22-000525PL Department Of Health, Board Of Massage Therapy vs. William Daniel Corley, L.M.T. Status: Closed Recommended Order on Friday, July 8, 2022.

Summary: Petitioner proved by clear and convincing evidence that Respondent engaged in sexual misconduct in the practice of massage therapy and failed to appropriately drape a client. Recommend - $2,500 fine and revocation.

Administrative Complaint; whether Respondent violated section

480.046(1)(p), Florida Statu tes (2021), through a violation of r ule 64B7 -

30.001(5), as alleged in the Amended Administrative Complaint; and if so,

what disciplinary penalty is appropriate .

P RELIMINARY S TATEMENT

On December 13, 2021, Petitioner (Petitioner , Department , or Board of

Ma ssage Therapy ) filed an Administrative Complaint against Respondent

alleging Respondent engaged in sexual misconduct and fail ed to drape a

client in violation of section 480.046(1)(p) , as defined in section 480.0485 , and

r ules 64B7 - 26.010(1) and (3) and 64 B7 - 30.001(5).

Respondent timely disputed the allegations in the Administrative

Complaint and requested a final evidentiary hearing. Petitioner then referred

this case to DOAH for assignment to an administrative law judge to conduct

a hearing.

On April 8, 2022, Petitioner filed an Unopposed Motion to Amend the

Administrative Complaint, which the undersigned granted. Thus, the

charging document is the Amended Administrative Complaint filed on

April 20, 2022.

The hearing was initially scheduled for March 30, 2022. On March 1,

2022, the Department filed an Unopposed Motion to Continue Final Hearing,

which the undersigned granted. The case was rescheduled for a hearing on

May 2, 2022, by Zoom video conference .

Prior to the hearing, the Parties filed a Join t Pre - H earing Stipulation. To

the extent relevant, all stipulated facts have been adopted and incorporated

into the Findings of Fact below.

Additionally, Petitioner filed a Motion for Confidentiality. At the hearing,

PetitionerÔs Motion for Confidentiality was granted . Petitioner also filed two

Motions in Limine . PetitionerÔs First Motion in Limine to Exclude Evidence

as Inadmissible Character and Reputation Evidence, as Inadmissible

Hearsay, and as Irrelevant and Unfairly Prejudicial, was denied on the

mer its . PetitionerÔs Second Motion in Limine to Exclude RespondentÔs

Exhibits was denied as moot .

The hearing commenced as scheduled. Joint Exhibits 1, 4, 5A, 5B, and 6

through 9 were admitted into evidence. Joint Exhibits 2 and 3 were

withdrawn . At the fin al hearing, Petitioner presented the testimony of five

witnesses: P.D. (massage therapy client) ; B N; C

D; Shamika James; and Dr. David Chesire, Ph.D. (offered as a lay

witness). Respondent testified on his own behalf and did not o ffer any other

witnesses.

After the conclusion o f the hearing, the parties were informed of the ten -

day timeframe provided by rule for filing proposed recommended orders

(PROs), which runs from the date of filing of the hearing transcript at DOAH.

The on e - volume Transcript of the hearing was filed with DOAH on June 8,

2022. Petitioner timely filed its PRO on June 17, 2022 , which has been

considered in preparing this Recommended Order. Respondent did not file a

post - hearing submittal.

Unless otherwise pro vided, citations to Florida Statutes are to the 20 21

codification , and any citations to rules in the Florida Administrative Code are

to the versions in effect at the time of the acts alleged to warrant discipline.

McClosky v. Dep t of Fin. Servs. , 115 So. 3d 441, 444 (Fla. 5th DCA 2013).

F INDINGS OF F ACT

1. The Department, is the state agency charged with regulating the

practice of massage therapy in the S tate of Florida, pursuant to section 20.43,

and chapters 456 and 480, Florida Statutes .

2. Respondent is a licensed massage therapist in the State of Florida,

having been issued license number MA 92274 .

