chapters 456 and
641480, Florida Statutes.
6442. Respondent , Terrence Grywinski , is a licensed massage therapist in the
655State of Florida and holds licen se number MA 6049.
6653. RespondentÔs mailing address is 6419 Meandering Way, Lakewood
674Ranch, Florida 34202.
6774. Respondent , Terrence Grywinski Massage , is licensed as a massage
687establishment in the State of Florida and holds license number MM 18059.
6995. The es tablishmentÔs physical location is 1188 Tamiami Trail, Sarasota,
710Florida 34236, and this location is the location where all appointments
721relevant to the facts in this case were scheduled and conducted.
7326. Respondent has been licensed to practice massage th erapy in Florida
744since on or about July 9, 1985. The establishment was licensed as a massage
758establishment on or about March 20, 2006. Respondent is the sole owner and
771sole employee of the establishment, which conducts business as Advanced
781Craniosacral The rapy. No evidence was presented to indicate that either
792license has been previously disciplined by the Board.
8007. As a licensed massage therapist, Respondent is subject to the state of
813Florida laws and rules governing licensed massage therapists, and the
823es tablishment that he owns is likewise subject to the laws and rules
836governing massage establishments.
8398. Respondent does not practice traditional massage therapy and has not
850done so since approximately 1995. He was trained in a modality called
862craniosacral therapy (CST) in 1995, and has performed that modality
872exclusively since that time.
8769. According to Respondent, trauma of any kind, whether emotional or
887physical, causes a tremendous force of energy to come into the body, and the
901body tries to protect it self by ÑshorteningÒ and isolating the energy. This
914isolation of the energy created by trauma is what creates areas of tension
927within the body.
93010. The theory behind CST is that the body will correct itself when it feels
945Ñsafe.Ò CST works with the fascia c onnective tissue that attaches muscles to
958the bone, and encases a personÔs organs, brain, and spinal cord. CST uses
971very gentle holds to create a safe space for the body, which will help the body
987slip into a corrective reorganizational healing mode. When a person
997undergoes CST, the fascia will start to release and the person will feel a
1011Ñletting goÒ or release in the tissue. CST does not involve manipulation of the
1025tissue, but rather, a series of holds that may last in any one place for five to
1042ten minutes. The amount of pressure applied is Ñwhatever pressure the body
1054tells you it needs,Ò but generally no more than five grams of pressure.
1068According to Faith Buhler, who testified by deposition as an expert for the
1081Department, when there is a release, there is a different pulse in the body.
109511. Respondent trained in CST through the Upledger Institute, which was
1106established by John Upledger. Respondent has received extensive continuing
1115education in CST and the majority of his statutorily required continuing
1126educ ation deals with the performance of this modality.
113512. Typically, RespondentÔs first - time clients make an appointment for
1146CST and are given a code to enter the second floor of the building where
1161RespondentÔs office is located. He greets patients in a commo n waiting room
1174and takes them to the one - room office where therapy takes place. The office
1189contains two chairs, a massage table, a small side table where a ÑcuppingÒ
1202machine is stored, and a bookshelf.
120813. New clients are asked to fill out an intake sheet that requests some
1222basic information about the client and his or her reason for seeking CST.
1235Respondent uses the information on the intake sheet to speak with the client
1248about his or her needs, and places it in a manila folder that he uses to take
1265notes. The notes are on the manila folder itself, as opposed to paper contained
1279in the folder. If additional space is needed for subsequent visits, he simply
1292gets another manila folder and, hopefully, keeps the folders about a
1303particular client together. Responde nt admits he is not very organized, and
1315maintaining his files is not his specialty. Most clients have three to six
1328sessions with Respondent, so it is conceivable that for most clients, a single
1341folder would be sufficient.
134514. After Respondent speaks with t he client, the client lies down on a
1359table during the therapy, fully clothed, facing up. Typically, Respondent is
1370the only person in the room during CST sessions, and the sessions last
1383approximately an hour and a half. He will assess a client by lifting ea ch leg to
1400compare length and will rotate the legs to assess range of motion through the
1414hips. After assessing a client, Respondent goes through a series of gentle
1426holds, generally using the same protocol each time, with some variation
1437depending on the need of the client. He testified that he will tell clients what
1452he is going to do and where he is going to place his hands, and advises clients
1469that if at any time they feel uncomfortable with what he is doing or where he
1485is placing his hands, the client shoul d feel free to tell him.
14981 5 . Respondent will review the notes he made from prior visits at the
1513beginning of each session and will discuss any changes that have taken place
1526since the last session. Many times, the notes that Respondent keeps will
1538include sen sitive personal information related by a client if that information
1550may reveal a source of trauma.
155616. During the time period relevant to these proceedings, Respondent
1566advertised his practice in an alternative medicine magazine called ÑNatural
1576Awakenings.Ò M.M. is the managing editor of Natural Awakenings. As part of
1588her job, she writes articles and conducts interviews of professionals who
1599advertise in the magazine.
160317. M.M.Ôs supervisor, Janet Lindsay, assigned her the task of
1613interviewing and writing an a rticle about Respondent and his practice. M.M.
1625was told that Respondent practiced CST.
163118. On May 1, 201 7, M.M. emailed Respondent and told him that Natural
1645Awakenings wanted to feature him in an article for the June issue, and sent
1659him a series of questio ns to answer, along with her telephone number.
1672Respondent did not immediately respond, so on May 8, 2017, M.M. emailed
1684him again to make sure he received the first email. Respondent called M.M.
