STATE OF FLORIDA DEPARTMENT OF HEALTH

Transcription

1 Final Order No. DOH ERO -MQA L DATE' CT A I! 'epartment firpth STATE OF FLORIDA DEPARTMENT OF HEALTH Deputy Agency Clerk IN RE: The Emergency Restriction of the License of 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. Duan) to practice as a massage therapist in the State of Florida. Mr. Duan holds license number MA His address of record is 7500 Ulmerton Rd., Apt. # 26, Largo, Florida The following Findings of Fact and Conclusions of Law support the Emergency Restriction of Mr. Duan'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 State Surgeon General to summarily restrict Mr. Duan's license to practice as a massage therapist in the state of Florida, in accordance with Section (6), Florida Statutes (2017).

2 2. At all times material to this Order, Mr. Duan was licensed to practice massage therapy in the state of Florida pursuant to Chapter 480, Florida Statutes. 3. At all times material to this Order, Mr. Duan was employed to provide massage therapy services at Body & Sole Massage (Body & Sole), located within The Avenues Mall in Jacksonville, Florida. Facts Relating to Patient H.V. 1. On or about February 11, 2017, Patient H.V. went to Body & Sole for a massage. 2. Mr. Duan was assigned to be her masseuse. 3. When Patient H.V. and Mr. Duan entered the massage room, Mr. Duan pointed to a hook on the wall and said, "Clothes there," and exited the room. 4. Patient H.V. undressed down to her underwear before Mr. Duan asked her if she was ready from outside the room. 5. Patient H.V. told him, "No," and quickly laid face-down on the massage table and covered herself with a sheet. 2

3 6. Mr. Duan then entered the room, pulled Patient H.V.'s underwear down to just below her buttocks, and tucked the sheet underneath Patient H.V.'s body. 7. Mr. Duan massaged Patient H.V.'s back, neck, and arms. 8. Next, Mr. Duan moved the sheet covering Patient H.V.'s buttocks so that one of her legs and half of her buttocks were exposed while he massaged those areas. 9. Mr. Duan then re-covered those areas with the sheet and repeated this process on the other side of Patient H.V.'s body. 10. Mr. Duan then pulled the sheet down, fully exposing Patient H.V.'s buttocks, and further massaged Patient H.V.'s buttocks. 11. Mr. Duan then pulled the sheet down lower and massaged Patient H.V.'s thighs and lower legs. 12. Mr. Duan then untucked Patient H.V.'s underwear and returned them to wher0 they were covering her buttocks, and he then re-covered her with the sheet before asking her to turn over. over. 13. Mr. Duan did not hold up the sheet for Patient H.V. as she turned 3

4 14. Once Patient H.V. was lying on her back, Mr. Duan placed a covering over her face. 15. Mr. Duan then removed the sheet from one of H.V.'s legs and began to massage that leg. 16. Mr. Duan then pulled the sheet so that Patient H.V.'s underwear was exposed. 17. Patient H.V. froze in fear, unable to speak or move. 18. Mr. Duan then began massaging Patient H.V.'s thighs. 19. Mr. Duan then removed Patient H.V.'s underwear entirely. 20. Mr. Duan then rubbed gel over Patient H.V.'s vaginal area. 21. Mr. Duan then rubbed Patient H.V.'s labia and clitoris. 22. Mr. Duan continued to rub Patient H.V.'s clitoris until Patient H.V. experienced an orgasm. 23. Then, Mr. Duan inserted his hand into Patient H.V.'s vagina. 24. Patient H.V. mumbled, "No, No," and said, "No more, I'm done." 25. Mr. Duan removed his hand from her vagina. 26. The next thing that Patient H.V. remembers is Mr. Duan rubbing gel on Patient H.V.'s nipples and squeezing them. 4

5 27. Patient H.V. told Mr. Duan to stop, which he did, and concluded the session. 28. Patient H.V. collected her belongings, paid for the massage, and went to her car where she immediately called her husband and the police to report the incident. Facts Relating to Patient D.A. 29. On or about February 15, 2017, Patient D.A. and her fiancé made an appointment for a couple's massage at Body & Sole. 30. Upon checking-in, Patient D.A. and her fiancé were placed into separate rooms, despite their appointment for a couple's massage. 31. Mr. Duan entered Patient D.A.'s room while a female massage therapist entered Patient D.A.'s fiancé's room. 32. Mr. Duan instructed Patient D.A. to take off her clothes without specifying which articles of clothing to leave on, if any. 33. Mr. Duan exited the room, and Patient D.A. removed her clothing except for her underwear and laid face-down on the massage table with a sheet covering her. 5

6 34. When Mr. Duan returned to the room, he began to massage Patient D.A.'s back, neck, shoulders and arms before massaging Patient D.A.'s buttocks. 35. When it was time for Patient D.A. to flip onto her back, Mr. Duan did not hold the sheet for Patient D.A. so that she could comfortably turn over. 36. Once on Patient D.A. was on her back, Mr. Duan placed a paper towel over Patient D.A.'s face and began to massage Patient D.A.'s knees and shins. 37. Eventually, Mr. Duan began to massage Patient D.A.'s pelvic and bladder area. 38. Mr. Duan's fingers then grazed Patient D.A.'s vagina over her underwear. 39. Mr. Duan used one hand to pull upwards of Patient D.A's underwear and used his other hand to touch Patient D.A's labia. 40. Mr. Duan then tried to remove Patient D.A.'s underwear, but Patient D.A.'s prevented him from doing so. 41. Mr. Duan attempted to touch Patient D.A.'s vagina, but Patient D.A. was able to stop him. 6

