STATE OF FLORIDA BOARD OF MASSAGE THERAPY. vs. DOH CASE NO.: DOAH CASE NO.: PL LICENSE NO.: MA FINAL ORDER

Transcription

1 STATE OF FLORIDA BOARD OF MASSAGE THERAPY Final Order No. DOH QA FILED DATE - SE Department of Healt DEPARTMENT OF HEALTH, Petitioner, vs. DOH CASE NO.: DOAH CASE NO.: PL LICENSE NO.: MA SI FANG. TAO, Respondent. FINAL ORDER THIS CAUSE came before the BOARD OF MASSAGE THERAPY (Boa d) pursuant to Sections and (1), Florida Statutes, on uly 27, 2017, in Orlando, Florida, for the purpose of considering the Administrative Law Judge's Recommended Order (a copy of which is attached hereto as Exhibit A) in the above-styled cause. PetitiOner was represented by Oaj Gilani, Assistant General Counsel. Respondent was not present. Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions. FINDINGS OF FACT 1. The findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein by reference. 2. There is competent substantial evidence to support the findings of fact.

2 CONCLUSIONS OF LAW 1. The Board has jurisdiction of this matter pursuant to Section (1), Florida Statutes, and Chapter 464, Florida, Statutes. 2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein by reference. PENALTY Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Administrative, Law Judge be ACCEPTED. WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED: The license of SI FANG TAO is hereby REVOKED. The licensee must an administrative fine of $2, within 12 months of the date this Final Order is filed. Payment shall be made to the Board of Massage Therapy and mailed to, DOH-Compliance, Management Unit, 4052 Bald Cypress Way, Bin C-06 Tallahassee, Floida , Attention: Massage Therapy Compliance Officer. Payment must be made by cashier's check or money order ONLY. Personal checks will not be accepted. RULING ON MOTION TO ASSESS COSTS The Board reviewed the Petitioner's Revised Motion to Assess Costs and imposes the costs associated with this case in the amount of $18, Said costs are to be paid within 12 months from the date this Final Order is filed. Payment shall be made to the BOard of Massage Therapy and mailed to, Board of Massage Therapy and mailed to, DOH-Compliance Management Unit, 4052 Bald Cypress Way,

3 Tallahassee, Florida , Attention: Massage Therapy Compliance Officer. Payment must be made by cashier's check or Money order ONLY. Personal checks will NOT be accepted. This Final Order shall take effect upon being filed with the Clerk of the Department of Health. DONE AND ORDERED this 7 day of BOARD 01' MASSAGE THERAPY Ka a Monroe Executive Director for Lydia Nixon, Chair NOTICE OF RIGHT TO JUDICIAL REVIEW A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION , FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDJRE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF HEALTH AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF AP EAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDE TO BE REVIEWED.

4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to SI FANG TAO,,9210 N. Lake Parkway #107, Orlando FL & 335 Rome Street, San Francisco CA 94112; to J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida ; and by to Department of Health-PSU, Oaj.Gilani@flhealth.gov this lev day of, Suitub Deputy Agency Clerk Certified Article Number SENDERS RECORD N. Lake Parkway #107 Orlando, FL "111" Si Fang Tao 335 Rome St. San Francisco, CA , , , " J. Lawrence Johnston, Administrative Law Judge Division of Administrative Hearings, The Desoto Bl 1230 Apalachee Parkway Tallahassee, FL Certified Article Number SENDERS RECORD

5 4917 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HEALTH, BOARD OF MASSAGE THERAPY, Petitioner, vs. Case No PL SI FANG TAO, LMT, Respondent. RECOMMENDED ORDER On March 9, 2017, a final hearing was held by video teleconference at locations in Orlando and Tallahassee, Florida, before J. Lawrence Johnston, an Administrative Law Judge (ALJ), assigned by the Division of Administrative Hearings (DOAH) to preside over this matter. APPEARANCES For Petitioner: Carrie Beth McNamara, Esquire Oaj S. Gilani, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida For Respondent: No appearance STATEMENT OF THE ISSUES The issues to be determined in this case are whether Respondent, Si Fang Tao, engaged in sexual misconduct in the practice of massage therapy, in violation of sections

