21-000436PL Department Of Health, Board Of Massage Therapy vs. Raul Messir Castro, L.M.T. Status: Assigned, not set.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent had inappropriate sexual contact with two clients in violation of his duty as a licensed massage therapist.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B OARD OF

M ASSAGE T HERAPY ,

Petitioner ,

Case No. 21 - 0436PL

vs.

R AUL M ESSIR C ASTRO , L.M.T. ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a formal administrative hearing was conducted before

Administrative Law Judge ( Ñ ALJ Ò ) Robert S. Cohen via Zoom video

conference on May 4, 2021.

A PPEARANCES

For Petitioner: Christina Arzillo Shideler , Esqu ire

Caitlin Rebekah Harden , Esquire

Office of the General Counsel

Prosecution Services Unit

Florida Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, F lorida 32399 - 3265

For Respondent: Ramon de la Cabad a , Esquire

Law Office of Ramon de la Cabada, P.A.

1395 Brickell Avenue, Suite 800

Miami, Florida 33131

S TATEMENT OF T HE I SSUE

The issue in this case is whether disciplinary action should be taken

against Respondent Ô s license to practice massage therapy based on

allegations that Respondent committed sexual misconduct in the practice of

m assage therapy, therefore violat ing the provisions of section 480.0485,

Florida Statutes (2014) , and Florida Administrative Code R ule 64B7 -

26.010(1) and /o r (3), as alleged in the First Amended Administrative

Complaint ( Ñ Complaint Ò ) in this proceeding .

P RELIMINARY S TATEMENT

On March 11, 2020, Petitioner, Department of Health ( Ñ Department Ò ),

filed a Complaint seeking discipline against the massage therapist license of

Respondent, Raul Messir Castro, L.M.T., in DOH Case No. 2016 - 22707. The

two - count Complaint alleged that Respondent violated section 480.046(1)(p),

through a violation of section 480.0485 and/or rule 64B7 - 26.010(1) and/or (3),

by engaging in sex ual misconduct with Patient M.C.R. and Patient E.V.

Respondent disputed the material facts alleged in the Complaint and

requested a n administrative hearing involving disputed issues of fact . Th e

case was referred to the Division of Administrative Hearings ( Ñ DOAH Ò ) on

February 8, 2021, and was assigned DOAH Case No. 21 - 0436PL .

Prior to the hearing, on April 21, 2021, the parties filed a Joint Pre -

h earing Stipulation. Where relevant, those facts have been incorporated in

this Recommended Order. The final hea ring was held on May 4, 2021.

Petitioner presented the live testimony of Patient M.C.R. Respondent

testified on his own behalf and presented the live testimony of his expert

witness, Dr. Jethro Toomer. Petitioner also recalled Patient M.C.R. for

rebuttal. At the hearing, Petitioner moved to admit the transcript and video

recording of Patient E.V. Ô s deposition in lieu of live testimony, and the

deposition transcript of Dr. Wendy Gallego in lieu of live testimony, which

were admitted as Petitioner Ô s Exhibits 1 and 2. Respondent moved to admit

the curriculum vitae and case list of Dr. Toomer, which were admitted as

Respondent Ô s Exhibits 1 and 2 .

The T ranscript of the proceeding was filed on June 8, 2021. T he parties

timely filed their proposed recommended order s on June 18, 2021 , which

have been given due consideration in the preparation of th is Recommended

Order. References to the Florida Statutes and Florida Administrative Code

are to the version s in effect at the time the incidents complained of herein

were a llegedly committed.

F INDINGS OF F ACT

1. At all times material to the allegations in the Complaint, Respondent

was licensed as a massage therapist in the state of Florida, having been

issued license number MA 67269.

2. Respondent Ô s address of record is 171 7 W est 68th Street, Hialeah,

Florida 33014.

3. At all times material to the allegations in the Complaint, Respondent

was employed as a massage therapist at Shin Wellness ( Ñ Shin Ò ), located at

4500 Biscayne Boulevard, Suite 202, Miami, Florida 33137.

4. Both E.V. and M.C.R. , Respondent Ô s massage clients, met Respondent

when they worked at Shin together and received massages from Respondent

during and/or after their employment at Shin .

5. Shin was owned by Wendy Gallego , M.D.

Patient M.C.R.