7 42. Mr. Duan eventually stopped, left the room, and returned with a towel to wipe the lotion he used during the massage from Patient D.A.'s legs and back. 43. Mr. Duan gave Patient D.A. a business card with the name, "John," handwritten on the back. 44. Patient D.A. was shaking as she joined her fiancé at the front desk to pay. 45. Patient D.A. reported this incident to the Jacksonville Sheriff's Office the following day. Facts Relating to Patient C.C. 46. On or about February 22, 2017, Patient C.C. went to Body & Sole to treat herself to a ninety-minute massage for her birthday. 47. Mr. Duan was assigned to be her massage therapist. 48. Prior to beginning the massage, Mr. Duan instructed Patient C.C. to undress without specifying which articles of clothing to leave on, if any. 49. Mr. Duan exited the room, and Patient C.C. removed everything except for her underwear and laid face down on the massage table, covering herself with a sheet. 7

8 50. When Mr. Duan returned to the room, he began to massage Patient C.C.'s back, neck, shoulders and arms before massaging Patient C.C.'s buttocks. 51. When it was time for Patient C.C. to flip onto her back, Mr. Duan did not hold the sheet for Patient C.C. so that she could comfortably turn over. 52. Once Patient C.C. was lying on her back, Mr. Duan placed a paper towel over her face and began massaging Patient C.C.' shoulders. 53. Later, Mr. Duan began to massage Patient C.C.'s inner thighs. 54. As Mr. Duan massaged Patient C.C.'s inner thighs, Mr. Duan's fingers grazed Patient C.C.'s vagina over her underwear. 55. Suddenly, Patient C.C.'s felt two of Mr. Duan's fingers touching her vagina. 56. Patient C.C. grabbed Mr. Duan's hand and said, "No." 57. Mr. Duan returned to massaging Patient C.C.'s thigh. 58. Mr. Duan asked Patient C.C., "You want me to licky?" and Patient C.C. told him., "No," and that she wanted Mr. Duan to massage her shoulders. 8

9 License Number: MA 80, Mr. Duan then massaged the lower portion of Patient C.C.'s legs before concluding the massage. 60. Patient C.C. did not initially report the incident to anyone until she learned that Mr. Duan had been arrested because she didn't think anyone would believe her. Facts Relating to Patient D.D. 61. In or about February or early March 2017, Patient D.D. went to Body & Sole to request a thirty-minute chair massage. 62. Patient D.D. had been to Body & Sole several times previously without incident. 63. Upon arrival, Mr. Duan approached Patient D.D. and convinced her to have a thirty-minute full-body massage instead of a chair massage. 64. Mr. Duan escorted Patient D.D. to a massage room and left her alone to undress. 65. Patient D.D. removed all of her clothing except for her underwear, and laid face-down on the massage table, covering herself with a sheet. 66. Mr. Duan began by massaging Patient D.D.'s neck, head, shoulders and upper body. 9

10 67. When Mr. Duan began to massage Patient D.D.'s back, he slid his hand down her spine and underneath her underwear, and Patient D.D. said, "No." 68. Mr. Duan then moved to the foot of the table and began massaging Patient D.D.'s lower leg. 69. Mr. Duan began to massage further and further up Patient D.D.'s leg until he reached her underwear, when he attempted to move the underwear aside. 70. Patient D.D. jerked her body and said, "No," and Mr. Duan stopped. 71. When Patient D.D. turned over, Mr. Duan held the sheet up for her. 72. Once Patient D.D. was lying on her back, Mr. Duan placed a covering over her face. 73. Mr. Duan then began to massage the front of Patient D.D.'s lower legs and worked his way further and further up her legs. 74. Once Mr. Duan reached Patient D.D.'s upper leg, he slid his hand underneath Patient D.D.'s underwear. 75. Patient D.D. smacked Mr. Duan's hands away and yelled, "No." 76. Mr. Duan stepped away from the table momentarily, and when he returned, he grabbed Patient D.D.'s ankles firmly. 10

11 77. Patient D.D. said, "No, stop. Stop," but Mr. Duan responded, "More, more." 78. Patient D.D. then said, "Done, done," and Mr. Duan left the room. 79. After Patient D.D. later saw the Mr. Duan had been arrested for similar behavior, Patient D.D. notified law enforcement about her experience. Facts Relating to Patient S.K. 80. In or about May or June 2016, Patient S.K. and her husband went to Body & Sole to receive a couple's massage. 81. Upon arrival, staff escorted Patient S.K. and her husband to a massage room. 82. Once Patient S.K. undressed to her underwear she laid on her stomach on the massage table under a sheet. 83. Due to the arrangement of the massage tables, Patient S.K. was able to see her husband's feet, but he was unable to see her. 84. Mr. Duan approached Patient S.K. as she laid on the table and removed the sheet that was covering her. 85. Mr. Duan began massaging Patient S.K.'s back, and when he got to her lower back, her pulled her underwear down below her buttocks. 11