1697the next day and suggested that M.M. come in a nd receive a CST treatment
1712at no charge, so that she would have a better understanding of the modality
1726when writing the article. M.M. accepted the offer and made an appointment
1738to see Respondent on May 12, 2017.
174519. During this first session, M.M. interviewed Respondent f or the article,
1757filled out an intake sheet, and provided a medical history. Respondent asked
1769her some questions, then directed her to remove her shoes and lie on the
1783table, fully clothed. Respondent explained what he was doing and where he
1795would place his hands as he performed the various holds.
180520. M.M.Ôs description of the first session is consistent with RespondentÔs
1816description of how he conducts all CST sessions. There is no allegation that
1829any improper or unprofessional conduct took place at the May 12, 2017,
1841session.
184221. At the end of the session, Respondent offered to continue providing
1854free sessions to M.M. in exchange for M.M. writing additional articles for the
1867magazine about his practice. M.M. agreed to the arrangement. She testified
1878that these kinds of arrangements are not the norm, but that it was not the
1893first time it had occurred.
189822. M.M. testified that she felt better after having the CST session, in that
1912her chronic pain was better, her body less tense, and her breathing easier,
1925especially when running. These benefits, however, were temporary.
193323. M.M. wrote an article about the first session, which she provided to
1946Respondent for review and approval before it was published. Respondent
1956appreciated the article, felt that it was well written, and benefited his
1968practice.
196924. On May 18, 2017, M.M. provided the final copy of the article for
1983publishing. There was no indication from the evidence presented that the
1994partiesÔ interaction at the initial visit or the exchanges regarding the article
2006in th e week following the visit were anything but professional.
201725. M.M. saw Respondent for additional sessions on June 9, 2017;
2028September 26, 2017; November 3, 2017; and November 30, 2017. M.M. did
2040not find anything about these visits to be unprofessional or o ut of the
2054ordinary, with the exception of the last visit on November 30, 2017.
206626. M.M. and RespondentÔs accounts of the November 30, 2017, visit are
2078not reconcilable. Respondent testified that the visit was much like previous
2089visits, while M.M. contends t he visit involved unwanted and inappropriate
2100touching and inappropriate commentary about her body.
210727. Leading up to the final visit, M.M. testified that RespondentÔs
2118behavior seemed more familiar and personal than the behavior of a health
2130care provider. S he claimed that he started calling and emailing her late at
2144night, and referred to her as his Ñmuse.Ò She specifically indicated that one
2157call came on a weekend, and she chose not to answer it because she was with
2173her sister and did not want to interject w ork issues into her weekend.
218728. Phone records from the providers for both M.M. and RespondentÔs
2198phone numbers reveal only one call made from Respondent to M.M., and that
2211call took place May 9, 2017, before her first appointment with him.
222329. The Departmen t did not produce any of the emails M.M. claimed that
2237Respondent made to her. Respondent produced most , but not all , of the
2249emails between the two. He testified that he provided to the Department all
2262of the emails he found at the time he responded to the c omplaint, and that
2278any omissions were unintentional. It is noted that the subpoena issued to
2290Respondent requests patient records, but does not request emails. The
2300request for production issued by the Department to Respondent, which is on
2312the docket for thi s case, does not specifically request emails, but instead
2325requests documents to be used at hearing. None of the emails in evidence
2338contain any improper statements. All of them involve either questions about
2349RespondentÔs practice, or review of the articles that M.M. wrote about his
2361practice. 2
23632 During hearing, the Department showed Respondent a copy of an email he provided in
2378response to the DepartmentÔs request for production. The email appears, from the portions
2391read a t hearing, to involve an article that Respondent wrote about his practice. The
2406Department did not offer the email into evidence, but asked Respondent to read where the
2421email apparently stated, Ñboth of you are my angels.Ò Respondent responded by saying, ÑY es,
2436I said that, but I never called her an angel in any session. I was complimentary. Both
2453Lindsay Ï or Janet Lindsay and Ms. M.M. were very helpful in my professional life, and I see
2471nothing wrong with referring them to angels who are helping me in my pro fession. And if I
2489said I never called anybody an angel, I couldnÔt remember that email until you brought it up
2506now.Ò
250730. Phone records between M.M. and Respondent do indicate that
2517Respondent contacted M.M. either by email or by text, late on some evening s .
2532However, up until March of 2018, well after the final appointment, these
2544contac ts were in response to emails sent by M.M. to Respondent. The
2557telephone records reference emails sent by Respondent to M.M. on
2567January 17 and 23, 2018, a few months after M.M.Ôs last visit. However,
2580neither Respondent nor M.M. were asked about these emails by date, and the
2593record contains no information regarding their contents.
260031. The weekend before the November 30, 2017, visit was Thanksgiving
2611weekend, and M.M. and her husband had a lengthy car ride returning from
2624Atlanta where they spent Thanksgiving. F or whatever reason, M.M. had a
2636panic attack during the car ride, and remained especially tense at her
2648appointment with Respondent. She recalled that the discussion portion of the
2659visit seemed shorter, and that Respondent used a pendulum to detect energy
2671be fore commencing with the CST. 3 He noticed that her chest area was more
2686closed then usual and asked her if there was some reason why she had
2700tightness there.