6. M.C.R. is well e ducated and has earned her degree in chiropractic

medicine and a master Ô s degree in clinical nutrition. She is well - versed in the

mechanics of the human body as a chiropractor and currently teaches biology

at West Georgia Technical College.

7. At all times material to the allegations in the Complaint, M.C.R. was a

chiropractor at Shin .

8. M.C.R. and Respondent had a collegial relationship with no issues

while working together at Shin.

9. M.C.R. sought massage therapy from Respondent for her left - side

should er area, specifically the trapezius and neck, after sustaining injuries

from a car accident. Respondent Ô s massages assisted M.C.R. in re gaining full

range of motion and relieving tension and knots in her muscles .

10. M.C.R. found Respondent more helpful fo r relieving pain than the

other male and female massage therapists she had seen.

11. M.C.R. Ô s massages with Respondent invariably started the same.

M.C.R. would explain her specific issues to Respondent, which consistently

included the left - side shoulder a rea, after which Respondent would leave the

room for M.C.R. to remove all her clothing except her underwear. M.C.R.

would then lay on the table under a sheet, and Respondent would reenter the

room.

12. M.C.R. testified that, in addition to massaging her in the various areas

she specified as needing special attention, Respondent would sometimes

massage her sternum and surrounding ribcage area by instructing M.C.R. to

place her hands over her breasts and move them outward so he would not

inadvertently touch t hem. She said this would allow Respondent to use a flat

hand under the sheet without making direct contact with her breasts.

13. M.C.R. testified that she never felt uncomfortable with Respondent

massaging using this technique.

14. M.C.R. testified that, o n February 2, 2015, her massage started the

same as any other, with M.C.R. undressing to her underwear and lying face

up on the massage table, under a sheet.

15. M.C.R. testified that Respondent massaged her sternum area, without

first instructing her to p lace her hands over her breasts. While Respondent Ô s

hands were under the sheet , which covered M .C.R. Ô s sternum, he made an

outward circular motion with his flat hands several times, grazing over

M.C.R. Ô s bare breasts and nipples.

16. M.C.R. stated she felt uncomfortable , but did not say anything to

Respondent at this time because she thought that Respondent might have

touched her breasts and nipples by mistake.

17. Shortly after this, M.C.R. turned onto her stomach. M.C.R. did not

place her head in a head r est , but laid her head to one side on the flat table.

18. While Respondent was massaging M. C.R. Ô s back, she testified she felt

something hard brush against her arm. After first assuming it was

Respondent Ô s elbow or knee, she opened her eyes and saw Respond ent Ô s erect

penis through his scrubs.

19. M.C.R. testified that she was shocked and froze.

20. M.C.R. further testified that, o nce the massage ended, Respondent left

the room and M.C.R. got dressed. When Respondent returned to the room,

M.C.R. said he told her that he had a dream about the two of them and he

wanted to make it a reality. Though far from precise or explicit, M.C.R. took

this to mean that Respondent was inquiring if she would engage in sex with

him .

21. M.C.R. immediately expressed her disgust with this comment and left

the room.

22. M.C.R. did not receive any future massages from Respondent.

23. Touching a patient Ô s breast(s) and/or nipple(s), touching a patient Ô s

arm with an erect penis , and inquiring Ð even impliedly Ð if a patient would

engage in sexual acts , are outside the scope of practice or generally accepted

examination or treatment.

24. M.C.R. testified that she did not immediately report the incident

because she was still in shock and needed to process what had happened. She

had not prev iously experienced inappropriate sexual behavior from a

massage therapist and did not know what to do about it.

25. Not long after the incident, M.C.R. testified that she first told her co -

worker, Julio Dominguez, about what Respondent did to her. Mr. Dom inguez

encouraged her to tell Dr. Wendy Gallego, the owner of Shin, about the

incident.

26. M.C.R. next told Dr. Gallego about the incident with Respondent, but

Dr. Gallego did not take any action against Respondent at this time.

27. Dr. Gallego Ô s recollec tion of what M.C.R. told her is different from

what M.C.R. testified to at hearing. Dr. Gallego testified that Respondent Ô s

asking her out or Ñ a proposition kind of thing Ò was not in the context of a

massage. Dr. Gallego tried to rehabilitate her testimony Ô s inconsistencies

with what M.C.R. had testified about by repeatedly saying the passage of

time had affected her memory of details.