6 (1)(p) and , Florida Statutes ( ); and if so, what is the appropriate sanction. PRELIMINARY STATEMENT On March 4, 2016, Petitioner, Department of Health (Department), filed an Administrative Complaint against Respondent, a licensed massage therapist. The complaint charged Respondent with sexual misconduct in the practice of massage therapy, in violation of section Ms. Tao disputed material issues of fact in the complaint and requested a formal administrative hearing. The final hearing took place on March 9, At hearing, Petitioner offered the testimony of law enforcement officers Denise Rosario, Q.A., and F.M. Petitioner also offered the deposition testimony of Iris Burman, a licensed massage therapist and expert in massage therapy, taken in lieu of live testimony. In addition, Petitioner's Exhibits 1 through 4 were received in evidence. Respondent was not present and did not offer any evidence or testimony. The parties were allowed to submit proposed recommended orders within ten days after the filing of the transcript of the final hearing. The TransCript was filed on March 23, Petitioner filed a Proposed Recommended Order, which has been considered. Respondent did not file a proposed recommended order.

7 4919 Unless otherwise indicated, citations to the Florida Statutes or rules of the Florida Administrative Code refer to the versions in effect on June 12, and July 8, 2015, the dates the violations were allegedly committed. FINDINGS OF FACT Petitioner is the state agency charged with regulating the practice of massage therapy in the state of Florida, pursuant to section 20.43, and chapters 456 and 480, Florida Statutes (2016). 2. At all times material to the complaint, Respondent was licensed to practice massage therapy in the state of Florida, having been issued license number MA on or about April 21, At all times material to the complaint, Respondent owned and operated Massage, Connection 'I (Massage Connection), located at South Orange Blossom Trail,.Suite A-209, Orlando, Florida At all times material to the complaint, Respondent was the sole massage therapist working at Massage Connection. 5. The Metropolitan Bureau of investigation (MBI) is a joint police task force for Orange County and Osceola County. MBI routinely investigates narcotics, vice, human trafficking, and organized crime. 3

8 In June and July 2015, MBI conducted an undercover operation for suspected acts of prostitution occurring at Massage Connection. 7. Officer Q.A. has been a deputy sheriff with the Orange County Sheriff's Office since 2007 and was working in the Vice and Organized Crime Unit of MBI on June 12, On June 12, 2015, Officer Q.A. entered Massage Connection posing as a patient and requested a 60-minute massage from Respondent, who introduced herself as "Michelle." 9. Officer Q.A. paid Respondent $80.00 for the massage, and Respondent led Officer Q.A. to a massage room where Officer Q.A. disrobed completely and lay face down on the massage table. 10. Respondent did not drape Officer Q.A.'s buttocks or genitals during the course of this massage. Respondent repeatedly touched Officer Q.A.'s inner thighs, lightly touching them with the back of her hands, palm of her hands, and fingernails. Respondent pointed to Officer Q.A.'s penis and made a hand gesture with a clenched fist moving up and down, colloquially understood to indicate manual masturbation of the penis. Respondent then told Officer Q.A., "I can massage your full body" and asked how much he would pay for this. Respondent agreed to perform the manual masturbation of Officer Q.A.'s penis for an additional $80.00 and told Officer Q.A. not to tell. anyone that she was doing this. 4

9 4921. Respondent asked Officer Q.A. for the money, accepted partial payment of $50.00 from Officer Q.A., and left the room. When Respondent returned to the room, she exposed her breasts to Officer Q.A. Respondent then began massaging Officer Q.A. again and touched his penis, at which point Officer Q.A. stated he did not want to proceed with manual penile masturbation. 12. Officer F.M. has been a law enforcement officer with the Orange County Sheriff's Office for the past nine years and was working in the Vice and Organized Crime Unit of MBI on July 8, On July 8, 2015, Officer F.M. entered Massage Connection posing as a patient and requested a 30-minute massage from Respondent, who introduced herself as "Crystal." 14. Officer F.M. paid Respondent $55.00 for the massage, and Respondent led Officer F.M. to a massage room where Officer F.M. disrobed completely and lay face down on the massage table. Respondent did not drape Officer F.M.'s buttocks during the course of this massage. 15. When Officer F.M. turned over during the massage, Respondent covered Officer F.M.'s genitals with a small towel but then placed her hand on top of Officer F.M.'s penis and asked if he wanted Respondent to massage him there. Respondent told Officer F.M. that she had a very good technique and made a hand gesture with a clenched fist moving up and down, colloquially 5