3. At all times material to the Amended Administrative Complaint,

Respondent was employed as a massage therapist at Essential Massage,

located at 14444 Bea ch Boulevard, Suite 3 - 4, Jacksonville, Florida 32250 .

4. P.D. scheduled a one - hour deep tissue massage appointment for July 5,

2021, at Essential Massage and requested Respondent to be her massage

therapist. P.D. selected Respondent because he previously provided a

massage to P.D. during a couples massage, and she had no issues with him

during that service.

5. On July 5, 2021, P.D. arrived for her massage appointment. A fter P.D.

checked in at the reception desk , Respondent escorted her to the massage

room . Respondent asked P.D. if she had been to Essential Massage prior to

the July 5, 2021, appointment and she replied, yes.

6. Respondent asked P.D. if she had any problem areas , and she told him

that she injured her right hamstring while playing with her daughter . Based

on P.D.Ôs response, Respondent told P.D. that he would focus more attention

on the injured hamstring area.

7. After entering the massage room, Respondent instructed P.D. to

undress to her comfort level , lie face down on the massage table , and cover

herself with the sheet he provided . Respondent left the room and P.D.

removed all her clothing, laid face down on the table, and covered herself

with the sheet.

8. Respondent returned to the massage treatment room and closed the

door behind hi m. Unlike the couples massage, P.D. was in the massage room

alone with Respondent.

9. For the first 30 minutes of the massage, RespondentÔs actions seemed

appropriate. Respondent began with moving the draping sheet to P.D.Ôs lower

back and massaged her ba ck, neck, and shoulders. He then redraped P.D.Ôs

back.

10. Respondent then undraped P.D. Ôs right leg and massaged her right leg

and right inner thigh . While massaging P.D. Ôs right leg, Respondent used the

side of his hand (the side of the hand where the pinky is located) and touched

the labia of P.D.Ôs vaginal area. In response to RespondentÔs action, P.D.

recalls that her body Ñ tensed up, Ò but she believed RespondentÔs actions were

unintentional at that time .

11. Respondent continued to massage P.D. Ôs right leg, moving to her right

thigh . While massaging her right thigh, RespondentÔs hand touched the area

where P.D. Ôs thigh meets her vaginal area for a second time. This time, P.D.

was certain that Respondent had intentionally touched her vagina.

12. As Respondent continued to massage P.D.Ôs right leg he touched her

clitoris with his finger.

13. Respondent then re draped P.D. Ôs right leg, and undraped her left

buttock and left leg down to P.D. Ôs left foot. Respondent then massag ed P.D. Ôs

left thigh, lef t buttock, and left hip .

14. After Respondent completed massaging the left leg, he removed the

draping from P.D. Ôs body, leaving her uncovered and exposed on the massage

table. Then, w hile using both of his hands in an alternating motion,

Respondent rubbe d P.D.Ôs buttocks and at the same time began touching

P.D. Ôs vagina with the palm of his hand . During this action, Respondent

spread open P.D. Ôs uncovered buttocks with his hands, exposing her anus and

vagina .

15. At no time during the massage did P.D. co nsent to RespondentÔs

conduct. She explained that she was unable to verbally command him to stop

because her body was ÑfrozenÒ and she could not move. Despite feeling

uncomfortable, she tried to ignore it, dismiss her thoughts , and Ñget through

it.Ò The en tire inappropriate sexual misconduct portion of the massage

happened during the last thirty minutes of the massage. At no point during

the massage did P.D. give Respondent consent to touch her vagina, clitoris , or

uncovered buttocks.

16. Respondent never redraped P.D. during the remainder of the massage.

P.D. did not give Respondent consent to leave her buttocks or any part of her

body undraped. She also did not give him consent to expose her anus or

vagina.

17. After P.D. Ôs massage, Respondent offered P .D. water and stepped out

of the massage room so P.D. could get dressed. After P.D. dressed,

Respondent handed P.D. water outside the massage room , and then P.D.

went to the rest room .