12 86. Mr. Duan then left the room, but returned approximately three minutes later. 87. While Mr. Duan was gone, Patient S.K. pulled her underwear back up so that it was covering her buttocks, and Patient S.K. pulled the sheet back up to cover her body. 88. When Mr. Duan returned, he pulled the sheet down again, as well as Patient S.K.'s underwear and began massaging Patient S.K.'s buttocks. 89. He then massaged down Patient S.K.'s legs until it was time for Patient S.K. to turn over. 90. After turning over, Patient S.K. pulled the sheet up to her neck in order to cover as much of herself as possible. 91. Mr. Duan then lowered the sheet to the top of Patient S.K.'s cleavage and massaged Patient S.K.'s shoulders. 92. Mr. Duan then placed his fist underneath the sheet in between Patient S.K.'s breasts and moved his fist in a way that caused Patient S.K.'s breasts to move in a circular motion. 93. Since this was painful, Patient S.K. grabbed Mr. Duan's wrists and said, "No, no, no." 12

13 94. Mr. Duan then said, "Almost finished," and continued to massage in between Patient S.K.'s breasts with his fist. 95. Patient S.K. then grabbed Mr. Duan's wrists again and said, "I'm done." 96. Mr. Duan then concluded the massage without saying a word to Patient S.K. 97. Patient S.K. was reluctant to report the incident to law enforcement, but later did so. 98. Clients of massage therapists are placed in 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, massage therapists must possess good judgment and good moral character in order to safely practice massage therapy. 99. Mr. Duan willfully abused his position as a massage therapist to sexually violate five women who trusted him to act professionally and within the boundaries of generally accepted massage therapy and treatment. Mr. Duan's many violations of the massage therapist-patient relationship indicate that Mr. Duan lacks the good moral character and judgment necessary to practice massage therapy. 13

14 100. Mr. Duan's lack of good judgment and moral character and pattern of committing sexual misconduct against women demonstrate his disregard for the laws and regulations governing massage therapists in this state. Mr. Duan's egregious, repeated behavior represents a significant likelihood that Mr. Duan will continue to 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. Duan's license to practice as a massage therapist in the State of Florida will protect the public from the dangers created by Mr. Duan'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 ( ), subjects a massage therapist to discipline, including restriction, for violating any 14

15 provision of Chapters 480 or 456, Florida Statutes ( ), or any rules adopted pursuant thereto. 3. Section , Florida Statutes ( ), prohibits sexual misconduct in the practice of massage therapy and defines sexual misconduct, in pertinent part, as a: 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. 4. Rule 64B , 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. Duan violated Section (1)(p), Florida Statutes ( ) by violating Section , Florida Statutes ( ), and Rule 64B , Florida Administrative Code, by engaging in sexual activity and 15

16 committing sexual misconduct in one or more of the following ways: a. Touching Patient H.V.'s underwear; b. Exposing Patient H.V.'s buttocks; c. Touching Patient H.V.'s buttocks; d. Removing Patient H.V.'s underwear; e. Touching Patient H.V.'s labia; f. Touching Patient H.V.'s clitoris; g. Touching Patient H.V.'s vagina; h. Putting any or all of his hand inside Patient H.V.'s vagina; i. Touching Patient H.V.'s nipple; j. Squeezing Patient H.V.'s nipple; k. Touching Patient D.A.'s underwear; I. Touching Patient D.A.'s buttocks; m. Touching Patient D.A.'s labia; n. Attempting to remove Patient D.A.'s underwear; o. Attempting to touch Patient D.A.'s vagina; p. Touching Patient C.C.'s vagina over her underwear; q. Touching Patient C.C.'s vagina under her underwear; r. Offering to lick Patient C.C.'s vagina; 16

17 s. Attempting to reach underneath Patient D.D.'s underwear; t. Reaching underneath Patient D.D.'s underwear; u. Touching Patient S.K.'s underwear; v. Exposing Patient S.K.'s buttocks; and/or w. Touching in between Patient S.K.'s breasts. 6. Section (6), Florida Statutes ( ), 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. Duan's continued unrestricted ability to provide massage services to female clients constitutes an immediate, serious danger to the 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 ( ), it is ORDERED THAT: 1. The license of, license number MA 80421, is hereby immediately restricted to prohibit him from practicing massage therapy on female clients. 17

18 2. A proceeding seeking formal discipline of the license of Qiting Duan, 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 ( ). DONE and ORDERED this 0- day of Celeste Philip, M.D., M.P.H. Surgeon General and Secretary PREPARED BY: Mary A. Iglehart, Esq. Florida Bar No Assistant General Counsel Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida (P) (850) (F) (850) (E) Mary.Iglehart@flhealth.gov 18

19 NOTICE OF RIGHT TO JUDICIAL REVIEW Pursuant to Sections (6) and , Florida Statutes (2017), 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. 19