10 4922 understood to indicate manual masturbation of the penis. Respondent told Officer F.M. that she would rub him "very good." 16. When Officer F.M. asked Respondent for oral sex, Respondent offered to expose her breasts instead. When Officer F.M. asked if he could receive a nude massage from Respondent if he returned to Massage Connection, Respondent again offered to expose her breasts instead. 17. Officer F.M. then asked Respondent how much the "full body massage" would cost while pointing at his penis, indicating manual masturbation of his penis. Respondent indicated that a "fully body massage" would cost an additional $ When Officer F.M. told Respondent that $40.00 was too much just to "jerk [him] off," or masturbate him, Respondent stated that she does a "good job" and people tip her $20.00 even if she doeṣ not "massage [them] there." Officer F.M. declined, stating that "$40 for a hand job is a lot." Respondent replied "no, it's very good technique," and told Officer F.M. "how about for you, $35?" Officer F.M. again declined, and the massage concluded. 18. On July 9, 2015, both MBI Officers Q.A. and F.M. positively identified Respondent as the massage therapist that had offered to perform sexual acts on them. 19. It is common for patients to be completely disrobed during a massage. However, massage therapists must drape the patient to maintain professional boundaries. Generally, a

11 4923 patient is completely draped and only the areas being massaged at that time are exposed. At the very least, appropriate draping of a patient requires draping of the buttocks and genitalia and the breasts of female patients, unless the patient gives specific informed consent to be undraped. 20. Massaging the upper inner thigh of a patient without first obtaining informed consent is outside the scope of practice of massage therapy. Informed consent from the patient is necessary before massaging the upper inner thigh due to the sensitive nature of the area, to avoid confusion about the intent of the touch, and to maintain boundaries. If a massage therapist does not clarify this treatment, it can indicate that the massage therapist is willing to engage in sexual activity. 21. There is no generally accepted massage therapy technique that requires massage therapists to use the back of their hands to massage the inner thigh of a patient. 22. There is no generally accepted massage therapy technique that requires massage therapists to use their fingernails to lightly touch a patient's inner thigh. Using fingernails to lightly touch the inner thigh of a male patient during a massage can cause sexual arousal and is not likely to be therapeutic.

12 There is no accepted practice within the scope of massage therapy that allows massage therapists to touch or massage the penis of a patient. 24. There is no accepted practice within the scope of massage therapy that allows massage therapists to expose their breasts to a patient. 25. The following constituted sexual activity outside the scope of massage therapy and sexual misconduct in the practice of massage therapy: Respondent's failure to drape Officer Q.A.'s buttocks and genitals; her exposure of her own breasts to Officer Q.A.; the light. touching of Officer Q.A.'s inner thighs with the back of her hands and fingernails; the touching of Officer Q.A.'s penis; and her offering or agreeing to masturbate Officer Q.A.'s penis. 26. The following constituted sexual activity outside the scope of massage therapy and sexual misconduct in the practice of massage therapy: Respondent's failure to drape Officer F.M.'s buttocks; her touching of Officer F.M.'s penis; offering or agreeing to masturbate Officer F.M.'s penis; and her offering to expose her breasts to Officer F.M. CONCLUSIONS OF LAW 27. Petitioner has authority to investigate and file administrative complaints charging violations of the laws

13 4925 governing licensed massage therapists , Fla. Stat. (2016). 28. Because Petitioner seeks to impose license discipline, Petitioner has the burden to prove its allegations by clear and convincing evidence. See Dep't of Banking & Fin. v. Osborne Stern & Co., Inc., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). This "entails 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." In re Davey, 645 So. 2d 398, 404 (Fla. 1994). See also Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in conflict,.. it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 18t DCA 1991) (citations omitted). 29. Disciplinary statutes and rules "must be construed strictly, in favor of the one against whom the penalty would be imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see, Camel() v. Dep't of Bus. & Prof'l Reg., 812 So. 2d 583, (Fla. 30 DCA 2002);. McClung v. Crim. Just. Stds. & Training Comm'n, 458 So. 2d 887, 9