18. P.D. left the restroom and walked toward the reception desk in the

lobby. As she walked toward the lobby, Responden t stopped P.D. and

provided instructions for range of motion, stretching, and warm up tips so she

could prevent future injury.

19. P.D. checked out at the reception desk in the front lobby. She also paid

a tip to avoid any unwanted additional attention as she wanted to leave as

quickly as possible.

20. After the massage, P.D. confided in her sisters, significant others, and

her therapist regarding her discomfort with RespondentÔs conduct during the

massage. She also ultimately reported the incident to law enforcement.

21. P.D. first confided in her sisters, B N and C

D, after she left Essential Massage by calling them via a video call on

her mobile phone. She described to them the ev ents that happened with

Respondent. She told them that Respondent touched her vagina during the

massage. As she was explaining details, her sister, Ms. N, interrupted

P.D.Ôs description about the incident because P.D. was choking up on her

words and started to cry .Ò Ms. N, a former sexual assault victim

advocate, then encouraged P.D. to speak to her therapist about the incident.

22. P.D. also texted her romantic partners, A nisha Johnson and Shamika

James, via group text and told them that Ñ somet hing Ò happened duri ng her

massage on July 5, 2021. She did not go into detail about what happened.

However, P.D. explained to Ms. Johnson and Ms. James that she did not

want to be touched intimately and needed to talk to her therapist.

23. Despite what ha ppened, P.D. tried to go forward with the remainder of

her day. She went car shopping with her father, as previously planned.

However, she remained upset about what happened during the massage

appointment with Respondent.

24. Based on the encouragement o f her friends and family, o n the morning

of July 6, 2021, P.D. attended an appointment with her therapist,

Dr. Chesire. The counseling session with Dr. Chesire was conducted by Zoom

video conference. Dr. Cheshire described P.D. as unlike her usual gregario us

self. He testified that as the appointment continued, P.D. appeared

increa singly upset, anxious, and tearful.

25. P.D. explained to Dr. Cheshire that she ÑfrozeÒ during RespondentÔs

actions , and she could not move or speak. Dr. Chesire testified that , in his

experience Ï though he was not testifying as an expert witness Ï when people

are faced with difficult or scary situations, those situations can overwhelm

the prefrontal cortex, the logical part of the processing area in the brain.

Dr. Chesire explained that the brain starts to shut down the higher - ordered

attention, problem solving, and impulse control, and individuals retreat to a

more primitive area in the brain. Dr. Chesire compared this phenomenon to

Ñlizard brain,Ò where individuals go into Ñsurvi va l mode.Ò Dr. Chesire

testified that individuals freeze and cannot act because the brain is stuck

trying to process if what is happening is a threat, and if it is a threat, how to

respond. Dr. Chesire explained the time period for ÑfreezingÒ can be

anywhere from a split second to much longer. Dr. Chesire further explained

that this phenomenon is a very common experience for most, if not all, people

when confronted with a dangerous situation such as sexual assault . During

the session, Dr. Cheshire encouraged P.D. to file a complaint with the police.

26. P.D. followed Dr. CheshireÔs advice, and later in the day on July 6,

2021, she reported RespondentÔs conduct to the Jacksonville SheriffÔs Office

(JSO). The interview with JSO was captured on the police bod y camera. P.D.

described the details of the events on July 5, 2021, which were consistent

with details to which P.D. testified at the hearing. Similar to her demeanor

during the interview, P.D. appeared visibly distraught, shaken, and upset.

27. Overall, P.D.Ôs testimony was sincere and believable and , as a result,

P.D.Ôs testimony is found to be credible. In addition, P.D.Ôs testimony was

corroborated by the credible testimony of Ms. N, Ms. D,

Ms. James , and Dr. Chesire, the individuals to whom she contemporaneously

disclosed the events involving Respondent .

28. During his deposition, Respondent attempted to undermine P.D. Ôs

credibility by suggesting that P.D. might be trying to get a check or an Ñeasy

settlementÒ by fabricating the allegations . However, there was no evidence

offered during the deposition or at the final hearing that P.D. has filed a

lawsuit or has any other basis for reporting a false complaint.