270232. M.M. testified that she explained to Respondent that she had always
2714had body image issues, spe cifically with her chest. She stated that
2726Respondent offered to address the tension with a modality called Ñcupping,Ò
2738which would also make her breasts look Ñperkier.Ò
274633. Cupping is a modality that Respondent acknowledges using on
2756occasion. He has cuppin g equipment that has a variety of cup sizes and is
2771The Department also contends in its Proposed Recommended Order that ÑGrywinski has no
2784explanation for why he did not provide the Janua ry 2018 emails.Ò However, the record does
2800not reflect that the Department ever specifically asked Mr. Grywinski a question about those
2814emails, either at hearing or in his deposition, so as to require an explanation about them.
28303 The use of the pendulum is a technique that Respondent developed himself. It supposedly
2845detects energy in the body, or an absence thereof, and he also used this technique in a prior
2863session.
2864made so that one can use one or two cups at a time, although he generally
2880uses only one. The machine has tubing that attaches to both the machine and
2894the cup(s), and the amount of pressure to create suct ion can be changed using
2909a dial on the machine.
291434. M.M. testified that she was familiar with the concept of cupping, both
2927from research she had performed for articles, and from the then - recent 2016
2941Olympics where there were stories about Michael Phelps us ing the technique.
2953She agreed to the cupping, and she testified that Respondent directed her to
2966completely disrobe. According to her testimony, Respondent remained in the
2976room while she disrobed, and did not offer her a drape of any kind. There was
2992no test imony about what Respondent was doing while M.M. disrobed: i.e . ,
3005whether he turned his back, set up the equipment, or watched her. M.M.
3018testified that she did as Respondent asked because she ha d seen a number of
3033health care providers for a variety of reaso ns all of her life, and trusted them.
304935. M.M. stated that Respondent instructed her to lay face up on the table
3063and rolled a cart with the cupping machine over to the table. 4 According to
3078her, Respondent explained that while Ñone breast was being suctione d, he
3090was performing what he called lymphatic drainage on the other breast, which
3102basically involved finger motions on my skin that were kind of applied in a Ï
3117in a rhythmic upward motion with both hands. And the idea behind it was to
3132stimulate blood flow and circulation in the lymph nodes of that region.Ò
314436. M.M. stated that after the cupping of the first breast was completed,
3157Respondent moved the cup to the other breast and duplicated the process. He
3170then explained that he would continue to perform lymph atic drainage on the
3183remainder of her body, and began working his way down her body,
3195performing the same circular motions, including her stomach, hips, and
3205pelvis; down to her pubic area and groin, and eventually her genital area,
32184 Respondent testified that there is not a rolling cart in the room, because the room is to o
3237small to accommodate one. According to him, the cupping machine sits on the table against
3252the wall, but has lengthy tubing.
3258which she testified coul d have been either accidental or purposeful contact.
3270M.M. testified that he grazed her buttocks and called them Ñbuns of steel,Ò as
3285well as referring to himself as a Ñhorny old man.Ò
329537. M.M. also testified that while performing the lymphatic drainage, he
3306touched her genitals with his fingertips. Following the lymphatic drainage,
3316Respondent told M.M. that the session was over, and she could dress. M.M.
3329stated that he asked not to include the last portion of the visit in her article
3345because he was afraid of losing his license. She redressed, with Respondent
3357remaining in the room, and after doing so, they exchanged pleasantries and
3369she left the office.
337338. Respondent emphatically denies M.M.Ôs allegations. He acknowledges
3381that he performed cupping on M.M but denied that he performed it on her
3395breasts. According to Respondent, he performed cupping on her abdomen to
3406relieve constipation. His records for November 30 state in part, Ñsm + lg.
3419intestines & ileocecal inflamed. Ï complained about constipation -- cup
3429a bdomen?Ò When M.M. was asked whether Respondent performed cupping of
3441her abdomen for constipation, she could not remember if she mentioned
3452constipation to Respondent, but it was possible, and did not remember if he
3465cupped her abdomen.
346839. Respondent testi fied that he explained cupping to her and told her
3481both about uses for cupping in China, which include cupping of the breast
3494and of the face, but also explained it is used for different purposes in the
3509United States. In his written response to the allegati ons that he provided to
3523the Department during the investigation, he stated:
3530Because of her interest in health, (she has her own
3540health blog) and a possible future article, I
3548demonstrated the cupping process for her and went
3556into a lot of detail on how it worked and what it
3568was used for in China and the protocols that
3577cupping I had been trained in through Ace
3585Cupping.
3586With cupping, the therapist is able to bring new
3595blood and enhance circulation and lymph flow and
3603drainage in congested and tight muscles o r area of
3613the body.
3615* * *
3618I also shared that the Chinese used the machine to
3628cup womenÔs breasts and they claimed that if a
3637woman breast was cupped everyday for 30 days, it
3646would enhance circulation and lymphatic drainage
3652and that would bring about hea lthier breasts or
3661uplift them. In no way was I suggesting that we
3671cup her breasts and I did not do so.
368040. Respondent also indicated in the investigative response that M.M.
3690seemed uncomfortable with the cupping procedure and that he cut it short.
3702Althoug h his response stated that she seemed uncomfortable with the
3713cupping, it also stated that she did not state that she was uncomfortable with
3727any procedure he employed throughout all of the craniosacral sessions,
3737including the November 30 session.
374241. Respo ndent testified that he did not ask her to undress, but rather,
3756asked her to raise her shirt to the bottom of her ribcage, and to lower her
3772shorts to the top of her hips, so that only that strip of skin was exposed. He
3789placed oil on her skin, used a cup ap proximately two inches in diameter, and
3804moved the cup in the same direction as the digestive system in a circular
3818motion. M.M., by contrast, testified that no oil was used. Respondent did not
3831perform lymphatic drainage: while he is aware of the technique, he has not
3844been trained in it. A review of his continuing education records do not reveal
3858any classes in lymphatic drainage.
