96-002171 Board Of Massage vs. Elvira Carmen Purmont And Le Clinique Status: Closed Recommended Order on Wednesday, May 21, 1997.

Summary: Sexual activity occurred at Respondent establishment with Respondent owner's knowledge and permission. Recommend revocation of both licenses.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD OF )

MASSAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2 171

)

ELVIRA CARMEN PURMONT and )

LE CLINIQUE, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 9, 1997, at Fort Lauderdale, Florida, before Errol H.

Powell, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Donnette Reid, Esquire 1

Ruby Semour-Barr, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Herbert M. Cohen, Esquire

110 Southeast Sixth Street, Suite 1710

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

The issue for determination is whether Respondents committed

the offenses set forth in the administrative complaint and, if

so, what action should be taken.

PRELIMINARY STATEMENT

On February 19, 1996, the Department of Business and

Professional Regulation, Board of Massage (Petitioner) filed a

two-count administrative complaint against Elvira Carmen Purmont

(Respondent) and Le Clinique (Respondent Establishment). In

Count I, Petitioner charged Respondent with violating Subsection

480.046(1)(k), Florida Statutes (1993), by permitting her

employees to engage in sexual activity at Respondent

Establishment in violation of Rules 61G11-26.010(2) and (4),

Florida Administrative Code. In Count II, Petitioner charged

Respondent Establishment with violating Subsection 480.046(1)(k),

Florida Statutes (1993), by permitting sexual acts to occur on

its premises in violation of Rules 61G11-26.010(1) and (4),

Florida Administrative Code. By an Election of Rights dated

April 30, 1996, on behalf of Respondent and Respondent

Establishment, Respondent disputed the allegations of fact in the

administrative complaint and requested a formal hearing. On May

7, 1996, this matter was referred to the Division of

Administrative Hearings.

At hearing, Petitioner presented the testimony of six

witnesses and entered five exhibits into evidence. Respondent

testified in her own behalf and did not enter any exhibits into

evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set

for more than ten days following the filing of the transcript.

The parties submitted proposed findings of fact which have been

considered in this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Elvira Carmen Purmont

(Respondent) was licensed in the State of Florida as a massage

therapist, having been issued license number MA 0006604.

Respondent was issued a license on January 9, 1986.

2. At all times material hereto, Le Clinique (Respondent

Establishment) was licensed in the State of Florida as a massage

establishment, having been issued license number MM 0001395.

Respondent Establishment was issued a license on February 5,

1988.

3. At all times material hereto, Respondent was the owner

and operator of Respondent Establishment.

4. During the months of March and April 1995, Respondent

practiced massage at Respondent Establishment.

5. On or about February 22, 1995, a detective (Detective

No. 1) with the Fort Lauderdale Police Department, Organized

Crime Division (Ft. Lauderdale P.D.) reviewed Respondent

Establishment's advertisement in the local newspaper. The

wording of the advertisement caused him to become suspicious that

Respondent Establishment may be engaging in prostitution. As

part of Detective No. 1's duties, when a massage establishment is

suspected of prostitution, he performs an investigation.

Detective No. 1 telephoned Respondent Establishment and arranged

for a massage.

6. At least three years prior to February 22, 1995,

Detective No. 1 had visited Respondent Establishment several

times. At no time, during those visits, did he encounter any

wrongdoing at Respondent Establishment.

7. At Respondent Establishment, Det ective No. 1 paid an

employee, who identified herself as Claudia, for a massage which

was referred to as a "session". Claudia performed the massage.

During the session, Claudia offered to masturbate Detective

No. 1. He declined and terminated the session.

8. At no time on or about February 22, 1995, did Detective

No. 1 make contact with or talk to Respondent. At no time was

Respondent present in the room during the session.

9. Required by the Ft. Lauderdale P.D. to make certain that

the offer to masturbate was not an isolated incident 2 , Detective

No. 1 telephoned Respondent Establishment and made another

appointment for a session.

10. On March 1, 1995, at Respondent Establishment an

employee, who identified herself as Julie, performed the session.

Claudia was not at Respondent Establishment at the time.

Detective No. 1 paid Julie for the session. During the session,

Julie began to masturbate him. Detective No. 1 stopped her and

terminated the session.

11. At no time on or about March 1, 1995, did Detective No.

1 make contact with or talk to Respondent. At no time was

Respondent present in the room during the session.