28. Respondent and M.C.R. continued to work together at Shin after the

incident, until M.C.R. left for another job as a pro fessor. However, M.C.R.

avoided contact with Respondent during the remainder of her employment.

This was possible because her office was on the opposite side of the building

from the massage rooms.

29. M.C.R. decided not to file a complaint with the Depart ment because

she thought that Respondent Ô s behavior was directed specifically toward her.

At that time, M.C.R. was not aware of any other incidents of inappropriate

behavior by Respondent.

30. M.C.R. became aware of the Department Ô s case against Respondent

only after she was contacted by the Department Ô s attorney about testifying in

this matter before DOAH .

31. M.C.R. decided to testify in this matter after she learned that another

patient , E.V., had been victimized by Respondent. M.C.R. felt more

comfortab le speaking about the incident, knowing that she was not alone.

32. M.C.R. never filed any criminal or civil complaints against Respondent

relating to this incident.

33. M.C.R. Ô s testimony regarding Respondent Ô s conduct during her

massage wa s clear, distin ctly remembered, direct and weighty, and lacking in

confusion as to the facts at issue. As will be discussed below, however, there

are some serious inconsistencies between her testimony and that offered by

Respondent which demand further discussion.

34. Wh ile some of the specific details described by M.C.R. varied

somewhat when cross - examined, the passage of time, four years from the

2015 date of the alleged incident until she became involved in this case in

2019, her description of the alleged incident rem ain ed essentially the same.

35. Prior to the alleged incident at issue, Respondent and M.C.R. had a

friendly relationship as coworkers at Shin. No bias or improper motive for

M.C.R. Ô s testimony was established by Respondent.

36. Following what she describe d as an inappropriate massage, believing

it to be an isolated incident involving Respondent Ô s desires toward her in

particular, M.C.R. merely sought to distance herself from Respondent. M.C.R.

did not seek Respondent Ô s termination from Shin , pursue crimina l

prosecution , nor did she seek to obtain monetary compensation from

Respondent. M.C.R. only came forward to testify against Respondent when

she learned that she may not have been Respondent Ô s only victim. M.C.R. left

her employment from Shin and retired f rom the practice of chiropractic

medicine in 2015.

Patient E.V.

37. E.V. and Respondent first met as coworkers at Shin. Respondent had

already been employed at Shin when E.V. began her employment at Shin as a

receptionist.

38. During her employment at Shi n, E.V. described her relationship with

Respondent as collegial and friendly.

39. At all times material to the allegations in the Complaint, E.V. was no

longer employed at Shin, but was receiving services from Shin.

40. E.V. received multiple massages from Respondent at Shin, and she

recalled that Respondent provided her approximately three massages, which

she pre - scheduled.

41. Interestingly, Respondent recalled having given E.V. massages

Ñ over 30, over 20 times. Ò Based upon testimony from both E.V. and

Dr . Gallego, both by deposition, E.V. recalls only three massages from

Respondent, which , Dr. Gallego testified, w ere borne out by Shin records of

appointments confirmed by Dr. Gallego. Respondent testified that he was

Ñ superconfident Ò that E.V. had been a m assage client of his 20 or 30 times.

When confronted with the number being three as reflected in the Shin

records, according to Dr. Gallego, he responded that she may have only been

counting the times when E.V. was an employee of Shin.

42. E.V. testified t hat she did not exclusively prefer male or female

massage therapists and had received many massages prior to seeing

Respondent.

43. On May 13, 2015, E.V. presented to Respondent at Shin for a massage ,

complaining of lower back and neck pain.

44. E.V. testi fied that t he massage began normally. E.V. notified

Respondent of her issues, Respondent left the room so E.V. could disrobe and

lay under the sheets on the massage table, and Respondent reentered the

room to begin the massage.

45. E.V. began the massage f ace down, with her head in the head rest and

her arms over her head resting on the head rest. While in this position, about

halfway through the massage, E.V. testified that she was in a state of total

relaxation. This suggests that E.V. was comfortable and trusting of

Respondent, despite being disrobed and alone with Respondent in a

vulnerable position.

46. E.V. testified that i t was at this point in the massage she felt

Respondent Ô s erect penis, through his scrubs, rub against her left forearm

and then her right forearm.

