DEPARTMENT OF HEALTH, STATE OF FLORIDA DEPARTMENT OF HEALTH PETITIONER, V. CASE NO. 2018-10127 JUAN PABLO MENDIZ, L.M.T., RESPONDENT. ADMINISTRATIVE COMPLAINT Petitioner, Department of Health, files this Administrative Complaint before the Board of Massage Therapy (Board) against Respondent, Juan Pablo Mendiz, L.M.T., and 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 licensed to practice as a massage therapist within the State of Florida, having been issued license number MA 81111. 3. At all times material to this Complaint, Respondent's address of record was 2301 Anchor Court, Fort Lauderdale, Florida 33312.
4. At all times material to this Complaint, Respondent worked as a massage therapist at Massage Envy in Fort Lauderdale, Florida. 5. On or about March 9, 2018, Respondent provided massage therapy services to Patient O.L., a 21-year-old female. 6. Respondent stretched Patient O.L.'s legs in a manner that exposed her vagina. 7. Respondent lifted the sheet covering Patient O.L. in a manner that exposed Patient O.L.'s buttocks, breast(s), and/or vagina while she flipped over. 8. Patient 01. did not give Respondent her specific informed consent to expose her buttocks, breast(s), and/or vagina. 9. Respondent massaged and/or touched Patient O.L.'s groin. 10. Respondent moved the sheet, exposed Patient O.L.'s vagina, and massaged and/or touched her pubic mound. 11. Respondent digitally penetrated Patient O.L.'s vagina. 12. Respondent's actions were outside the scope of the practice of massage therapy and/or outside the scope of generally accepted examination of treatment of a patient. COUNT I DOH v. Juan Pablo Mendiz, L.M.T. 2
13. Petitioner realleges and incorporates paragraphs one through twelve, as if fully set forth herein. 14. Section 480.046(1)(p), Florida Statutes (2017), subjects a massage therapist to discipline for violating any provision of Chapters 480 or 456, Florida Statutes, or any rules adopted pursuant thereto. 15. Section 480.0485, Florida Statutes (2017), prohibits sexual misconduct in the practice of massage therapy and defines sexual misconduct, in pertinent part, as a: [V]iolation 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. 18. Rule 64B7-26.010, Florida Administrative Code, provides in pertinent part: (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 client and; (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 DOH v. Juan Pablo Mendiz, L.M.T. 3
stimulate either person or both or which is likely to cause such stimulation... 19. Respondent engaged in sexual misconduct by engaging or attempting to engage in sexual activity outside the scope of the practice of massage therapy or the scope of generally accepted examination or treatment of massage therapy patients in one or more of the following ways: a. By exposing Patient O.L.'s vagina; b. By exposing Patient O.L.'s buttocks; c. By exposing Patient O.L.'s breast(s); d. By touching Patient O.L.'s groin; e. By touching Patient O.L.'s pubic mound; and/or f. By digitally penetrating Patient O.L.'s vagina. 20. Based on the foregoing, Respondent has violated 480.046(1)(p), Florida Statutes (2017), by violating Section 480.0485, Florida Statutes (2017), and/or Rule 64B7-26.010, Florida Administrative Code. COUNT II 21. Petitioner realleges and incorporates paragraphs one through twelve, as if fully set forth herein. 22. Section 480.046(1)(p), Florida Statutes (2017), subjects a DOH v. Juan Pablo Mendiz, L.M.T. 4
massage therapist to discipline for violating any provision of Chapters 480 or 456, Florida Statutes, or any rules adopted pursuant thereto. 23. Rule 64B7-30.001(5); Florida Administrative Code, provides that appropriate draping of a client shall include draping of the buttocks and genitalia of all clients, and breasts of female clients, unless the client gives specific informed consent to be undraped. 24. Respondent violated Section 480.046(1)(p), Florida Statutes (2017), by violating Rule 6487-30.001(5), Florida Administrative Code, by failing to appropriately drape one or more of the following without Patient O.L.'s specific informed consent: a. Patient O.L.'s vagina; b. Patient O.L.'s buttocks; and/or c. Patient O.L.'s breast(s). 25. Based on the foregoing, Respondent has violated 480.046(1)(p), Florida Statutes (2017), by violating Rule 64137-30.001(5), Florida Administrative Code. WHEREFORE, Petitioner respectfully requests that the Board of Massage Therapy enter an order imposing one or more of the following penalties: revocation or suspension of Respondent's license, restriction of DOH v. Juan Pablo Mendiz, L.M.T. 5
practice, imposition of an administrative fine, issuance of a reprimand, placement of Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. SIGNED this Pi day of 2018.. Celeste Philip, M.D., M.P.H. Surgeon General and Secretary CLERK: DATE: FILED DEPARTMENT OF HEALTH DEPUTY CLERK Angel StOcrerS MAY 2 4 2018 oss D. Vickers, Florida Bar No. 121717 Assistant General Counsel Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (P) 850-558-9911 (F) 850-245-4662 (E) Ross.VickersPflhealth.qov PCP: May 24, 2018 PCP Members: Jennifer Wakeman, L.M.T.; Victoria Drago, L.M.T. DOH v. Juan Pablo Mendiz, L.M.T. 6
NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, 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 hearing is requested. A request or petition for an administrative 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 28-106.111(2), Florida Administrative Code. If Respondent fails 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 28-106.111(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 28-106.2015(5), Florida Administrative Code. Mediation pursuant to Section 120.573, 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 456.072(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. Juan Pablo Mendiz, L.M.T. 7