386342. Respondent further testified that o nly a small portion of skin was
3876showing while he performed the cupping, and Respondent did n ot provide
3888M.M. a drape (although it is unclear that one would be necessary), and did
3902not leave the room while she readjusted her clothing once the procedure was
3915finished.
391643. Respondent also denies that he asked M.M. not to include the final
3929portion of th e visit in her article because he was afraid he would lose his
3945license. At the time of the visit, there was no article in process. M.M. had
3960already produced two articles about RespondentÔs practice, and although
3969M.M. believed she wrote three, no third arti cle was produced, and there are
3983no emails or texts addressing a third article, like there were for the first and
3998second ones M.M. wrote.
400244. M.M. claimed that the third article was supposed to be a
4014question/answer column with Respondent and a local chirop ractor, Eric
4024Winder, who Respondent says he does not know. It does not appear from the
4038investigative report that Eric Winder was interviewed, and he was not called
4050as a witness at hearing. Respondent likewise denies telling M.M. that she has
4063Ñbuns of steel ,Ò or referring to himself as a Ñhorny old man.Ò
407645. There was no further contact between M.M. and Respondent for
4087several months. The phone logs for AT&T indicate that there were three
4099emails sent by Respondent to M.M. in January, but as noted previously, those
4112emails are not in evidence. On March 11, 2018, Respondent reached out to
4125M.M. by email, asking for permission to use an edited version of one of her
4140articles in some advertising for his practice. M.M. responded by saying, Ñ[y]es
4152thatÔs fine. Feel fre e to use the edited version.Ò
416246. On April 14, 2018, Respondent emailed M.M. again, and stated,
4173Dear [M.M.]
4175Hope all is well with you. I want to thank you for
4187allowing me to use your articles in my ads. Very
4197effective and have brought me a number of new
4206clients. I would like to send you a check for $200, a
4218$100 each for the 2 articles in appreciation. Could
4227you send me your address so I can send you the
4238check. As my practice slows down for the summer, I
4248should be able to get you back in for more sessions.
4259With great appreciation,
4262Terry
4263To which M.M. replied,
4267ThatÔs kind of you to offer, but not necessary but
4277appreciated. If you feel compelled to send a check
4286(again, not necessary), you can mail it to [M.M.Ôs
4295home address]. However, I will tell you that IÔm
4304unable to come in for sessions, as I recently moved
4314to the other side of town, and the drive is no longer
4326conducive with my weekly schedule. But you are
4334free to continue to use the articles IÔve written
4343about your practice in any capacity you choose.
435147. M.M. testified that she told a friend about the November 30 session
4364about a week after it happened, and it was her friendÔs reaction that alerted
4378her that what happened was not appropriate. Notes from her therapist
4389indicate that she stated that she d id not tell anyone for several months. 5 She
4405did not tell her husband for approximately four months after the incident.
4417Neither her husband nor the friend that M.M. stated she told about the
4430incident testified at hearing.
443448. There are other date discrepa ncies in the therapistÔs notes as
4446compared to other events in this case. For example, the September 5, 2019,
4459entry refers to hearing from the Sarasota Police Department regarding the
4470incident, which is, as found below, prior to the time she even reported t he
4485incident to the Department of Health, who in turn contacted law
4496enforcement. It may be that even if the dates for the sessions in the notes are
4512incorrect, the inconsistencies are enough to raise concerns. This is especially
4523so given that the subpoena se nt to the therapist requests ALL patient
4536records, and the ones provided only covered the time period from August 8,
45495 M.M.Ôs therapistÔs records were subpoenaed by the Department. Statements made for the
4562purpose of diagnosis and treatment by a pe rson seeking the diagnosis or treatment which
4577describe medical history, past or present symptoms, pains, sensations, or the inceptions or
4590general character of the cause or external source thereof, insofar as reasonably pertinent to
4604diagnosis or treatment, are an exception to the hearsay rule. § 90.803(4), Fla. Stat. While the
4620statements attributed to M.M. in her therapistsÔ notes may not be hearsay, they are not
4635considered in this case for the truth of the matter asserted, but simply to show that there are
4653differing statements regarding when M.M. shared her story with others.
46632019 , through September 10, 2019, a period of time that is much shorter than
4677M.M. testified that she saw her therapist. 6
468549. In April 2018, M.M. emailed her employer and told her about the
4698incident. In the emails, she states in part that he Ñended our session by
4712asking me to omit this portion of the treatment from my article, as he could
4727lose his license. I did not report the incident, and I wrote the article as he
4743requested, highlighting the benefits of his practice.Ò As noted above, there
4754was no article after the November 30 session. She also wrote in a follow - up
4770email that ÑOver the next couple of months, he tried calling/texting me in a
4784fr iendly way that suggested he viewed us as more than professional
4796acquaintances.Ò The telephone records do not support M.M.Ôs statement.
4805M.M.Ôs employer responded by terminating M.M.Ôs advertising with Natural
4814Awakenings and providing M.M. with the contact information for an
4824attorney.