47. Upon feeling this, E.V. testified she was Ñ in disbelief Ò and attempted

to determine whether the rubbing she felt was something different, like a

lotion bottle. However, E.V. knew that Respondent did not wear a lotion

bottle around his w aist, and both of Respondent Ô s hands were on her back

administering her massage at that point.

48. E.V. did not actually see Respondent Ô s erect penis, because she was

lying down with her face in the headrest, but testified she knew what an

erect penis feel s like, based upon, she testified, childhood experiences of

abuse, so she assumed that was what she was experiencing during the

massage .

49. Once the massage was complete, E.V. dressed and left the massage

room. She did not report the incident to anyone at Shin on the day of this

massage. She testified that she did not remember anything else that

happened that day because her Ñ memory kin d of shut down or shut it out. Ò

50. Having previously resigned from Shin after the alleged incident, i n

late summer of 201 5, E.V. was rehired by Shin to perform marketing duties.

She had not told a single person at Shin about her alleged massage with

Respondent from May of that year. She learned that day, after checking the

schedule, that Respondent was not scheduled to be in the office. She later

learned, from Ñ Karen, Ò a coworker, that Respondent had been Ñ fired for being

inappropriate with female patients . Ò

51. E.V. Ñ learned Ò about M.C.R. Ô s claim of an Ñ inappropriate proposition Ò

through the rumor mill at Shin. She never sp oke with Ñ C.R. Ò (M.C.R.) , Ñ a

chiropractor that worked at Shin, Ò after learning that she was an other

alleged victim of inappropriate behavior by Respondent.

Jethro W. Toomer, Ph .D.

52. D r. Jethro W. Toomer earned his bachelor Ô s, master Ô s, and doctoral

degr ees in psychology. He is a Diplomate of the American Board of

Professional Psychology and has practiced in the field of psychology since

1976. He has served as a professor, as a clinical and forensic psychologist,

and as a consulting psychologist throughou t his career. He has written,

presented , and had his papers published on countless occasions. He is clearly

an expert in post - traumatic stress disorder ( Ñ PTSD Ò ), through his work with

veterans, professional athletes, and individuals suffering the long - term

effects of childhood or other past stress or traumatic events. He has testified

in judicial proceedings as an expert in PTSD dozens of times. He is accepted

as an expert in PTSD in this case.

53. Dr. Toomer did not personally evaluate E.V. and , therefore, relied

entirely on E.V. Ô s deposition testimony offered in this case, and his

interpretation of the therapy notes made by Dr. Sylvia Galvis - Lundstrom ,

whom E.V. consulted for mental health therapy. Dr. Galvis - Lundstrom did

not testify at hearing.

54. From Dr. Galvis - Lundstrom Ô s notes, Dr. Toomer learned that E.V. had

suffered from two incidents of childhood trauma. The nature of the trauma

was that she had been touched inappropriately on two separate occasions by

two different neighbors , kn o w n to her, when she was aged six and eleven ,

more than 40 years prior to the alleged incident with Respondent . The more

specific nature of the childhood abuse was that she had been touched and

rubbed on her arms with an erect penis on the two occasions she described to

he r therapist.

55. Dr. Toomer noted that E.V. sought therapy after she lost her parents,

another traumatic event, in 2016. She filed her complaint that gave rise to

these proceedings on April 6, 2016, after she began therapy with Dr. Galvis -

Lundstrom. She te stified she filed the complaint Ñ as part of dealing with my

past childhood abuses, and for closure for this incident with [Respondent]. Ò

56. Dr. Toomer testified that Dr. Galvis - Lundstrom Ô s notes made clear

that she and E.V., moving forward, were not goin g to delve back into her

early childhood abuses, but were going to focus on personal growth, taking

responsibility, self - development , and goal achievement, among other self - help

focuses.

57. There is no reference in the therapy notes from Dr. Galvis - Lundst rom

that E.V. ever mentioned the alleged incident involving Respondent from the

time of the massage on May 13, 2015, until September 3, 2015, after she had

returned to work at Shin and learned that Respondent no longer worked

there.

58. After reviewing E.V . Ô s testimony and the notes from her therapy

sessions with Dr. Galvis - Lundstrom, and based upon his education,

knowledge, and experience, Dr. Toomer reached an opinion concerning E.V.