14 (Fla. 5th DCA 1984) ("'W'here a statute provides for revocation of a license the grounds must be strictly construed because the statute is penal in nature. No conduct is to be regarded as included within a penal statute that is not reasonably proscribed by it; if there are any ambiguities included, they must be construed in favor of the licensee." (citing State v. Pattishall, 126 So. 147 (Fla. 1930)). 30. The grounds proven in support of the Department's assertion that Respondent's license should be disciplined must be those specifically alleged in the Administrative Complaint. See, e.g., Trevisani v. Dep't of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Cottrill v. Dep't of Ins., 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Dep't of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Hunter v. Dep't of Prof'? Reg., 458 So. 2d 842 (Fla. 2d DCA 1984). Due process prohibits the Department from taking disciplinary action against a licensee based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Shore Vill. Prop. Owners' Ass'n, Inc. v. Dep't of Envtl. Prot., 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Delk v. Dep't of Prof'l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992). 31. The Administrative Complaint against Respondent alleges that on two separate occasions, Respondent engaged in sexual misconduct when she used the massage therapist-patient 10

15 4927 relationship to induce or attempt to induce, or engage or attempt to engage, Officers Q.A. and F.M. in sexual activity outside the scope of practice of massage therapy. 32. Section (1)(p) subjects a massage therapist to discipline for violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto. 33. Section prohibits sexual misconduct in the practice of massage therapy and defines sexual misconduct, in pertinent part, as: Miolation of the massage therapist-patient relationship through which the massage therapist uses that relationship to induce or attempt to Indute 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. 34. Florida Administrative Code Rule 64B (4) defines "sexual activity" as: [Ajny 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 tissues with the intent to cause sexual arousal. 35. The Department presented clear and convincing evidence that Officers Q.A. and F.M. had a massage therapist-patient

16 4928 relationship with Respondent by demonstrating that they each received a paid massage from Respondent at Massage Connection. 36. The Department presented clear and convincing evidence that Respondent induced or attempted to induce, or engaged or attempted to engage in sexual activity, as defined by rule 64B (4), with Officer Q.A. when Respondent: failed to drape Officer Q.A.'s buttocks and genitals; exposed her breasts to Officer Q.A.; repeatedly touched Officer Q.A.'s inner thighs lightly with the back of her hands and fingernails; touched Officer Q.A.'s penis; and offered to perform masturbation of Officer Q.A.'s penis. 37. It constituted sexual misconduct during the course of a massage under section when Respondent: failed to drape Officer Q.A.'s buttocks and genitals; exposed of her own breasts to Officer Q.A.; lightly touched Officer Q.A.'s inner thighs with the back of her hands and fingernails; touched Officer Q.A.'s penis; and offered or agreed to masturbate Officer Q.A.'s penis. 38. The Department presented clear and convincing evidence that Respondent induced or attempted to induce, or engaged or attempted to engage in sexual activity, as defined by rule 64B (4), with Officer F.M. when Respondent failed to drape Officer F.M.'s buttocks; placed her hand on Officer F.M.'s penis; offered to perform masturbation of Officer F.M.'s penis; and offered to expose her breasts to Officer F.M. 12

17 It constituted sexual misconduct during the course of a massage under section when Respondent: failed to drape Officer F.M.'s buttocks; touched Officer F.M.'s penis; offered or agreed to masturbate Officer F.M.'s penis; and offered to expose her breasts to Officer F.M. 40. Based on the foregoing, the Department proved by clear and convincing evidence that Respondent violated section , and thereby violated section (1.)(p), as charged in the Administrative Complaint. 41. The Board of Massage Therapy imposes penalties upon licensees in accordance with the disciplinary guidelines prescribed in Florida Administrative Code Rule 64B See Parrot Heads, Inc. v. Dep't of Bus. and Prof'l Reg., 741 So. 2d 1231 (Fla. 5th DCA 1999). 42. Rule 64B provides that the penalty for violating section is a $2,500 fine and revocation of the massage therapist's license. 43. Rule 64B (4) provides that, in applying thp penalty guidelines, the following aggravating and mitigating circumstances may be taken into account, allowing the Board to deviate from the penalties for violations charged: (a) The danger to the public; (b) The length of time since the violation; 13

