21-001721PL Department Of Health, Board Of Massage Therapy vs. Aramis Savedra Barcelo, L.M.T. Status: Closed Recommended Order on Tuesday, February 8, 2022.

Summary: Petitioner proved by clear and convincing evidence that Respondent engaged in sexual misconduct in the practice of massage therapy, and he should therefore have his license revoked, pay a fine of $2,500, and costs.

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 - 1721PL

vs.

A RAMIS S AVEDRA B ARCELO , L.M.T. ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing in this cause was held in Tallahassee,

Florida, via Zoom video conference on November 12 , 2021, before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative Hearing s

(DOAH) .

A PPEARANCES

For Petitioner: Harvey D. Rogers, Esquire

Harvey D. Rogers, P.A.

2655 Le Jeune Road, Suite 521

Coral Gables, Florida 33134

For Respondent: Elizabeth Tiernan, Esquire

Department of Health

4052 Bald Cyp ress Way , Bin C - 65

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE S

Whether Respondent engaged in sexual misconduct in the practice of

massage therapy ; and, if so, what is the appropriate sanction.

P RELIMINARY S TATEMENT

On March 29, 2021, Petit ioner, Department of Health (Department or

Petitioner), issued an Administrative Complaint against Respondent,

Aramis Savedra Barcelo, a licensed massage therapist. The complaint

charged Respondent with sexual misconduct in the practice of massage

therapy, in violation of sections 480.046 and 480.0485, Florida Statutes.

According to the complaint, the events that provide the basis for the instant

dispute occurred on or about December 12, 2020. This proceeding is governed

by the law in effect at the time of commission of the acts alleged to warrant

discipline. See McCloskey v. Dep Ô t of Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA

2013). Thus, references to statutes , and related rules, are to Florida Statutes

(2020), unless otherwise noted.

On or about April 15, 2021, Respondent, through counsel, served an

Election of Rights in which he disputed material facts alleged in the

Administrative Complaint and requested an administrative hearing. On

May 28, 2021, the matter was referred to D O AH for a disputed fact heari ng.

At the final hearing, Petitioner offered testimony from complainant K.G.

and witnesses R.W. and J.G. Petitioner also offered rebuttal testimony from

Richard Leon. Respondent testified on his own behalf, and did not call any

additional witnesses to te stify.

Joint Exhibits 1 through 8 were admitted into evidence. Petitioner Ô s

Exhibits 12 through 15 were also admitted into evidence. There were no

exhibits admitted into evidence on behalf of Respondent. The parties filed a

Joint Pre - hearing Stipulation t hat included several admitted and undisputed

facts. Findings of Fact 1 through 15 set forth those stipulations and

agreements in verbatim form, unless otherwise indicated.

A one - volume Transcript of the final hearing was filed with DOAH on

January 4, 2022. On January 18, 2022, each party filed a proposed order, and

the same have been considered in the preparation of this Recommended

Order.

F INDINGS OF F ACT

1. Petitioner is the state department charged with the regulation of the

practice of massage therapy pursuant to [c] hapter 20.43, Florida Statutes;

[c] hapter 456, Florida Statutes; and [c] hapter 480, Florida Statutes.

2. The factual allegation [ s ] contained in the Administrative Complaint, if

proven by clear and convincing evidence, constitute sexual misco nduct.

3. Respondent is Aramis Savedra Barcelo.

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

massage therapist within the State of Florida, having been issued license

MA91462.

5. At all times material to Petitioner Ô s Administrativ e Complaint,

Respondent Ô s address of record was 1185 Wildwood Lakes Boulevard,

Apartment 107, Naples, Florida 34104.

6. At all times material to Petitioner Ô s Administrative Complaint,

[Respondent] practiced massage therapy at Massage Heights located at

452 5 Thomasson Drive North, Naples, Florida 34112.

7. Massage Heights is a massage establishment.

8. At all times material to Petitioner Ô s Administrative Complaint,

[Respondent] w [as] in a massage therapist - client relationship with K.G.

9. On or about Decembe r 12, 2020, Respondent provided a massage to

K.G. at Massage Heights.

10. At the beginning of the massage, K.G. disrobed and was covered with

a draping.