He opined that, with Ñ reasonable psychological certainty, Ò meaning suffi cient

information to form an opinion, Ñ there is sufficient data, sufficient

information to suggest that the recall of EV at that time [the May 13, 2015 ,

massage] was adversely impacted by longstanding trauma that was

unresolved. Ò

59. Dr. Toomer was unable to provide an opinion as to how E.V. Ô s prior

trauma actually affected her recall of the May 13 massage, or to what degree

the recollection was impacted.

Respondent, Raoul M. Castro, L.M.T.

60. Respondent testified that he practiced massage therapy in Russ ia and

Cuba without ever having disciplinary charges or complaints brought against

him. This was neither refuted nor corroborated by competent evidence.

61. Respondent has had an active license in Florida since 2012 and, other

than the 2015 incidents refer red to in the Complaint, has never had

disciplinary action taken against his license. There have been no incidents

reported since the two complained of here in 2015.

62. Prior to beginning work at Shin in 2013 or 2014 , Respondent was

employed as a massage therapist at Massage Envy for a year , without

incident.

63. Respondent testified that , i n his career as a massage therapist, he has

performed hundreds or thousands of massages on hundreds or thousands of

clients without incident or complaint, other than th e two incidents from the

Complaint giving rise to these proceedings. Over his years as a massage

therapist, his ratio of men to women cli e nts was between 50/50 and 60/40.

Th ose statement s w ere unrefuted.

64. Respondent has a partner of 14 years and two chi ldren with her.

65. Respondent testified that Dr. Gallego fired him at Shin after accusing

him of taking cli e nts from Shin for massages he performed outside the office.

He denied th e accusation that he ever poached patients from Shin .

66. Respondent testi fied that Dr. Gallego did not tell him he was fired for

two incidents of sexual misconduct.

67. Respondent employs a specific routine when performing therapeutic

massages. Using the same routine allows him to gauge the levels o f muscular

tension and pain i n the various areas of the body undergoing massage. With

repeat patients, by employing this technique, he learns when to apply less

pressure to the same areas as they improve from repeated visits.

68. Respondent Ô s routine generally begins with the client lying face down

on the table with the client Ô s arms at his or her side , under the sheet, which

is tucked in. When the client is face up, men generally p lace their hands over

their abdomens while women generally p lace their hands over their breasts.

69. Dur ing the facedown part of the massage, E.V. testified that her arms

were straight out over her head like a person would hold her arms if he or she

were being robbed. E.V. testified that this was the position her arms were in

when she felt his erect pen i s ru bbing against first one, then the other , arm.

70. Respondent testified that in his 15 years of performing massages, he

has never asked a client to place his or her arms straight over his or her head

as suggested by E.V. That would be an inappropriate way to massage the

neck and back because the muscles would be tensed rather than relaxed.

Respondent Ô s testimony on this point is credited.

71. Respondent testified that he never had an erect penis during any

massage at any time, whether in the case of E.V. or M.C.R. or any former or

subsequent clients . He never learned about the complaints of E.V. and

M.C.R. until he received the Complaint from the Department in 2016.

72. Respondent testified that he was at a high point in his life personally,

with his partner pregnant with their second child and his massage practice

going so well, when he received the news of the complaint from E.V. He did

not learn about the complaint from M.C.R. until the time of his first

deposition in 2019.

73. Respondent gave at least 30 massages to M.C.R. while the two of them

worked together at Shin. She had chronic issues, especially on her left side,

and she was quite satisfied with the therapy given to her aches and pains by

Respondent. He described their relationship as a Ñ co - worker relationship. Ò In

addition to receiving massages from Respondent , M.C.R. advised him on how

to go about trying to revalidate his chiropractic license in Florida.

74. Respondent denied ever starting his massages with M.C.R. with her

lying face up, because that was not his practice. Moreover, he never

massaged any client Ô s sternum , because he worked only on her upper chest

and neck, not below there , on or around the sternum. His practice was not to

remove the sheet that covered his female clients Ô breasts. H e testified that

the only way he could work on her as she described would have been to reach

under the sheets, then reach between her breasts, without observing what he

was doing, to rub the area around her sternum. He testified Ñ this would be

exposing the breasts and that cannot be done. You can Ô t do that. Ò

75. Respondent forcefully denied that he ever grazed or rubbed M.C.R. Ô s

nipples or rubbed his erect penis against her.