12. On April 13, 1995, Detective No. 1 arranged for another

session at Respondent Establishment. He paid an employee, who

identified herself as Jessica, for the session. During the

session, Jessica removed her blouse and bra and Detective No. 1

inquired about removing the remainder of her clothing. Jessica

indicated that, for an additional charge, she would remove the

remainder of her clothing. Detective No. 1 paid the additional

charge and Jessica removed the remainder of her clothing. While

nude, she began to masturbate Detective No. 1. He stopped her.

13. After stopping Jessica from masturbating him, Detective

No. 1 made arrangements with Jessica for a fictitious out-of-town

business associate of his to receive a session. Jessica agreed

that she could perform a session with his business associate and

indicated that Claudia would perform oral sex. Detective No. 1

indicated that he, not his business associate, would pay for

their services.

14. At no time on or about April 13, 1995, did Detective

No. 1 make contact with or talk to Respondent. At no time was

Respondent present in the room during the session or when the

arrangements for the business associate were made.

15. On or about April 18, 1995, Detective No. 1 called

Respondent Establishment to confirm the session for his out-of-

town business associate. He spoke briefly with an employee who

identified herself as Jennifer and who indicated that she would

let him speak with Respondent. The next person who spoke on the

telephone was Respondent. Detective No. 1 confirmed that he was

coming to Respondent Establishment that day to pay for a session

for a business associate.

16. In the afternoon of April 18, 1995, Detective No. 1

telephoned Respondent Establishment again but this time he was

taping the telephone conversation. He again spoke with

Respondent. Detective No. 1 confirmed with Respondent that his

out-of-town business associate would receive a session with two

females and a "blow job"; Respondent acknowledged all of

this. 3 Further, Detective No. 1 arranged with Respondent that he

would come into Respondent Establishment approximately 30 minutes

prior to the arrival of his business associate and pay for his

business associate's session. Respondent agreed to the

arrangement.

17. Subsequently, that same day, Detective No. 1 went to

Respondent Establishment and paid an employee, who identified

herself as Julie, $250 for his business associate to receive the

arranged session.

18. Shortly thereafter, Detective No. 2, posing as

Detective No. 1's out-of-town business associate, entered

Respondent Establishment. Detective No. 2 was wearing a wireless

transmitter through which backup officers could listen. The

backup officers were positioned close to Respondent

Establishment.

19. Detective No. 2 was shown to a room by Julie. She

requested him to disrobe and he complied. Jessica joined Julie

in the room and they disrobed with one completely nude and the

other only wearing panties. Both women began massaging Detective

No. 2 and brushing their bodies against his. One of the females

began to masturbate Detective No. 2 and he indicated that he was

to receive a "blow job". One of the females opened a condom and

Detective No. 2 understood this action to mean that he was going

to receive oral sex. At that time, he gave the arrest signal to

the back-up officers of the Fort Lauderdale P.D. via his wireless

transmitter. The ba ckup officers entered Respondent

Establishment and arrested Respondent and her employees,

including Julie and Jessica.

20. Respondent was present at Respondent Establishment, but

not in the room, during Detective No. 2's session with Julie and

Jessica.

21. At no time did Detective No. 2 make contact with or

talk to Respondent.

22. The $250 paid by Detective No. 1 for Detective No. 2's

session was retrieved from a metal box at Respondent

Establishment. The money had been photocopied prior to it being

paid and the serial numbers on the retrieved money matched the

serial numbers on the photocopied money.

23. Julie was identified as Martha Galvis.

24. Jessica was identified as Martha Livingway.

25. At all times material hereto, neither Martha Galvis nor

Martha Livingway was licensed by Petitioner as a massage

therapist.

26. Respondent admits that she permitted Martha Galvis to

perform massages because Ms. Galvis was attending massage school.

27. Respondent Establishment was not approved by Petitioner

to be a training agency.

28. Respondent was not approved by Petitioner to be a

massage sponsor.

29. For one and one-half (1 1/2) years subsequent to the

arrests, the Fort Lauderdale P.D. made further undercover visits

to Respondent Establishment without incident.

30. Neither Respondent nor Respondent Establishment has had

disciplinary action taken against them by Petitioner.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Subsection 120.57(1), Florida

Statutes.

32. License revocation proceedings are penal in nature.

The burden of proof is on Petitioner to establish the

truthfulness of the allegations in the administrative complaint

by clear and convincing evidence. Ferris v. Turlington , 510

So.2d 292 (Fla. 1987); Balino v. Department of Health and

Rehabilitative Services , 348 So.2d 349 (Fla. 1st DCA 1977).