29. Respondent testified to a similar chronology of the events as P.D.

described t hem. Respondent met P.D. in the front lobby and took her back to

the massage treatment room where they discussed that P.D. saw him once

prior as a former client , and he asked P.D. if she had any problem areas.

Respondent testified that P.D. told him that h er right hamstring was sore

from doing gymnastics with her daughter , and he decided that extra time

would be spent on P.D. Ôs right thigh. RespondentÔs testimony about the

remaining details were similar to P.D.Ôs. testimony. The difference with

RespondentÔs description was that RespondentÔs version of the massage did

not include the sexual activity. He denied that he engaged in any

inappropriate conduct and instead, performed a routine massage.

30. In contrast to P.D.Ôs testimony, RespondentÔs testimony lac ks

credibility. Given that this case rests on a classic case of P.D.Ôs version of the

events against Respondent , as they were the only two individuals present in

the massage room, the undersigned finds that P.D.Ôs testimony is more

persuasive, credible, cl ear, and convincing regarding the events on

July 5, 2021.

Ultimate Findings of Fact

31. The parties stipulated that if Respondent t ouched and/or rubbed

and/or cupped P.D. Ôs vagina or clitoris , on July 5, 2021, as alleged, that would

be considered sexual misconduct as defined in section 480.0485. Based on the

credible, clear, and convincing evidence, Respondent touched and rubbed

P.D.Ôs vagina with his hand, and as a result, engaged in prohibited sexual

misconduct as defined in section 480.0485.

32. The parties stipulated that if Respondent t ouched and/or rubbed

and/or cupped P.D. Ôs vagina or clitoris , on July 5, 2021, as alleged, that would

be considered sexual activity as defined r ule 64B7 - 26.010(4). Based on the

credible, clear, and convincing evidenc e, Respondent touched and rubbed

P.D.Ôs vagina with his hand, and as a result, engaged in prohibited sexual

activity as defined in rule 64B7 - 26.010(4).

33. The parties stipulated that if Respondent rubbed P.D.Ôs exposed

buttocks , on July 5, 2021, as alleg ed, that would be considered sexual

misconduct as defined in section 480.0485 . The credible, clear, and convincing

evidence demonstrated that Respondent rubbed P.D.Ôs exposed buttocks, and

as a result, engaged in prohibited sexual misconduct as defined in section

480.0485.

34. The parties stipulated that if Respondent rubbed P.D.Ôs exposed

buttocks , on July 5, 2021, as alleged, that would be considered sexual activity

as defined in rule 64B7 - 26.010(4). The credible, clear, and convincing

evidence demonstra ted that Respondent rubbed P.D.Ôs exposed buttocks, and

as a result, engaged in prohibited sexual activity as defined in rule 64B7 -

26.010(4).

35. The parties stipulated that if Respondent spread P.D.Ôs buttocks and

exposed her anus and/or vagina, on July 5, 2021, as alleged , that would be

con sidered sexual misconduct as defined in section 48 0.0485 . The credible,

clear, and convincing evidence demonstrated that Respondent spread P.D.Ôs

buttocks and exposed her anus and vagina, and as a result, engaged in

pr ohibited sexual misconduct as prohibited in section 480.0485.

36. The parties stipulated that if Respondent spread P.D.Ôs buttocks and

exposed her anus and/or vagina, on July 5, 2021, as alleged, that would be

con sidered sexual activity as defined in rule 64B7 - 26.010(4). The credible,

clear , and convincing evidence demonstrated that Respondent spread P.D.Ôs

buttocks and exposed her anus and vagina , and as a result, engaged in

prohibited sexual activity as defined in rule 64B7 - 26.010(4).