76. Respondent admitted that he told M.C.R., after a massage when she

was fully dre ssed , that he had a dream about her leaving the center (Shin) to

establish her own chiropractic practice and thereby rea liz ing her dreams. He

told her he also dreamed of getting his own license and of her helping him

revalidate his license. He denies ever asking her to have an affair or to fulfill

a sex dream of some sort.

77. Respondent testified that he became a massage therapist because, as

an athlete, he had suffered injuries, and wanted to help others who had

suffered similar sports - related injuries to recover.

78. Respondent testified he has suffered emotionally, economically, and in

his interaction with his clients from the allegations against him. He has

stopped the process of trying to revalidate his chiropractic license because of

these proceeding s hanging over him.

79. Respondent agrees that the massage therapist - client relationship

requires trust.

80. No criminal proceedings were initiated by a law enforcement agency

nor were any civil actions brought by M.C.R. or E.V. against Respondent.

C ONCL USIONS OF L AW

8 1 . DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to sections 120.569 and 120.57(1) , Florida Statutes .

8 2 . This is a proceeding whereby the Department seeks to revoke

Respondent Ô s license to practice massage th erapy . Petitioner has the burden

of proving the allegations in its Complaint by clear and convincing evidence.

Reich v. Dep Ô t of Health , 973 So. 2d 1233, 1235 (Fla. 4th DCA 2008) (citing

Dep Ô t of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 933

( Fla. 1996)); and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). As stated

by the Supreme Court of Florida:

[C]lear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinct ly

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 hesitancy, as to the truth of the

a llegations 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 the evidence is in conflict; however, Ñ it seems to preclude e vidence that

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

(Fla. 1st DCA 1991).

8 3 . Because the regulation of health professions and occupations,

section 456.072(1)(v), Florida Statutes, authorizes suspension or revocation of

a professional license, it is penal in nature and must be strictly construed in

favor of the licensed professional . Breesmen v. Dep Ô t of Prof Ô l Reg., Bd. of

Med. , 567 So. 2d 469, 471 (Fla. 1st DCA 1990); Munch v. Dep Ô t of Prof Ô l Reg.,

Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992).

8 4 . A hearing involving disputed issues of material fact under

section 120.57(1) is a de novo hearing, and Petitioner Ô s initial action carries

no presumption of correctness. § 120.57(1)(k), Fla. Stat.; Moore v. D ep Ô t of

HRS , 596 So. 2d 759 (Fla. 1st DCA 1992).

8 5 . The grounds proving Petitioner Ô s assertion that Respondent Ô s license

should be disciplined must be those specifically alleged in the Complaint. See,

e.g., Trevisani v. Dep Ô t of Health , 908 So. 2d 1108 (F la. 1st DCA 2005); Kinney

v. Dep Ô t of State , 501 So. 2d 129 (Fla. 5th DCA 1987); and Hunter v. Dep Ô t of

Prof Ô l Reg. , 458 So. 2d 842 (Fla. 2d DCA 1984).

8 6 . Due process prohibits the Department from taking disciplinary action

against a licensee based on mat ters not specifically alleged in the charging

instrument, unless those matters have been tried by consent. See Shore Vill.

Prop. Owners Ô Ass Ô n v. Dep Ô t of Envtl. Prot. , 824 So. 2d 208, 210 (Fla. 4th DCA

2002); and Delk v. Dep Ô t of Prof Ô l Reg. , 595 So. 2d 9 66, 967 (Fla. 5th DCA

1992).

8 7 . Section 480.046(1)(p) provides that a massage therapist is subject to

discipline for violatin g any provision of chapter 480 or chapter 456, or the

rules adopted pursuant thereto.

8 8 . Section 480.0485 prohibits sexual miscon duct in the practice of

massage therapy and states , in relevant part:

The massage therapist - patient relationship is

founded on mutual trust. Sexual misconduct in the

practice of massage therapy means violation of the

massage therapist - patient relationship through

which the massage therapist uses that relationship

to induce or attempt to induce the patient to

engage, or to engage or attempt to engage the

patient, in sexual activity outside the scope of

practice or the scope of generally accepted

examination or treatment of the patient.

