DEPARTMENT OF HEALTH, STATE OF FLORIDA DEPARTMENT OF HEALTH PETITIONER, V. CASE NO. 2017-09262 DAVID NAZARIO, L.M.T., RESPONDENT. ADMINISTRATIVE COMPLAINT Petitioner Department of Health files this Administrative Complaint before the Board of Massage Therapy (Board) against David Nazario, L.M.T., and in support thereof alleges: 1. Petitioner is the state agency charged with regulating the practice of massage therapists pursuant to Section 20.43, Florida Statutes (2017); Chapter 456, Florida Statutes (2017); and Chapter 480, Florida Statutes (2017). 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 81226, and worked at Hand and Stone Massage and Facial Spa (HSMFS), located in Orlando, Florida.
1. Respondent's address of record is 2238 Raeford Rd., Orlando, Florida 32806. 2. On or about May 6, 2017, Respondent performed a massage on Patient D.Q., a forty-one-year-old woman. 3. Prior to beginning the massage, Patient D.Q. removed her bra but remained in her underwear. 4. During the first half of the massage, Patient D.Q. was laying facedown on the massage table. 5. While Respondent massaged the back of Patient D.Q.'s legs, Respondent brushed against the underwear-covered area near Patient D.Q.'s vagina. 6. When Respondent asked Patient D.Q. to flip onto her back, Respondent began to massage Patient D.Q.'s upper chest. 7. Respondent then lowered the drape that covered Patient D.Q.'s breasts without warning or consent. 8. Respondent began to massage Patient D.Q.'s exposed breasts. 9. Respondent then lowered the drape even further, exposing Patient D.Q.'s abdomen. 10. Respondent began making circular motions with his hands on DOH v. David Nazario, 2
Patient D.Q.'s abdomen, and eventually moved his fingers under Patient D.Q.'s underwear and touched the outside of Patient D.Q.'s vagina. 11. Patient D.Q. bent her knees, and Respondent apologized. 12. Respondent then covered Patient D.Q. with the drape and continued to massage Patient D.Q.'s face. 13. When Respondent was finished, he stood next to the table and apologized again to Patient D.Q., saying that it would never happened again. 14. Respondent then asked Patient D.Q. to forgive him. 15. When Patient D.Q. left the room, she reported the incident to management at HSMFS as well as law enforcement. 16. Respondent's touching of Patient D.Q.'s breasts and vagina was outside the scope of the practice of a massage therapist. COUNT I 17. Petitioner realleges and incorporates paragraphs one (1) through sixteen (16), as if fully set forth herein. 18. 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. 19. Section 480.0485, Florida Statutes (2017), prohibits sexual DOH v. David Nazario, L.M.T. 3
misconduct in the practice of massage therapy and defines sexual misconduct, in pertinent part, as a: Miolation 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. 20. 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 stimulate either person or both or which is likely to cause such stimulation... 21. Respondent engaged in unlawful sexual activity, and engaged or attempted to engage in sexual misconduct in one or more of the following ways: a. Exposing Patient D.Q.'s breasts, b. Touching Patient D.Q.'s breasts, and/or DOH v. David Nazario, L.M.T. 4
c. Touching Patient D.Q.'s vagina, 22. 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 23. Petitioner realleges and incorporates paragraphs one (1) through sixteen (16), as if fully set forth herein. 24. Section 480.046(1)(p), Florida Statutes (2016), subjects a massage therapist to discipline for violating any provision of Chapters 480 or 456, Florida Statutes, or any rules adopted pursuant thereto. 25. 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. 26. Respondent exposed Patient D.Q.'s breasts without specific informed consent. 27. Based on the foregoing, Respondent has violated 480.046(1)(p), Florida Statutes (2017), by violating Rule 64B7-30.001(5), Florida Administrative Code. DOH v. David Nazario, 5
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 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 Z9 day of 2017. Celeste Philip, M.D., M.P.H. Surgeon General and Secretary CLERK FILED DEPARTMENT OF HEALTH DEPUTY CLERK aveflandenr DATE JUL 2 5 17 Mary lehart Esq. Floriria ar Number 93590 Assis M nt General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 (p) 850-558-9856 (f) 850-245-4662 (e) Mary.Iglehart flhealth.gov PCP: July 24, 2017 PCP Members: Wasylyna & Drago DOH v. David Nazario, 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)1 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. David Nazario, L.M.T. 7