482550. M.M. filed her complaint with the Department on September 11, 2019,
4837nearly two years after the incident. She did not file a complaint with law
4851enforcement, but upon receiving her complaint, the Department investigator
4860noti fied the Sarasota Police Department on September 26, 2019. Ultimately,
4871no criminal charges were filed, but the decision of the State AttorneyÔs Office
4884has no bearing on whether or not there is a basis for discipline in this case.
490051. Both M.M. and Respond ent had some inconsistencies in their stories.
4912RespondentÔs, in large part, appear to be based on the fact that his records for
4927the sessions he had with M.M. were not together, and he did not find the
4942records for the earlier session (i.e., his first manila folder) until after his
4955deposition. As noted previously, clients typically have three to six sessions, so
4967it was not unreasonable for Respondent to assume that he only had one folder
4981for M.M. , especially given that the records were requested two years aft er his
49956 It may be that notes related to coupleÔs counseling were not provided because those notes
5011were not just about M.M. but M.M. and her husband. That does not, however, address the
5027incon sistencies in the timeframes reflected in the notes.
5036last session with M.M. His counsel turned those records over to the
5048Department, but not when requested in discovery, and some of those records
5060were not admitted as a result. 7
506752. The Department takes issue with a statement Respondent made about
5078M .M. telling him that she was sexually assaulted in college, stating that
5091there is Ñno mention of sexual assault, or assault of any kind, in either set of
5107Patient M.M.Ôs treatment notes.Ò (PetitionerÔs Proposed Recommended Order
5115at 15, ¶ 111). However, give n that Petitioner successfully objected to some of
5129RespondentÔs records regarding M.M. being admitted into evidence, what is
5139in evidence does not reflect all of the records regarding M.M.Ôs sessions with
5152Respondent. There can be no finding that the records contain no mention of
5165sexual assault when , as the result of PetitionerÔs objections, not all of
5177RespondentÔs records are in evidence.
518253. The Department also finds RespondentÔs records to be untrustworthy
5192because their physical appearance is somewhat dif ferent. As noted
5202previously, Respondent writes his notes on manila folders and writes from
5213edge to edge. He testified that when he tried to copy the manila folders for
5228the Department, some of the notes were cut off, so he rewrote what was on
5243the notes and provided them to the Department. There are some minor
5255differences in the notes and in a few places, he wrote the dates as 2019 as
5271opposed to 2017. Given that the records were requested in 2019, such an
5284error is not significant. While the copies of the reco rds are not exact, the
5299differences are extremely minor . Furthermore, the Department points to no
5310statute or rule that requires a massage therapist to have patient records at
5323all, much less one that dictates a format to which they must conform. Most
5337importa ntly, the Department does not point to any discrepancy that
53487 The Department also appears to question RespondentÔs and RespondentÔs counselÔs good
5360faith regarding these records, stating that Respondent testified that he found the records two
5374to three weeks before the hearing, and yet counsel for Respondent was able to use these
5390records in questioning M.M. in her deposition June 22, 2021. A specific date for when
5405Respondent gave the records to his attorney is not in the record.
5417materially affects RespondentÔs account of what happened on November 3 0,
54282017.
542954. There are other concerns with M.M.Ôs account of the incident in
5441addition to those issues listed with respect to the telephone records,
5452discrepancies in dates, and references to an article that was not written. For
5465example, M.M. testified that she has had a great deal of medical procedures
5478performed on her, and she is accustomed to doing what medical professionals
5490as k of her. Kacee Homer and Lisa Caller are character witnesses who
5503testified on behalf of Respondent. Both are healthcare professionals who
5513testified that when a patient is asked to disrobe, they generally do.
5525Ms. Homer, a nurse, said that generally when a patient is asked to disrobe,
5539she leaves the room while the patient is undressing, and if possible, the
5552patient is draped.
555555. Here, M.M. testified that Respondent asked her to disrobe, and stood
5567there while she did so. It seems odd that M.M., who writes a rticles about
5582healthcare, and by her own admission has had several medical procedures in
5594her life and is fairly knowledgeable regarding the medical field, would not at
5607least ask for a drape, or wait for Respondent to leave the room before
5621undressing.
562256. M.M.Ôs description of the cupping and lymphatic drainage also raises
5633more questions than it answers. She testified that while the cup was placed
5646on one breast, Respondent massaged the other with both hands. That means
5658the cup had to remain in place based solely on the suction or pressure
5672provided by the cupping machine. It seems that it would be difficult for the
5686cupping machine to provide enough suction for the cup to remain in place on
5700her breast without causing discomfort or pain, and possibly bruising, but
5711there was no testimony that she found the experience physically painful or it
5724left any discernible marks.
572857. Finally, the undersigned is troubled that M.M. would willingly give
5739her home address to a man that she claimed sexually assaulted her. It d oes
5754not seem plausible that she would so easily provide this type of information
5767to Respondent when it could enable him to make further contact with her.
578058. After careful consideration of all of the evidence presented, the
5791undersigned finds that there is not clear and convincing evidence to support a
5804finding that Respondent asked M.M. to disrobe in front of him without
5816providing a drape.
581959. There is not clear and convincing evidence that Respondent massaged
5830M.M.Ôs breasts, buttocks, and groin area, and touched her vagina with his
5842fingertips, all without a valid medical reason. Likewise, there is not clear and
5855convincing evidence that Respondent told M.M. that she had Ñbuns of steelÒ
5867or that he was a Ñhorny old man.Ò
587560. The evidence failed to establish that RespondentÔs conduct toward
5885M.M. constitute d sexual activity outside the scope of practice, or an attempt
5898to engage or induce M.M. to engage in such activity.
