STATE OF FLORIDA DEPARTMENT OF HEALTH

Transcription

1 Final Order No. DOH M - MQA FILED DATE -MAR D artment of STATE OF FLORIDA DEPARTMENT OF HEALTH IN RE: The Emergency Restriction of the License of License Number: MA ORDER OF EMERGENCY RESTRICTION OF LICENSE Celeste Philip, M.D., M.P.H., State Surgeon General, ORDERS the emergency restriction of the license of, (Mr. Fomenko) to practice as a massage therapist in the State of Florida. Mr. Fomenko holds license number MA His address of record is 1221 N.W. 122 Terrace, Pembroke Pines, Florida The following Findings of Fact and Conclusions of Law support the Emergency Restriction of Mr. Fomenko's license to practice as a massage therapist in the State of Florida. FINDINGS OF FACT 1. The Department of Health (Department) is the state agency charged with regulating the practice of massage therapy pursuant to Chapters 20, 456, and 480, Florida Statutes (2017). Section (8), Florida Statutes (2017), authorizes the Department to summarily restrict Mr. Fomenko's license to practice massage therapy in the State of Florida, in accordance with Section (6), Florida Statutes (2017).

2 2. At all times material to this Order, Mr. Fomenko was licensed to practice massage therapy in the state of Florida pursuant to Chapter 480, Florida Statutes (2017). 3. At all times material to this Order, Mr. Fomenko worked at Lapis Spa, located in the Fontainebleau Hotel in Miami, Florida. 4. In or around 2017, a female client reported to Lapis Spa staff that she received a massage from Mr. Fomenko and that during the massage, Mr. Fomenko's penis became erect and he rubbed it against her body. This incident was not reported to law enforcement or the Department of Health. 5. On December 31, 2017, Client E.A., a 25-year-old female, presented to Lapis Spa for a massage with Mr. Fomenko. 6. Client E.A. was visiting the United States on vacation from Sweden. Client E.A. received a gift certificate from her mother for full body massage. 7. In preparation for her massage, Client E.A. disrobed, but kept her bikini bottoms on. 8. Client E.A. began the massage laying on her stomach. 2

3 9. Mr. Fomenko massaged Client E.A.'s back and then began to massage Client E.A.'s buttocks. Client E.A. did not ask for Mr. Fomenko to touch her buttocks and did not provide informed consent for him to do so. 10. Mr. Fomenko then asked Client E.A. to turn over and lay on her back. Client E.A. complied. 11. Mr. Fomenko did not place a draping over Client E.A.'s breasts, leaving them exposed. 12. Client E.A. did not ask for her breasts to be exposed and did not consent to Mr. Fomenko exposing her breasts. 13. Mr. Fomenko poured massage oil on Client E.A.'s breasts and began to rub her breasts. 14. Client E.A. did not consent to Mr. Fomenko touching her breasts. 15. Mr. Fomenko proceeded to rub Client E.A.'s abdomen and then slid his oiled, ungloved hand under Client E.A.'s bikini bottom. 16. Mr. Fomenko inserted one-to-two fingers into Client E.A.'s vagina and then removed them. Mr. Fomenko repeated this movement for approximately one minute.

4 17. When he was done, Mr. Fomenko informed Client E.A. that the massage was over. 18. Client E.A. got dressed, left the spa, and immediately reported Mr. Fomenko's actions to her family. 19. Additionally, Client E.A. reported her assault to the Miami Beach Police Department (MBPD). 20. A MBPD officer interviewed Mr. Fomenko regarding the incident. Mr. Fomenko admitted to touching Client E.A.'s breasts and inserting his fingers into her vagina. 21. A nurse examined Client E.A. and observed redness on and around Client E.A.'s vagina, indicative of digital penetration. 22. Mr. Fomenko was arrested and charged with sexual battery, a felony, in Miami-Dade County case number 2018-CF This charge is currently pending resolution. 23. Clients of massage therapists are placed in isolated, vulnerable settings where they can be subject to abuse by their massage therapists. Due to the potential for abuse that is inherent under these circumstances, 4

