STATE OF FLORIDA DEPARTMENT OF HEALTH

Transcription

1 Final Order No. DOH QVIQA STATE OF FLORIDA DEPARTMENT OF HEALTH By: FILED DATE -132_10 ( 1 Department of Health C, 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. Nazario) to practice as a massage therapist in the State of Florida. Mr. Nazario holds license number MA His address of record is 2238 Raefford Rd., Orlando, Florida The following Findings of Fact and Conclusions of Law support the Emergency Restriction of Mr. Nazario'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. Nazario'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. Nazario 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. Nazario was employed to provide massage therapy services at Hand and Stone Massage & Facial Spa (HSMFS), located in Orlando, Florida. 4. On or about May 6, 2017, Patient D.Q., a forty-one-year-old female, went to HSMFS for an hour-long massage she scheduled with Mr. Nazario. 5. Prior to May 6, 2017, Mr. Nazario had previously performed massages on Patient D.Q. at HSMFS without any issues, which is why Patient D.Q. scheduled her appointment with him on that date. 6. Patient D.Q. removed her bra but remained in her underwear for the massage. 7. During the first half of the massage, Patient D.Q. was laying facedown on the massage table. 8. While Mr. Nazario massaged the back of Patient D.Q.'s legs, he brushed against the underwear-covered area near of Patient D.Q.'s vagina. 9. Patient D.Q. did not become immediately alarmed because she believed the touch to be accidental. 2

3 10. When Mr. Nazario asked Patient D.Q. to flip onto her back, he began to massage Patient D.Q.'s upper chest. 11. Mr. Nazario had previously massaged Patient D.Q.'s upper chest area However, Mr. Nazario then lowered the drape that covered Patient D.Q.'s breasts without warning or consent. 13. Mr. Nazario began massaging Patient D.Q.'s exposed right breast, and then began to massage both of Patient D.Q.'s exposed breasts. 14. Mr. Nazario then lowered the drape even further, exposing Patient D.Q.'s abdomen. 15. Mr. Nazario began making circular motions with his hands on 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 twice. 16. Patient D.Q. then immediately bent her knees, and Mr. Nazario apologized to Patient D.Q Mr. Nazario then covered Patient D.Q. with the drape and continued to massage Patient D.Q.'s face. 18. When Mr. Nazario was finished, he stood next to the table and apologized again to Patient D.Q., saying that it would never happened again. 3

4 19. Mr. Nazario then asked if Patient D.Q. could forgive him, but she couldn't speak so she just shook her head. 20. When Patient D.Q. left the room, she reported the incident to management at HSMFS as well as law enforcement. 21. 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, massage therapists must possess good judgment and good moral character in order to safely practice massage therapy. 22. Mr. Nazario willfully abused his position as a massage therapist to sexually violate a woman who trusted him to act professionally and within the boundaries of generally accepted massage therapy and treatment. Mr. Nazario's violation of the massage therapist-patient relationship indicates that Mr. Nazario lacks the good moral character and judgment necessary to practice massage therapy. 23. Mr. Nazario'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. Nazario will cause harm to female clients in the future. This probability constitutes an immediate, 4

5 serious danger to the health, safety, or welfare of the citizens of the State of Florida. Nothing short of the immediate restriction of Mr. Nazario's license to practice as a massage therapist in the State of Florida will protect the public from the dangers created by Mr. Nazario'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 (2017), subjects a massage therapist to discipline, including restriction, for violating any provision of Chapters 480 or 456, Florida Statutes (2017), or any rules adopted pursuant thereto. 3. Section , Florida Statutes (2017), prohibits sexual misconduct in the practice of massage therapy and defines sexual misconduct, in pertinent part, as a: 5

6 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 , 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. Nazario violated Section (1)(p), Florida Statutes (2017) by violating Section , Florida Statutes (2017), and Rule , Florida Administrative Code, by engaging in sexual activity and committing sexual misconduct in one or more of the following ways: a.. Touching Patient D.Q.'s breasts; b. Touching Patient D.Q.'s vagina; and c. Exposing Patient D.Q.'s breasts. 6. Rule (5), Florida Administrative Code, lists failure to 6

7 appropriately drape a client as misconduct and negligence in the practice of massage therapy. Rule 64B (5), Florida Administrative Code, provides in pertinent part: "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." 7. Mr. Nazario violated Rule 64B (5), Florida Administrative Code, by exposing Patient D.Q.'s breasts without her specific, informed consent. 8. 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. 9. Mr. Nazario'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 (2017), it is ORDERED THAT: 7

8 1. The license of, license number MA 81226, is hereby immediately restricted to prohibit him from practicing massage therapy on female clients. 2. A proceeding seeking formal discipline of the license of David Nazario, 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). DONE and ORDERED this r 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) , extension 8102 (F) (E) Mary.Iglehart@flhealth.gov 8

9 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. 9