5908C ONCLUSIONS OF L AW
591361 . DOAH has jurisdiction over the parties and the subject matter of th is
5928proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
593562. The Department is the agency of the State of Florida charged with the
5949licensing and regulation of the practice of dentistry pursuant to section 20.43
5961and chapters 456 and 480.
596663. The Department seek s to revoke RespondentÔs license to practice
5977massage therapy , as well as the establishment Ôs license. Therefore, the
5988Department must prove the allegations in the Administrative Complaints by
5998clear and convincing evidence. DepÔt of Banking and Fin. v. Osbor ne Stern
6011and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 595 So. 2d 292 (Fla.
60271987). As stated by the Supreme Court of Florida,
6036Clear and convincing evidence requires that the
6043evidence must be found to be credible; the facts to
6053which the witnes ses testify must be distinctly
6061remembered; the testimony must be precise and
6068lacking in confusion as to the facts at issue. The
6078evidence must be of such a weight that it produces
6088in the mind of the trier of fact a firm belief or
6100conviction, without hesitan cy, as to the truth of the
6110allegations sought to be established.
6115In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v. Walker,
6128429 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden of proof may be met
6144where, as here, the evidence is in confli ct; however, Ñit seems to preclude
6158evidence that is ambiguous.Ò Westinghouse Elec. Corp. v. Shuler Bros. ,
6168590 So. 2d 986, 988 (Fla. 1st DCA 1991).
617764. A proceeding to discipline a license is penal in nature, and penal
6190statutes must be construed in terms of their literal meaning. Words used by
6203the Legislature cannot be expanded to broaden the application of such
6214statutes. As a result, the provisions of law upon which this disciplinary action
6227is based must be strictly construed, with any ambiguity construed against the
6239Department. Elmariah v. DepÔt of ProfÔl Reg., 574 So. 2d 165 (Fla. 1 st DCA
62541990); see also Griffis v. Fish & Wildlife Conserv. CommÔn, 57 So. 3d 929, 931
6269(Fla. 1 st DCA 2011); Beckett v. DepÔt of Fin. Servs. , 982 So. 2d 94, 100 (Fla.
62861 st DCA 20 08).
629165. The Administrative Complaint in DOAH Case No. 21 - 0180PL contains
6303the following charging provisions:
630717. Section 480.046(1)(p), Florida Statutes (2018),
6313provides that a massage therapist is subject to
6321discipline for violating any provision of this
6328Chapter or Chapter 456, or any rules adopted
6336pursuant thereto.
633818. Section 480.0485, Florida Statutes (2018),
6344prohibits sexual misconduct in the practice of
6351massage and specifically provides that:
6356The massage - therapist - patient relationship is
6364founded o n mutual trust. Sexual misconduct in
6372the practice of massage therapy means violation
6379of the massage therapist - patient relationship
6386through which the massage therapist uses that
6393relationship to induce or attempt to induce the
6401patient to engage, or to engage or attempt to
6410engage the patient, in sexual activity outside
6417the scope of practice or the scope of generally
6426accepted examination or treatment of the
6432patient.
643319. Rule 64B7 - 26.010, (1) and (3) of the Florida
6444Administrative Code (2018), absolutely prohibi ts
6450sexual activity by any person or persons in a
6459massage establishment, and provides that no
6465licensed massage therapist shall use the therapist -
6473client relationship to engage in sexual activity with
6481any client or to make arrangements to engage in
6490sexual act ivity with any client. Rule 64B7 -
649926.010(4), defines Ñsexual activityÒ, [in] pertinent
6505part as :
6508(4) [ A]ny direct or indirect physical contact by
6517any person or between persons which is
6524intended to erotically stimulate either person or
6531both or which is likel y to cause such stimulation
6541and includes sexual intercourse, fellatio,
6546cunnilingus, masturbation, or anal intercourse.
6551For purposes of this subsection, masturbation
6557means the manipulation of any body tissue with
6565the intent to cause sexual arousal. As used
6573herein, sexual activity can involve the use of any
6582device or object and is not dependent on
6590whether penetration, orgasm, or ejaculation has
6596occurred.
659720. Respondent engaged in sexual misconduct in
6604the practice of massage by using the massage
6612therapist Ï p atient relationship to induce or
6620attempt to induce, or to engage or attempt to
6629engage Patient M.M. in sexual activity outside the
6637scope of practice in one or more of the following
6647ways:
6648a. By remaining in the room while Patient M.M.
6657disrobed;
6658b. By mas saging Patient M.M.Ôs breasts;
6665c. By massaging Patient M.M.Ôs buttocks;
6671d. By massaging Patient M.M.Ôs groin;
6677e. By commenting on Patient M.M.Ôs body;
6684and/or
6685f. By referring to himself as a Ñ horny old man.Ò
669621. Based on the foregoing, Respondent vi olated
6704Section 480.046(1)(p), Florida Statutes (2018),
6709through a violation of Section 480.0485, Florida
6716Statutes (2018), and/or Rule 64B7 - 26.010(1) and/or
6724(3), Florida Administrative Code.
672866. While the Administrative Complaint in Case No. 20 - 0180PL
6739refe rences the 2018 codification of the Florida Statutes, disciplinary
6749proceedings should charge the statute in effect at the time of the alleged
6762prohibited conduct. McCloskey v. DepÔt of Fin. Servs. , 115 So. 3d 441 (Fla. 5 th
6777DCA 2003).