18 4930 (c) The number of times the licensee has been previously disciplined by the Board; (d) The length of time licensee has practiced; (e) The actual damage, physical or otherwise, caused by the violation; (f) The deterrent effect of the penalty imposed; (g) The effect of the penalty upon the licensees livelihood; (h) Any effort of rehabilitation by the licensee; (i) The actual knowledge of the licensee pertaining to the violation; (j) Attempts by licensee to correct or stop violation or refusal by licensee to correct or stop violation; (k) Related violations against licensee in another state including findings of guilt or innocence, penalties imposed and penalties served; (I) Actual negligence of the licensee pertaining to any violation; (m) Penalties imposed for related offenses under subsections (1) and (2) above; (n) Any other mitigating or aggravating circumstances. 44. Because the penalty recommended is within the disciplinary guidelines, it is unnecessary to make any findings 14:

19 4931 related to the aggravating or mitigating factors set out in rule 64B (4). RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health, Board of Massage Therapy, finding that Ms. Tao violated section (1)(p), by violating section For these violations, it is recommended that the Board impose a $2,500 administrative fine on Respondent, revoke Respondent's license to practice massage therapy, and require Respondent. to pay the Department's costs of investigation and prosecution of this matter. DONE AND ENTERED this 25th day of April, 2017 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida (850) Fax Filing (850) Filed with the Clerk of the Division of Administrative Hearings this 25th day of April,

20 4932 COPIES FURNISHED: Carrie Beth McNamara, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida (eserved) Oaj S. Gilani, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida (eserved) Si Fang Tao 335 Rome Street San Francisco, California Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida (eserved) Claudia Kemp, JD, Executive Director Board of Massage Theraphy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida, (eserved) 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. 16

21 DEPARTMENT OF HEALTH, STATE OF FLORIDA BOARD OF MASSAGE THERAPY PETITIONER, v. CASE NO SI FANG TAO, LMT, RESPONDENT. ADMINISTRATIVE COMPLAINT COMES NOW, Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Massage Therapy against Respondent, Si Fang Tao, ant in support thereof alleges: 1. Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 480, Florida Statutes. 2. At all times material to this Complaint, Respondent was a licensed massage therapist within the state of Florida, having been issued license number MA on or about April 21, 2014.

22 3. Respondent's address of record is 9210 Northlake Parkway, Apartment 107, Orlando, Florida At all times material to this Complaint, Respondent owned and operated Massage Connection 1, located at South Orange Blossom Trail, Suite A 209, Orlando, Florida At all times material to this Complaint, Respondent was the sole massage therapist working at Massage Connection In approximately June 2015, the Metropolitan Bureau of Investigation (MBI) in Orlando conducted an undercover investigation of Respondent's establishment for suspected acts of prostitution. 7. On or about June 12, 2015, an undercover MBI officer, Q.A. (Officer Q.A.), presented at Respondent's establishment and posed as a client. 8. Officer Q.A. paid $80.00 upfront for a si -minute massage from Respondent. 9. Respondent introduced herself to Officer Q.A. "Michelle," and led him to a massage room. 10. Officer Q.A. disrobed completely and laid face down on the massage table. DOH v. Si Fang Tao, LMT 2 Case No

23 11. During the course of the massage, Respondent did not drape Officer Q.A.'s buttocks. 12. When Officer Q.A. turned over and laid on his back, Respondent did not drape Officer Q.A.'s genitals. 13. During the course of the massage, Respondent repeatedly touched Officer Q.A.'s inner thighs, lightly touching them with the back of her hands, palm of her hands, and/or fingernails. 14. During the course of the massage, Respondent pointed to Officer Q.A.'s penis and gestured with her fist clenched in an upward motion, indicating masturbation. Respondent then said "I can massage your full body" and asked Officer Q.A. how much he would be willing to pay for this. 15. When Officer Q.A. offered to pay $40.00 or $50.00, Respondent said "No, I don't do that," but when Officer Q.A. offered to pay $80.00, Respondent agreed by saying "Yes." 16. Respondent told Officer Q.A. not to tell anyone that she was doing this and then asked Officer Q.A. to pay her the money. 17. Officer Q.A. handed Respondent partial payment of $50.00 and Respondent left the room. DOH v. Si Fang Tao, LMT 3 Case No