37. The parties st ipulated that if Respondent failed to appropriately drape

P.D. , on July 5, 2021, as alleged , by removing the drape and expos ing P.D. Ôs

buttocks, anus, and/or vagina without P.D. Ôs specific informed consent to be

undraped, that would constitute the failure to practice massage therapy with

that level of care, skill, and treatment which is recognized by a reasonably

prudent similar massage therapist as being acceptable under similar

conditions and circumstances, as outlined in r ule 64B7 - 30.001(5) . The

credible , clear , and convincing evidence demonstrated that Respondent failed

to appropriately drape P.D., as required by rule 64B7 - 30.001(5).

C ONCLUSIONS OF L AW

3 8 . DOAH has jurisdiction over the subject matter and the parties,

pursuant to sections 120.569, 120. 57(1), and 456.073(5).

39. According to PetitionerÔs Amended Administrative Complaint,

Petitioner seeks to suspend, revoke, or impose other disciplin e upon

Respondent's license. Thus, this proceeding is penal in nature. State ex rel.

Vining v. Fla. Real E st . Comm Ô n , 281 So. 2d 487, 491 (Fla. 1973). Therefore,

Petitioner must prove the allegations in the 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, 933 - 34 (Fla. 1996); Wright v. Dep Ô t of

Health, Bd. of Med. , 973 So. 2d 1233, 1235 (Fla. 4th DCA 2008).

40. As stated by the Supreme Court of Florida:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses test ify must be distinctly

remembered; the testimony must be precise and

lacking in confusion as to the facts at issue. The

evidence must be of such a weight that it produces

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

conviction, without hesitancy, as t o the truth of the

allegations sought to be established.

41. 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 evi dence is in conflict; however, Ñ it seems to precl ude

evidence that is ambiguous.Ò Westinghouse Elec. Corp. v. Shuler Bros., Inc. ,

590 So. 2d 986, 988 (Fla. 1st DCA 1991).

42. Penal statutes and rules authorizing discipline against a professional

license must be strictly construed, wit h any ambiguity resolved in favor of the

licensee. Elmariah v. Dep Ô t of Pro. Regul., Bd. of Med. , 574 So. 2d 164, 165

(Fla. 1st DCA 1990).

43. Further , disciplinary action must be predicated on facts alleged and

charges set forth in an administrative comp laint. See § 120.60(5), Fla. Stat.;

Trevisani v. Dep Ô t of Health , 908 So. 2d 1108, 1109 (Fla 1st DCA 2005);

Cottrill v. Dep Ô t of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).

44. Here, Count I of the Amended Administrative Complaint charges

Respondent with violating s ection 480.046(1)(p), through a violat ion of

section 480.0485 and/or r ule 64B7 - 26.010(1) and/or (3) , by touching P.D.Ôs

clitoris with his finger(s); by rubbing P.D.Ôs exposed buttocks; by spreading

P.D.Ôs buttocks and exposing her anus and/ or vagina; and/or by placing his

hand on P.D.Ôs vagina in a cupping fashion.

45. Section 480.046(1)(p) provides that violating any provision of chapters

480 or 456 , or any rules adopted pursuant thereto , constitutes grounds for

disciplinary action.

46 . Section 480.0485 prohibits sexual misconduct in the practice of

massage therap y as follows:

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. Sexual

misconduct in the practice of massage therapy is

prohibited.

47. Rule 64B7 - 26.010(1) provides that s exual activity by any person or

persons in any massage establishment is absolutely prohibited.

48. Rule 64B7 - 26.010(3) provides that no licensed massage therapist shall

use the therapist - client relationship to engage in sexual activity with any

client or to make arrangements to engage in sexual activity with any client.

49. Rule 64B7 - 26.010(4) defi nes Ñsexual activity , Ò in pertinent part , as

follows:

[A] ny direct or indirect physical contact by any

person or between persons which is intended to

erotically stimulate either person or both or which

is likely to cause such stimulation. È 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 ejaculatio n has occurred.