677967. The allegations in the Administrative Complaint in DOAH Case
6789No. 21 - 0181 are identical in all material respects, except that it references
6803those responsibilities and prohibitions applicable to a message establishment
6812as opposed to a massage therapist.
681868. Rule 64B7 - 26.010, referenced in both Administrative Complaints,
6828provides in paragraphs (1) through (3):
6834(1) Sexual activity by any person or persons in any
6844massage establishment is absolutely prohibited.
6849(2) No massage establishment owner shall engage
6856in or permit any pe rson or persons to engage in
6867sexual activity in such ownerÔs massage
6873establishment or use such establishment to make
6880arrangements to engage in sexual activity in any
6888other place.
6890(3) No licensed massage therapist shall use the
6898therapist - client relationsh ip to engage in sexual
6907activity with any client or to make arrangements to
6916engage in sexual activity with any client.
692369. As previously stated, the clear and convincing standard by which a
6935disciplinary proceeding must be measured is a high standard. When the
6946standard requires that the evidence be such that it produces in the mind of
6960the trier of fact a Ñfirm belief or conviction, without hesitancy, as to the truth
6975of the allegations sought to be established,Ò that evidence cannot leave the
6988trier of fact w ith more questions than answers.
699770. Section 120.81(4)(a) provides that in a proceeding against a licensed
7008professional or in a proceeding for licensure of an applicant for professional
7020licensure which involves allegations of sexual misconduct, the testi mony of
7031the victim need not be corroborated. With respect to this case, there is no
7045requirement that there be testimony by someone other than M.M. to
7056corroborate her story. By the same token, where other evidence in the record
7069contradicts her version of th e events, that information may and should still
7082be considered.
708471. As discussed in the Findings of Fact, there were several instances
7096where M.M.Ôs testimony was contradicted by other compelling and persuasive
7106evidence. The evidence presented in support o f the allegations against
7117Respondent simply did not rise to the clear and convincing standard.
7128R ECOMMENDATION
7130Based on the foregoing Findings of Fact and Conclusions of Law, it is
7143R ECOMMENDED that the Administrative Complaints against Terrence
7151Grywinksi, L.M.T. , and Terrence Grywinski Massage , be dismissed.
7159D ONE A ND E NTERED this 5th day of November , 2021 , in Tallahassee, Leon
7174County, Florida.
7176S
7177L ISA S HEARER N ELSON
7183Administrative Law Judge
71861230 Apalachee Parkway
7189Tallahassee, Florida 32399 - 3060
7194(850) 48 8 - 9675
7199www.doah.state.fl.us
7200Filed with the Clerk of the
7206Division of Administrative Hearings
7210this 5th day of November , 2021 .
7217C OPIES F URNISHED :
7222Dannie L. Hart, Esquire Lance O. Leider, Esquire
7230Department of Health The Health Law Firm
7237Bin C - 65 Suite 1000
72434052 Bald Cypress Way 1101 Douglas Avenue
7250Tallahassee, Florida 32399 - 3265 Altamonte Springs, Florida 32714
7259A manda I. Forbes, Esquire Andrew James Pietrylo, Esquire
7268The Health Law Firm Department of Health
7275Suite 1000 Bin C - 65
72811101 Douglas Avenue 4052 Bald Cypress Way
7288Altamonte Springs, Florida 32714 Tallahassee, Florida 32399 - 3265
7297Kama Monroe, JD, Executive Director Louise St. Laurent, General Counsel
7307Board of Massage Therapy Department of Health
7314Department of Health Bin C - 65
7321Bin C - 06 4052 Bald Cypress Way
73294052 Bald Cypress Way Tallahassee, Florida 32399
7336Tallahassee, Florida 32399 - 3257
7341N OTICE OF R IGHT T O S UBMIT E XCEPTIONS
7352All parties have the right to submit written exceptions within 15 days from
7365the date of this Recommended Order. Any exceptions t o this Recommended
7377Order should be filed with the agency that will issue the Final Order in this
7392case.
- Date
- Proceedings
- PDF:
- Date: 11/05/2021
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 11/05/2021
- Proceedings: Recommended Order (hearing held July 12 and 21, 2021). CASE CLOSED.
- PDF:
- Date: 10/15/2021
- Proceedings: Petitioner's Proposed Recommended Order (filed in Case No. 21-000181 ).
- PDF:
- Date: 09/24/2021
- Proceedings: Unopposed Motion for Extension of Time to File Proposed Recommended Order filed.
- Date: 07/26/2021
- Proceedings: Petitioner's Proposed Exhibit 5 filed (exhibits not available for viewing).
- Date: 07/21/2021
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 07/14/2021
- Proceedings: Petitioner's Notice of Taking Deposition Testimony via Video Teleconference (Grywinski) filed.
- PDF:
- Date: 07/13/2021
- Proceedings: Order Granting Continuance and Rescheduling Hearing by Zoom Conference (hearing set for July 21, 2021; 9:30 a.m., Eastern Time).
- Date: 07/12/2021
- Proceedings: CASE STATUS: Hearing Partially Held; continued to July 21, 2021; 9:30 a.m..
- Date: 07/08/2021
- Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
- Date: 07/06/2021
- Proceedings: Petitioner's Proposed and Joint Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 06/15/2021
- Proceedings: Respondents' Amended Notice of Taking Zoom Deposition (as to Date only) filed.
- PDF:
- Date: 05/25/2021
- Proceedings: Order Granting Continuance and Rescheduling Hearing by Zoom Conference (hearing set for July 12 and 13, 2021; 1:00 p.m., Eastern Time).