11. Touching a patient Ô s vaginal area is outside the scope of practice of

massage therapy or the scope of generally accepted examination or treatment

of the client.

12. During the course of the massage, Respondent did not obtain K.G. Ô s

consent to touch her breasts.

13. Touching and/or twisting a female client Ô s breast and/or nipple is

outside the scope of p ractice of massage therapy or the scope of generally

accepted examination or treatment of the client.

14. The allegations, which are not admitted by the Respondent, if true

regarding the facts of this case, as contained in paragraphs 10, 14, 15, and 16

of the Administrative Complaint constitute sexual activity.

15. The allegations, which are not admitted by the Respondent, if true

regarding the facts of this case, as contained in paragraphs 10, 14, 15, and 16

of the Administrative Complaint are outside the scope of massage therapy.

16. On December 12, 2020, K.G. presented to Massage Heights for a full -

body massage. K.G. Ô s fiancé, R.W., also received a massage during the visit

but was seen by a different massage therapist. At the time, Massage Heights

was of fering a special to add to the body massage either a foot scrub or hot

stone massage. K.G. s elected the foot scrub.

17. When K.G. arrived at Massage Heights, Respondent met K.G. in the

lobby of the establishment and escorted her to a massage room.

18. Once in the massage room, Respondent instructed K.G. to undress .

Spanish is Respondent Ô s native language, and although he speaks and

understands the English language, his English language skills are limited.

Respondent informed K.G. of his limited language ski lls.

19. After instructing K.G. to undress, Respondent exited the room so as to

allow K.G. to prepare herself for the massage. K.G. removed her bra and

underwear, laid down on the massage table, and draped herself with a sheet.

20. Respondent reentered the room and began the massage. K.G. and

Respondent were alone in the room for the duration of the massage.

21. During the massage, and while K.G. was lying on her back,

Respondent positioned K.G. Ô s left leg into a Ñ frog - like Ò position where her foot

was plac ed against the knee of her right leg. This position exposed K.G. Ô s

vaginal area.

22. While K.G. was in th e Ñ frog - like Ò position, Respondent, while

massaging K.G. Ô s upper thigh, grazed K.G. Ô s vagina and clitoris with his

hand. Respondent apologized to K.G. and continued with the massage. K.G.

believed that Respondent Ô s actions were inadvertent and thought that

Respondent Ô s hand slipped because of the Ñ lotion or oil Ò that he was using.

According to K.G., Respondent apologized and then continued with the

massa ge.

23. Respondent did not repeat th e Ñ frog - like Ò position with K.G. Ô s right leg .

24. As the massage progressed, K.G., a t one point, was laying on her back

with her legs fully extended and in a relaxed position, which created a gap

between her thighs.

25. Respondent briefly discontinued the massage and retrieved a hot

stone. K.G. reminded Respondent that she did not request use of the hot

stone as part of her massage. Respondent informed K.G. that he would

incorporate the hot stone into her massage at no a dditional cost since a foot

scrub was really not needed based on the condition of her feet.

26. The phrase Ñ hot stone Ò is used solely to identi fy the stone type used ,

and is not an indication of the temperature of the stone. K.G. testified that

the stone w as lukewarm, not hot, and did not burn her when it came into

contact with her skin.

27. Respondent initially placed the hot stone on K.G. lower abdomen area

and continued with the massage.

28. While K.G. remained on her back, with her legs fully extended a nd in

a relaxed position, Respondent, while positioned on the right side of K.G. Ô s

body with his torso closest to K.G. Ô s hip, removed the hot stone from K.G. Ô s

abdomen, and placed it on K.G. Ô s pubic mound.

29. At nearly the same instance, K.G. felt Respon dent Ô s mouth and saliva

on her vagina , and also felt Respondent Ô s hand squeezing her right breast

and nipple. K.G. abruptly sat up , saw Respondent slouched over at her side

with his face between her legs , and his protective mask dangling from his left

ear. She immediately screamed Ñ stop, Ò and then again laid on her back.

According to K.G. , her Ñ whole body shut down Ò and she Ñ just froze Ò from

shock.