8 9 . Rule 64B7 - 26.010(1) and/or (3) absolutely prohibits sexual activity by

any person or persons in a massage establishment and provides that no

licensed massage therapist shall Ñ use the therapist - client relationship to

engage in sexual activity with any client or to m ake arrangements to engage

in sexual activity with any client. Ò

90 . Rule 64B7 - 26.010(4) defines sexual activity as:

[A]ny direct or indirect physical contact by any

person or between persons which is intended to

e rotically stimulate either person or both or which

is likely 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 bo dy 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.

9 1 . There are several discrepancies between th e testimony of E.V. and

Respondent. First, E.V. testified, when lying face down on the massage table

with her face in the Ñ donut, Ò her hands were up in the air as if she were being

robbed at gunpoint. Respondent testified that he never massaged an

individu al whose hands were in that position, because their neck and upper

back muscles would be tensed which renders massage impossible to perform

and makes a therapeutic result difficult. Next, E.V. said she felt Respondent Ô s

erect penis rub against first one ar m, then the other, as he moved around the

table while she was face down, yet she was unable to observe that what she

felt was, indeed , Respondent Ô s penis. She testified that she relied on her

memory of childhood abuses at the hands of male neighbors who ru bbed their

penises against her arms more than 40 years previously as her recollection of

what such rubbing felt like. Respondent strenuously denied having an

erection or inappropriately rubbing against E.V. in any manner. Moreover ,

E.V. (and her boss at Sh in, Dr. Gallego through records not produced as

hearing exhibits) recalled having only two to three massages by Respondent,

with the final one being whe n he allegedly improperly rubbed against her.

Respondent testified he was Ñ superconfident Ò that he massa ged E.V. 20 to 30

times. Finally, and equally inexplicable, was the fact that E.V. went back to

work at Shin, the place where she testified she had been sexually abused by

Respondent. When she returned to work there, she was not aware that

Respondent had b een let go by Dr. Gallego, whether it was for poaching

clients or due to M.C.R. Ô s alleged incident. If she was so traumatized by

Respondent Ô s actions, why would she want to work where, as far as she knew,

he was still on staff as a massage therapist? That question remains

unanswered and creates doubt in the undersigned as to the accuracy of E.V. Ô s

recollections .

92. The discrepancies in E.V. Ô s and Respondent Ô s testimony concerning the

behavior of each are so great as to render the entire alleged incident a s

having occurred in parallel universes. Dr. Toomer Ô s explanation that E.V.

never dealt with her childhood abuse by two males as a Ñ triggering event Ò for

her PTSD flashback further calls the evidence offered by E.V. against

Respondent into question. The re sult in the eyes of the undersigned is that

the Department failed to prove, by clear and convincing evidence, that

Respondent acted inappropriately when massaging E.V.

93. M.C.R., on the contrary, was a more compelling witness for the

Department Ô s case. Sh e was articulate, confident in her testimony, and,

because she was a chiropractor, exhibited an understanding of the body and

how it responds to massage at an expert level. However, significant

discrepancies also arose between her testimony and that given by

Respondent.

94. M.C.R. described Respondent as an Ñ excellent Ò massage therapist who

was well - educated and understood the human body well enough to give her

relief from her chronic issues. She never felt uncomfortable with her

massages with Respondent un til the day of the alleged incident, February 2,

2015. Here is where the discrepancies in the testimony of M.C.R. and

Respondent come into play. M.C.R. said that the massage started with her

face up. Respondent said he started the massage, as was his pract ice , with

her lying face down. M.C.R. said Respondent put his hands under the sheet

while she was face down to massage around her sternum and rib cage, while

Respondent said he never reached under the sheets to massage an area with

her or any other client . M.C.R. said Respondent rubbed his hands across her

nipple area, something he had never done before, and he completely denied

this ever happened at any time. Then, she testified, he asked her to flip over

while he held up the sheets slightly for her privac y. After she had turned over

is whe n M.C.R. said Respondent rubbed something hard against her arm

while working on her back. She testified that she then looked, thinking it

might have been his elbow rubbing against her. This is where she said she

saw Respo ndent had an erection , which she could see through his scrubs. She

further testified he then rubbed or brushed against her. He then finished the

massage, she said, and left the room so she could get dressed. Respondent

denied both that he had an erection o r that he ever rubbed against M.C.R. in

any inappropriate way.