50. Petitioner proved by clear and convincing evidence that Respondent

violated section 480.046(1)(p), through a violation of section 48 0.0485 and

rule 64B7 - 26.010(1) and (3) , by engaging in sexual misconduct in the practice

of massage th erapy , by using his position as a massage therapist to induce or

attempt to induce, or to engage or attempt to engage P.D. in sexual activity

outside of the scope of practice as a massage therapist as follows: a) by

touching P.D.Ôs vagina and clitoris with his hand and fingers; b) by rubbing

P.D.Ôs exposed buttocks with his hands ; c) by spreading P.D. Ôs buttocks and

exposing her anus and vagina ; and d) by rubbing his hand on P.D.Ôs vagina.

51. Count II charges Respondent with violating section 480.045(1)(p ) by

violating rule 64B7 - 30.001(5).

52. Rule 64B7 - 30.001 provides in pertinent part:

The following acts shall constitute the failure to

practice massage therapy with that level of care,

skill, and treatment which is recognized by a

reasonably prudent simi lar massage therapist as

being acceptable under similar conditions and

circumstances:

(5) Failure to appropriately drape a client.

Appropriate draping of a client shall include

draping of the buttocks and genitalia of all clients,

and breasts of female c lients, unless the client gives

specific informed consent to be undraped.

53 . Petitioner proved by clear and convincing evidence that Respondent

violated section 480.046(1)(p) th rough a violation of rule 64B7 - 30.001(5) by

failing to appropriately drape P .D. by removing the drap e from her body and

exposing P.D.Ôs buttocks without P.D. Ôs specific i nformed consent to be

undraped.

54. Section 456.079, requires the Board of Massage Therapy to adopt

disciplinary guidelines for specific offenses. Penalties impo sed must be

consistent with any disciplinary guidelines prescribed by rule. See Parrot

Heads, Inc. v. DepÔt of Bus. & Pro. Regul. , 741 So. 2d 1231, 1233 - 34 (Fla. 5th

DCA 1999).

55. At the time of RespondentÔs conduct, the disciplinary guidelines,

codified in r ule 64B7 - 30.002, were the guidelines in effect and applicable to

this matter. Fla. Admin. Code R. 64B7 - 30.002, ( effective Oct. 8, 2020 ) .

56 . Rule 64B7 - 30.002 provides that the recommended discipline for a first -

time violation of section 480.046(1)(p ) includes a reprimand, an

administrative fine ranging from $250 to $1,000, and continuing education.

57 . Rule 64B7 - 30.002 provides that the recommended discipline for a first -

time vi olation of section 480.0485 or r ule 64B7 - 26.010 rang es from a $2,500

a d ministrative fine to revocation.

58. RespondentÔs conduct demonstrate s a clear violation of the client -

massage therapist relationship as he was is in a position of trust that he used

for his own sexual gratification . Given that the appropriate penalty is within

the disciplinary guidelines, discussion about aggravating and mitigating

factors is not necessary here.

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 finding as follows:

a) finding that Respondent, William Daniel Corley, violated section

480.046(1)(p) through a violation of section 480.0485 and rule 64B7 -

26.010(1) and (3);

b) finding that Respondent violated section 480.04 6(1)(p) through a

violation of r ule 64B7 - 30.001(5);

c) revoking RespondentÔs license to practice massage therapy; and

d) imposing an administrative fine in the amount of $2,500.

D ONE A ND E NTERED this 8th day of July , 2022 , in Tallahassee, Leon

County , Florida.

S

Y OLONDA Y. G REEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of July , 2022 .

C OPIES F URNIS HED :

William Daniel Corley , L.M.T. Collie Lynne Nolen, Esquire

Apartment 85 Department of Health

1085 Atlantic Boulevard 4052 Bald Cypress Way, Bin C - 65

Jacksonville, Florida 32233 Tallahassee, Florida 32399

John Wilson, General Counsel Kama Monroe, Executive Director

Department of Health Department of Health

4052 Bald Cypress Way, Bin C - 65 Board of Massage Therapy

Tallahassee, Florida 32399 - 1703 4052 Bald Cypress Way, Bin C06

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.