30. Respondent apologized to K.G., briefly scrubbed her feet, and

concluded the massage.

31. K.G. neither ask ed for n or g a ve Respondent permission to touch her

vagina, clitoris, breast, or nipple.

32. While K.G. was still in the massage room, K.G. Ô s fiancé, R.W., paid for

K.G. Ô s massage, which included a tip.

33. After K.G. exited the massage room, she met R.W. i n the waiting area.

As K.G. approached R.W., he asked K.G. how was her massage, to which K.G.

repeatedly stated , Ñ I need to leave. Ò R.W. described K.G. Ô s demeanor as

appearing Ñ distraught. Ò

34. K.G. Ô s testimony was clear, concise, compelling , and credible .

35. Respondent denie s engaging in sexual misconduct with K.G.

36. Petitioner proved by clear and convincing evidence that Respondent

engaged in sexual misconduct with K.G .

C ONCLUSIONS OF L AW

37. DOAH has jurisdiction over the parties and subject matter of this

proceeding. §§ 480.046(4), 120.569, and 120.57(1), Fla. Stat.

38. Petitioner has authority to investigate and file administrative

complaints charging violations of the laws governing licensed massage

therapists. § 456.073, Fla. Stat.

39. Section 4 80.046(1)(p) provides that:

The following acts constitute grounds for denial of a

license or disciplinary action, as specified in

s. 456.072(2):

* * *

(p) Violating any provision of this chapter or

chapter 456, or any rules adopted pursuant thereto.

40. Respondent is charged with engaging in sexual misconduct in the

practice of massage therapy, in violation of section 480.0485, which provides:

The massage therapist - patient relationship is

founded on mutual trust. Sexual misconduct in the

practice of mass age 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 out side the scope of

practice or the scope of generally accepted

examination or treatment of the patient. Sexual

misconduct in the practice of massage therapy is

prohibited.

41. Florida Administrative Code Rule 64B7 - 26.010, entitled Ñ Sexual

Activity Prohibit ed, Ò provides, in part, that:

(1) Sexual activity by any person or persons in any

massage establishment is absolutely prohibited.

* * *

(3) No licensed massage therapist shall use the

therapist - client relationship to engage in sexual

activity with any cl ient or to make arrangements to

engage in sexual activity with any client.

(4) As used in this rule, Ñ sexual activity Ò means any

direct or indirect physical contact by any person or

between persons which is intended to erotically

stimulate either person o r 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 body

tissue with the intent to cause sexual arousal. As

used herein, sexual activity can involve the use of

any device or object and is not dependent on

whether penetration, orgasm, or ejaculation has

occurred. Nothing herein shall be interpreted to

prohibit a licensed massage therapist, duly

qualified under Rule 64B7 - 31.001, F.A.C , from

practicing colonic irrigation.

42. The Department bears the burden of proving the specific allegations

that support the charges alleged in the Administrative Complaint by clear

and convincing evidence. Dep Ô t of Banking & Fin., Div. of Sec. & Inv. Prot. v.

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

So. 2d 292 (Fla. 1987); Fox v. Dep Ô t of Health , 994 So. 2d 416 (Fla. 1st DCA

2008); Pou v. Dep Ô t of Ins. & Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998).

43. Clear and convincing evidence Ñ requires more proof than a

Ó preponderance of the evidence Ô but less than Ó beyond and to the exclusion of a

reasonable doubt. ÔÒ In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). The clear

and convincing evidence standard of proof:

[E] ntails both a qualitative and quantitative

standard. The evidence must be credible; the

memories of the witnesses must be clear and

without confusion; and the sum total of the

evidence must be of sufficient weight to convince

the trier of fact without hesitancy.

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

explicit and the witness es must be lacking in

confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind

of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations

sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting, with approval,

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re

Henson , 913 So. 2d 579, 590 (Fla. 2005). Ñ Although this standard of proof may

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

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

989 (Fla. 1st DCA 1991).