- PDF:
- Date: 05/21/2021
- Proceedings: Respondents' Notice of Cancellation of Taking Zoom Deposition filed.
- PDF:
- Date: 05/13/2021
- Proceedings: Respondents' Notice of Taking Zoom Deposition (Complainant MM) filed.
- PDF:
- Date: 05/11/2021
- Proceedings: Petitioner's Amendment to Notice of Taking Deposition Testimony via Video Teleconference (Buhler) filed.
- PDF:
- Date: 05/07/2021
- Proceedings: Petitioner's Notice of Taking Deposition Testimony via Video Teleconference (Buhler) filed.
- PDF:
- Date: 05/06/2021
- Proceedings: Response in Opposition to Petitioner's Objection to Non-Party Subpoena and Motion for Protective Order filed.
- PDF:
- Date: 04/29/2021
- Proceedings: Petitioner's Objection to Respondents' Notice of Intent to Serve Subpoena Duces Tecum without Deposition on a Nonparty and Motion for Protective Order filed.
- PDF:
- Date: 04/22/2021
- Proceedings: Petitioner's Notice of Serving Second Response to Respondents' Joint First Set of Interrogatories filed.
- PDF:
- Date: 04/20/2021
- Proceedings: Respondents' Notice of Intent to Serve Subpoena Duces Tecum on a Non-Party filed.
- PDF:
- Date: 04/15/2021
- Proceedings: Respondents' Notice of Service of Amended Answers to Petitioner's First Set of Interrogatories filed.
- PDF:
- Date: 04/13/2021
- Proceedings: Petitioner's Notice of Serving Responses to Respondents' Joint First Set of Interrogatories, Joint First Request for Admissions and Joint First and Second Requests to Produce filed.
- PDF:
- Date: 03/31/2021
- Proceedings: Amended Notice of Hearing by Zoom Conference (hearing set for June 15 and 16, 2021; 1:00 p.m., Eastern Time).
- PDF:
- Date: 03/24/2021
- Proceedings: Respondents' Notice of Intent to Serve Subpoena Duces Tecum on Non-Parties filed.
- PDF:
- Date: 03/24/2021
- Proceedings: Respondents' Joint Second Request for Production of Documents to Petitioner Florida Department of Health filed.
- PDF:
- Date: 03/12/2021
- Proceedings: Notice of Service of Respondent's Joint First Set of Interrogatories to Petitioner filed.
- PDF:
- Date: 03/12/2021
- Proceedings: Petitioner's Notice of Taking Deposition Testimony Via Video Teleconference (T. Grywinski) filed.
- PDF:
- Date: 03/12/2021
- Proceedings: Respondents' Joint First Request for Production of Documents to Petitioner Florida Department of Health filed.
- PDF:
- Date: 03/12/2021
- Proceedings: Order Rescheduling Hearing by Zoom Conference (hearing set for June 15, 2021; 9:30 a.m., Eastern Time).
- PDF:
- Date: 03/04/2021
- Proceedings: Order Granting Continuance and Requiring Status Report (parties to advise status by March 15, 2021).
- PDF:
- Date: 03/04/2021
- Proceedings: Respondents' Notice of Service of Answers to Petitioner's First Set of Interrogatories filed.
- PDF:
- Date: 03/03/2021
- Proceedings: Respondent, Terrence Grywinski Massage's Responses to Petitioner's First Request for Production of Documents filed.
- PDF:
- Date: 03/03/2021
- Proceedings: Respondent, Terrence Brian Grywinski, L.M.T.s Responses to Petitioner's First Request for Production of Documents filed.
- PDF:
- Date: 03/03/2021
- Proceedings: Respondents' Notice of Intent to Serve Subpoena Duces Tecum on a Non-Party filed.
- PDF:
- Date: 03/02/2021
- Proceedings: Petitioner's Notice of Taking Deposition Testimony via Video Teleconference (T. Grywinski) filed.
- PDF:
- Date: 02/24/2021
- Proceedings: Respondent, Terrence Grywinski Massage's Response to Petitioner's First Request for Admissions filed.
- PDF:
- Date: 02/24/2021
- Proceedings: Respondent, Terrence Grywinski, L.M.T.'s Response to Petitioner's First Request for Admissions filed.
- PDF:
- Date: 02/23/2021
- Proceedings: Notice of Appearance (Ann Prescott; filed in Case No. 21-000181 ).
- PDF:
- Date: 01/29/2021
- Proceedings: Notice of Telephonic Pre-hearing Conference (set for March 16, 2021; 10:00 a.m., Eastern Time).
- PDF:
- Date: 01/29/2021
- Proceedings: Notice of Hearing by Zoom Conference (hearing set for April 6, 2021; 9:30 a.m., Eastern Time).
Case Information
- Judge:
- LISA SHEARER NELSON
- Date Filed:
- 01/15/2021
- Date Assignment:
- 01/21/2021
- Last Docket Entry:
- 02/15/2022
- Location:
- Lakewood Ranch, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Terrence Grywinski
6419 Meandering Way
Lakewood Ranch, FL 34202
(941) 321-8757 -
Dannie L Hart, Esquire
PSU Unit - Bin C-65
4052 Bald Cypress Way
Tallahassee, FL 323993265
(850) 558-9896 -
Ann L. Prescott, Esquire
Bin C-65
4052 Bald Cypress Way
Tallahassee, FL 32399
(850) 558-9886