5 massage therapists must possess good judgment and good moral character in order to safely practice massage therapy. 24. Mr. Fomenko willfully abused his position as a massage therapist to violate his female client who trusted him to act professionally and within the boundaries of generally accepted massage therapy and treatment. Mr. Fomenko also jeopardized his client's health by inserting oiled and ungloved fingers into her vagina during the course of the massage. Additionally, there is indication that Mr. Fomenko engaged in sexually inappropriate behavior with a past female client. Mr. Fomenko's egregious violation of the massage therapist-patient relationship indicates that Mr. Fomenko lacks the good moral character and judgment necessary to practice massage therapy. 25. Mr. Fomenko's lack of good judgment and moral character and his disregard for the laws and regulations governing massage therapists in this state represent a significant likelihood that Mr. Fomenko will cause harm to female clients in the future. This probability constitutes an immediate, serious danger to the health, safety, or welfare of the citizens of the State of Florida. Nothing short of the immediate restriction of Mr. Fomenko's license to practice as a massage therapist in the State of Florida will protect 5

6 the public from the dangers created by Mr. Fomenko's continued practice of massage therapy on female clients. CONCLUSIONS OF LAW Based on the foregoing Findings of Fact, the State Surgeon General concludes as follows: 1. The State Surgeon General has jurisdiction over this matter pursuant to Sections and (8), Florida Statutes (2017), and Chapter 480, Florida Statutes (2017). 2. Section (1)(p), Florida Statutes (2016), subjects a massage therapist to discipline, including restriction, for violating any provision of Chapters 480 or 456, Florida Statutes, or any rules adopted pursuant thereto. 3. Section , Florida Statutes (2016), prohibits sexual misconduct in the practice of massage therapy and defines sexual misconduct, in pertinent part, as: 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. 6

7 4. Rule , 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 Mr. Fomenko violated Section , Florida Statutes (2017), and Rule , Florida Administrative Code, by engaging in sexual activity and committing sexual misconduct by: a. Massaging Client E.A.'s buttocks without prior informed consent; b. Rubbing Client E.A.'s breasts without prior informed consent; and c. Inserting his fingers into Client E.A.'s vagina. 6. Section (6), Florida Statutes (2017), authorizes the State Surgeon General to restrict a massage therapist's license upon a finding that the massage therapist presents an immediate, serious danger to the public health, safety; or welfare. 7. Mr. Fomenko's continued unrestricted ability to provide massage services to female clients constitutes an immediate, serious danger to the 7

8 health, safety, or welfare of the public and this summary procedure is fair under the circumstances to adequately protect the public. WHEREFORE, in accordance with Section (6), Florida Statutes (2017), it is ORDERED THAT: 1. The license of, license number MA 82162, is hereby immediately restricted to prohibit him from practicing massage therapy on female clients. 2. A proceeding seeking formal discipline of the license of Sebastian A. Fomenko, L.M.T., to practice as a massage therapist in the State of Florida will be promptly instituted and acted upon in compliance with Sections and (6), Florida Statutes (2017). [Signatures appear on following page] 8

9 DONE and ORDERED this day of WI61(q) WCeleste Philip, M.D., M.P.H. Surgeon General and Secretary PREPARED BY: Kristen M. Summers Assistant General Counsel FL DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida Florida Bar Number (P) (850) (F) (850) (E) 9

10 NOTICE OF RIGHT TO JUDICIAL REVIEW Pursuant to Sections (6) and , Florida Statutes, this Order is judicially reviewable. Review proceedings are governed by the Florida Rules of Appellate Procedure. Review proceedings are commenced by filing a Petition for Review, in accordance with Florida Rule of Appellate Procedure 9.100, with the District Court of Appeal, accompanied by a filing fee prescribed by law, and a copy of the Petition with the Agency Clerk of the Department within 30 days of the date this Order is filed. 10