44. A proceeding to suspend, revoke, or impose other discipline upon a

license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm Ô n ,

281 So. 2d 487, 491 (Fla. 1973). The provisions of law upon which this

disciplinary action has been brought are penal in nature, and must be strictly

construed, with any ambiguity construed against Petitioner. Pen al statutes

must be construed in terms of their literal meaning and words used by the

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

Elmariah v. Dep Ô t of Prof Ô l Reg., Bd. o f Med. , 574 So. 2d 164, 165 (Fla. 1st

DCA 1990); see a lso Cadet v. Dep Ô t of Health , 255 So. 3d 386, 388 (Fla. 4th

DCA 2018).

45. A hearing involving disputed issues of material fact under section

120.57(1) is a de novo hearing, designed to formulate, rather than review,

agency action. § 120.57(1)(k), Fla. Sta t.; Moore v. Dep Ô t of HRS , 596 So. 2d

759, 761 (Fla. 1st DCA 1992).

46. The allegations of fact set forth in the Administrative Complaint are

the grounds upon which this proceeding is predicated. Trevisani v. Dep Ô t of

Health , 908 So. 2d 1108, 1109 (Fla. 1s t DCA 2005); see also Cottrill v. Dep Ô t of

Ins ., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the scope of this

proceeding is properly restricted to those matters as framed by Petitioner in

the Administrative Complaint. M.H. v. Dep Ô t of Child. & Fam. S ervs ., 977

So. 2d 755, 763 (Fla. 2d DCA 2008).

47. Section 480.0485 and r ule 64B7 - 26.010 provide for an absolute

prohibition of sexual activity, regardless of whether the parties consent.

48. Petitioner proved by clear and convincing evidence that Responde nt

violated the massage therapist - patient relationship by engaging in sexual

activity with K.G.

49. Penalties in a licensure discipline case may not exceed those in effect

at the time a violation was committed. Wil l ner v. Dep Ô t of Pro fÔl Reg., Bd. of

Med. , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev . denied , 576 So. 2d 295

(Fla. 1991).

50. Section 456.079 requires the Board of Massage Therapy to adopt

disciplinary guidelines for specific offenses. Penalties imposed must be

consistent with any disciplinary guidelines prescribed by rule. See Parrot

Heads, Inc. v. Dep Ô t of Bus. & Pro fÔl Reg. , 741 So. 2d 1231, 1233 - 34 (Fla. 5th

DCA 1999).

51. The Board of Massage Therapy has adopted r ule 64B7 - 30.002, which

provides the penalties for violations of the practice a ct.

52. Rule 64B7 - 30.002 (2)(p)2. provides that the d iscipline for a violation of

section 480.0485 is license revocation and a $2,500.00 administrative fine.

53. Section 456.072(4) provides that in addition to any other discipline

imposed for violation of a practice act, the board shall assess costs related to

the investigation and prosecution of the case .

R ECOMMENDATION

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

R ECOMMENDED that the Department of Health, Board of Massage Therapy ,

enter a final order: (1) finding that Respondent, Aramis Savedra Barcelo,

L.M.T., violated section 480.0485, which constitutes a violation of section

4 80.046(1)(p) ; (2) revoking his license to practice massage therapy ;

(3) assessing an administrative fin e of $2,500.00 ; and (4) assessing the cost of

investigatin g and prosecutin g the Department Ô s case against Respondent .

D ONE A ND E NTERED this 4th day of February , 2022 , in Tallahassee, Leon

County, Florida.

S

L INZIE F. B OGAN

Administrative Law Judge

1230 A palachee 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 February , 2022 .

C OPIES F URNISHED :

Harvey D. Rogers, Esquire Elizabeth Tiernan, Esquire

Harvey D. Rogers, P.A. Department of Health

2655 Le Jeune Road, Suite 521 Prosecution Services Unit

Coral Gables, Florida 33134 4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

Kristen M. Summers, Esquire

Department of Health Louise St. Laurent, Gen eral Counsel

Prosecution Services Unit Department of Health

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

Tallahassee, Florida 32399 - 3265 Tallahassee, Florida 32399 - 3265

Kama Monroe, Exec utive Director

Board of Massage The rapy

Department of Health

4052 Bald Cypress Way , Bin C - 06

Tallahassee, Florida 32399 - 3257

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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

the date of this Recommended Order. Any exceptions to this Recommended

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

case.