24 18. When Respondent returned to the room, she removed her shirt, exposing her breasts to Officer Q.A. 19. When Officer Q.A. asked her how much it would cost for oral sex, Respondent shook her head, indicating that she would not dlo that. 20. Respondent then began massaging Officer Q.A. again and lightly touched his penis. Officer Q.A. stopped Respondent, indicating that he did not want to proceed. 21. On or about July 8, 2015, another undercover MBI officer, F.M. (Officer F.M.) presented to Respondent's establishment posing as a client. 22. Officer F.M. paid $55.00 upfront for a thirty-minute massage from Respondent. 23. Respondent led Officer F.M. to a massage room anti introduced herself as "Crystal." 24. Officer F.M. disrobed completely and laid face down on the massage table. 25. Respondent did not drape Officer F.M.'s buttocks before she began the massage. DOH v. Si Fang Tao, LMT 4 Case No. 201S-21481

25 26. During the course of the massage, when Officer F.M. flipped over onto his back, Respondent covered his genitals with a small towel. 27. Respondent then placed her hand on top of Officer F.M.'$ penis and asked Officer F.M. if he wanted Respondent to massage him there. Respondent stated she had a very good technique and gestured with both her fists clenched in an upward and downward motion, indicating masturbation. 28. When Officer F.M. stated that what she was indicating looked like it would hurt, Respondent replied that she used a special lotion and would rub him "very good." 29. Officer F.M. indicated to Respondent that he wanted oral sex. Respondent refused, stating that she does not do that, but offered to lift her shirt up to show her breasts instead. Officer F.M. declined. 30. Officer F.M. asked Respondent if he could receive a nude massage if he returned to Respondent's establishment. Respondent instead offered to show Officer F.M. her breasts for five minutes, but Officer F.M. again declined. 31. Officer F.M. then asked Respondent how much it would DOH v. Si Fang Tao, LMT 5 Case No

26 cost to get a "fully body massage" and pointed at his penis, Respondent indicated it would cost an extra $ Officer F.M. declined. 32. Both undercover officers later positively identified Respondent as the massage therapist that offered to perform sexual acts in exchange for money and Respondent was arrested for: 1) Offering to Engage in Prostitution; 2) Entering or Remaining for the Purpose of Prostitution; and 3) Receiving a Person into a Place for the Purpose of Prostitution. 33. Section (1)(p), Florida Statutes ( )1 subjects a massage therapist to discipline for violating any provision of Chapter 480 or 456, or any rules adopted pursuant thereto. 34. Section , Florida Statutes ( ), provides that: 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. DOH v. Si Fang Tao, LMT Case No

27 35. "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. (Rule 64B (2), Florida Administrative Code (2013)) 36. Respondent engaged in sexual misconduct when she used the massage therapist-patient 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 of massage in one or more of the following ways: a) When Respondent did not drape Officer Q.A.'s buttocks and/or genitals; b) When Respondent repeatedly touched Officer Q.A.'s inner thighs with the back of her hand, palm of her hand, and/or fingernails; c) When Respondent offered to perform masturbation ori Officer Q.A. in exchange for money; d) When Respondent lifted her shirt and exposed her breast. to Officer Q.A.; DOH v. Si Fang Tao, LMT 7 Case No

28 e) When Respondent touched Officer Q.A.'s penis; f) When Respondent did not drape Officer F.M.'s buttocks before beginning the massage; g) When Respondent offered to expose her breasts to Officer F.M.; h) When Respondent placed her hand on top of Officer penis; and/or 1) When Respondent offered to perform masturbation on Officer F.M. in exchange for money. 37. Based on the foregoing, Respondent violated section (1)(p), Florida Statutes ( ), through a violation of Section , Florida Statutes ( ). WHEREFORE, the Petitioner respectfully requests that the Board of Massage Therapy enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of t1-11 Respondent on probation, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. DOH v. Si Fang Tao, LMT 8 Case No

29 SIGNED this )-1t( A day of k(.rcia John H. Armstrong, MD, FACS Surgeon General and Secretary CLERK: FLE DEPARTMENT OF HEALTH DEPUTY CLERK DATA, -14-A) PCP: 3/3/16 PCP Members: Mr. Whitridge & Ms. Havard Oaj Assistant G ral Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL Florida Bar # (850) (850) FAX NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section and , Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearin is requested. A request or petition for an administrativ hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule (2), Florida Administrative Code. If Respondent fail to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule (4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule (5), Florida Administrative Code. DOH v. Si Fang Tao, LMT Case No

30 Mediation under Section , Florida Statutes, is not available to resolve this Administrative Complaint. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section (4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent, in addition to any other discipline imposed. DOH v. Si Fang Tao, LMT 10 Case No