33. Rule 61G11-26.010, Florida Administrative Code,

prohibits sexual activity in massage establishments and provides

in pertinent part:

(1) Sexual activity by any person or persons

in any massage establishment is absolutely

prohibited.

(2) No massage establishment owner shall

engage in or permit any person or persons to

engage in sexual activity in such owner's

massage establishment or use such

establishment to make arrangements to engage

in sexual activity in any other place.

* * *

(4) As used in this rule, "sexual activity"

means any 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 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 devise or object and is not depen-

dent on whether penetration, orgasm, or

ejaculation has occurred. . . .

34. Section 480.046, Florida Statutes (1993), provides in

pertinent part:

(1) The following acts shall constitute

grounds for which disciplinary actions

specified in subsection (2) may be taken

against a massage therapist or massage

establishment licensed under this act:

* * *

(k) Violating any provision of this chapter,

a rule of the board or department, or a

lawful order of the board or department

previously entered in a disciplinary hearing,

or failing to comply with a lawfully issued

subpoena of the department.

35. Petitioner contends that Respondent permitted her

employees, Martha Galvis and Martha Livingway, to engage in

sexual activity on or about April 18, 1995, at Respondent

Establishment which she owned, thereby violating Rules 61G11-

26.010(2) and (4), and Subsection 480.046(1)(k). The evidence

shows that Respondent had knowledge of the sexual activity

occurring on or about April 18, 1995, by her employees and

permitted it to occur. Consequently, Petitioner has demonstrated

that Respondent violated Rules 61G11-26.010(2) and (4), and

Subsection 480.046(1)(k).

36. Petitioner contends further that, because the sexual

activity occurred at Respondent Establishment on or about April

18, 1995, Respondent Establishment violated Rules 61G11-26.010(1)

and (4), and Section 480.046(1)(k). The evidence shows that

sexual activity occurred at Respondent Establishment on or about

April 18, 1995. Consequently, Petitioner has demonstrated that

Respondent Establishment violated Rules 61G11-26.010(1) and (4),

and Subsection 480.046(1)(k).

37. As to penalty, Section 480.046, Florida Statutes

(1993), provides in pertinent part:

(2) When the board finds any person guilty

of any of the grounds set forth in subsection

(1), it may enter an order imposing one or

more of the following penalties:

* * *

(b) Revocation or suspension of a license.

(c) Issuance of a reprimand or censure.

(d) Imposition of an administrative fine not

to exceed $1,000 for each count or separate

offense.

38. Petitioner acknowledges that, under its disciplinary

guidelines, Respondent and Respondent Establishment, each, would

be subject to an administrative fine of one thousand dollars

($1,000) and a suspension. However, Petitioner argues that the

penalty should be increased to revocation due to Respondent

committing a violation, to which she freely admitted, which was

not charged in the administrative complaint. Contrary to

Petitioner's argument, a violation not charged cannot form the

basis for license revocation. MacMillian v. Nassau County

School Board , 629 So.2d 226 (Fla. 1st DCA 1993); Kinney v.

Department of State , 501 So.2d 129 (Fla. 1st DCA 1987); Hunter

v. Department of Professional Regulation , 458 So.2d 842 (Fla. 2d

DCA 1984). Therefore, the violation not charged cannot be

considered.

39. But, as aggravating factors, consideration should be

given to Respondent's knowledge that sexual activity would be

occurring at Respondent Establishment and to Respondent

permitting the sexual activity to occur at Respondent

Establishment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Massage enter a final order

revoking the license of Elvira Carmen Purmont and of Le Clinique.

DONE AND ENTERED this 21 st day of May, 1997, in Tallahassee,

Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings st

this 21 day of May, 1997.

ENDNOTES

1/ Semour-Barr, Esquire was substituted as counsel of Ruby

record for the Department of Business and Professional

Regulation, Board of Massage (Petitioner) subsequent to the

hearing and prior to the filing of Petitioner's proposed

recommended order. Attorney Semour-Barr filed Petitioner's

proposed recommended order.

2/ is the usual process and procedure of the Fort This

Lauderdale P.D.

3/ Administrative Law Judge does not find Respondent's This

testimony credible that she did not understand what Detective

No. 1 was saying during the telephone conversation.

COPIES FURNISHED:

Ruby Semour-Barr, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Herbert M. Cohen, Esquire

110 Southeast Sixth Street, Suite 1710

Fort Lauderdale, Florida 33301

Joe Baker, Executive Director

DBPR - Board of Massage

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.