95. After she was dressed, Respondent came back into the massage room

where she said Ñ he kind of propositioned me for an affair. Ò This quote, in and

of itself, creates substantial doubt for the undersigned. She testified that

Respondent said he Ñ had a dream about us and I would like to make it a

reality. Ò She said she told him they each had spouses and she was not

interested. His version of the exchange was that he had a dream about the

two of t hem realizing their dreams, hers being opening her own chiropractic

office and his being revalidating his chiropractic license. She testified that

Respondent acted Ñ very unprofessionally, Ò Ñ but he never blocked the exit. Ò

She got around him and just left t he office. She reported this , first, to Julio

Dominguez, then to Dr. Gallego, but could not recall how soon after the

massage she said anything . The credible evidence is that no action was taken

against Respondent by his employer, the Department, or anyone else at that

time, as a result of the reported incident by M.C.R. She never heard anything

from the Department about an action against Respondent until 2019, after

the incident involving E.V. was reported. In her deposition offered in lieu of

live testimo ny at hearing, Dr. Gallego Ô s recollection of M.C.R. Ô s incident was

that she was told Respondent wanted to meet her outside the office Ñ to go to a

hotel or something like this. Ò She could not recall if this happened in the

course of a massage or elsewhere i n the office. When asked about the

inappropriate touching during massage, she stated that she thought M.C.R.

had received massages at Shin, but was not aware of any specifics , and

specifically had no recollection of having been advised of any inappropriate

touching . She also testified at her deposition in 2019 that she could not recall

much in the way of details about the incident involving M.C.R. , or even

whether M.C.R. had regularly received massages from Respondent. Her lack

of memory in 2019 , along with the fact she was not even called upon to testify

at hearing in 2021 , substantially reduce her credibility as a witness in

support of M.C.R. Ô s testimony.

96 . The lack of corroborating evidence from Dr. Gallego , who had

supposedly been told of the incident by M.C.R. , due to her memory fails at the

time of her deposition, compounded by the discrepancies in how M.C.R.

described , versus how Respondent described , his manner of performing

massages on her, make the evidence against Respondent les s than clear and

c onvincing. Therefore, the Department has failed to meet its burden of

proving that Respondent violated his duty as a massage therapist. His telling

M.C.R. about his dream of her may have made her feel uncomfortable so

closely following a massage , and may h ave been poor judgment on his part by

bringing it up at a time and in a place so near to the massage therapist - client

relationship of a massage that had just ended . However, his version

regarding the two of them following their separate dreams versus her

i nterpretation of his dream as seeking a sexual liaison create a degree of

doubt that takes any discuss ion of the dream as a request for sex well beyond

the clear and convincing standard required to prove any wrongdoing by

Respondent . While having a discuss ion with a client about a dream involving

the client is inadvisable for a ny professional who engages in as intimate a

form of therapy as massage , the Department has failed to meet its burden, by

clear and convincing evidence, that a violation of the above - cited statutes and

rules has occurred.

R ECOMMENDATION

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

R ECOMMENDED that a final order be entered by the Department of Health,

Board of Medicine, finding that there is no clear and convin cing proof of

violations by R espondent and , consequently, that Respondent be allowed to

continue as a licensed massage therapist.

D ONE A ND E NTERED this 4th day of August , 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT S. C OHEN

Administrative Law J udge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of August , 2021 .

C OPIES F URNISHED :

Christina Arzillo Shideler, Esquire Ramon de la Cabada, Esquire

Caitlin Rebekah Harden, Esquire Law Offices of Ramon de la Cabada, P.A.

Office of the General Counsel 1395 Brickell Avenue , Suite 800

Prosecution Services Unit Miami, Florida 33131

Florida Department of Health

4052 Bald Cypress Way , Bin C65 Kama Monroe, J . D . , Exec utive Director

Tallahassee, Florida 32399 - 3265 Board of Massage T herapy

Florida Department of Health

Louise St. Laurent, Gen eral Counsel 4052 Bald Cypress Way, Bin C 06

Office of the General Counsel Tallahassee, Florida 32399 - 3257

Florida Departme nt of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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

the date of this Recommended Order. Any e xceptions to this Recommended

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

case.