STATE OF FLORIDA DEPARTMENT OF HEALTH

Transcription

1 Final Order No. DOH DATE STATE OF FLORIDA DEPARTMENT OF HEALTH By: Deputy Agency Clerk 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. Aizpurua), to practice as a massage therapist in the State of Florida. Mr. Aizpurua holds license number MA His address of record is NW 72nd Terrace, Doral, Florida The following Findings of Fact and Conclusions of Law support the Emergency Restriction of Mr. Aizpurua'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 (2018). Section (8), Florida Statutes (2018), authorizes the Department to summarily restrict Mr. Aizpurua's license to practice massage therapy in the State of Florida, in accordance with Section (6), Florida Statutes (2018).

2 Case Number: At all times material to this Order, Mr. Aizpurua was licensed to practice massage therapy in the state of Florida pursuant to Chapter 480, Florida Statutes, holding license number MA At all times material to this Order, Mr. Aizpurua was employed at Massage Envy, in Hollywood, Florida. 4. On July 14, 2018, Patient L.R., a 48-year-old female, presented to Massage Envy with upper body pain. 5. Patient L.R. provided written consent for her upper body to be massaged, but did not consent for her lower body to be massaged. 6. Mr. Aizpurua was assigned to perform a massage on Patient L.R. 7. During the session, Mr. Aizpurua complimented Patient L.R.'s physical appearance and her skin. 8. Mr. Aizpurua told Patient L.R. that he was going to try some "Thai message'''. techniques on her to assist with her pain. 9. Such techniques were not offered by Massage Envy, nor considered acceptable for its employees to perform. 1 Thai massage, also commonly known as "yoga massage," is a form of assisted yoga performed by the massage therapist, with the patient completely passive throughout. The patient generally remains fully clothed throughout the massage and the massage typically occurs on the floor. 2

3 10. While Patient L.R. was lying face down on the message table, Mr. Aizpurua climbed up on the table and positioned his body on top of hers. 11. While performing the "Thai massage" techniques, Mr. Aizpurua pressed his penis against Patient L.R.'s back and it became erect. 12. Patient L.R. felt Mr. Aizpurua's erection pressing against her back. 13. Mr. Aizpurua continued to perform the "Thai massage" techniques on Patient L.R. after his penis became erect, and did not disengage from the massage or leave the room. 14. Patient L.R. felt uncomfortable about Mr. Aizpurua's behavior and told Mr. Aizpurua that she did not want to be face down anymore. 15. Mr. Aizpurua then got down off the table and began to massage Patient L.R.'s inner thigh, without her consent. 16. After massaging Patient L.R.'s inner thigh, Mr. Aizpurua quickly massaged her head and then ended the massage. 17. Although Patient L.R. paid for a full hour massage, it lasted only a few minutes. 18. Patient L.R. reported the incident to the manager of Massage Envy. 3

4 19. The same day, Massage Envy terminated Mr. Aizpurua's employment due to his inappropriate behavior toward Patient L.R. 20. The level of care, skill, and treatment that is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumstances ("standard of care") requires that there be no contact between the genitals of the massage therapist and the patient. 21. The standard of care also requires that, if a message therapist becomes sexually aroused during a massage, he must cease the massage and leave the treatment room until he is no longer aroused. The massage therapist must not continue to touch a patient while sexually aroused or make the patient aware of the sexual arousal. 22. An independent licensed massage therapist expert who practices massage therapy evaluated the facts of Mr. Aizpurua's behavior toward Patient L.R. 23. The expert opined that Mr. Aizpurua failed to meet the standard of care for a massage therapist by pressing his penis into Patient L.R.'s back; by making Patient L.R. aware of his erection; and by failing to stop the 4

5 massage and excuse himself from the room until he was no longer sexually aroused. 24. Patients 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 and professionally practice massage therapy. Massage therapists must also practice according to the standard of care established for their profession. 25. Mr. Aizpurua abused his position as a massage therapist to inappropriately touch a female patient who trusted him to act professionally and within the boundaries of generally accepted massage therapy and treatment. Mr. Aizpurua's violation of the massage therapist-patient relationship indicates that Mr. Aizpurua lacks the good moral character and judgment necessary to practice massage therapy. 26. Mr. Aizpurua also failed to practice massage therapy according to the minimum standard of care by touching a female patient with his genitals and continuing to massage the patient after becoming sexually aroused. 5

6 27. Mr. Aizpurua's lack of good judgment and moral character, his disregard for the laws and regulations governing massage therapists in this state, and his failure to practice massage therapy according to the minimum standard of care, represent a significant likelihood that Mr. Aizpurua will cause harm to female patients 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. Aizpurua's license to practice as a massage therapist in the State of Florida will protect the public from the dangers created by Mr. Aizpurua'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 (2018), and Chapter 480, Florida Statutes (2018). 6

7 2. Section (1)(p), Florida Statutes (2018), 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 (2018), prohibits sexual misconduct in the practice of massage therapy and defines sexual misconduct, in pertinent part, as: [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. 4. Mr. Aizpurua violated Section (1)(p), Florida Statutes (2018), through a violation of Section , Florida Statutes (2018), by using the massage therapist-patient relationship to engage or attempt to engage a patient in sexual activity outside the scope of practice in one or more of the following ways: a. Pressing his penis into Patient L.R.'s back; and/or b. Touching Patient L.R.'s inner thigh without her consent. 5. Rule 64B , Florida Administrative Code, provides in pertinent part: 7

8 (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. Aizpurua violated Section (1)(p), Florida Statutes (2018), through a violation of Rule 64B (3), Florida Administrative Code, by using the massage therapist-patient relationship to engage in sexual activity with a patient in one or more of the following ways: a. Pressing his penis into Patient L.R.'s back; and/or b. Touching Patient L.R.'s inner thigh without her consent. 7. Section (1)(i), Florida Statutes (2018), subjects a massage therapist to discipline, including restriction, for the failure to practice massage with that level of care, skill, and treatment which is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumstances. 8. Mr. Aizpurua violated Section (1)(i), Florida Statutes (2018), by failing to practice massage therapy with the required level of care, skill, and treatment in one or more of the following ways: 8

9 a. Touching Patient L.R. with his penis; b. Making Patient L.R. aware of his erection; In Re: Emergency Restriction of the License of c. Continuing to touch Patient L.R. after obtaining an erection; and/or d. Failing to leave the room until he was no longer sexually aroused. 9. Section (6), Florida Statutes (2018), 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. 10. Mr. Aizpurua'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 (2018), it is ORDERED THAT: 1. The license of, license number MA 85892, is hereby immediately restricted to prohibit, from practicing massage therapy on female clients. 9

10 2. A proceeding seeking formal discipline of the license of Aitor Aizpurua, 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 (2018). DONE and ORDERED this.25-r,( day of Alo,i6.1 6A/t-, Celest Philip, M.D., M.P. Surgeon General and Secretary PREPARED BY: Andrew J. Pietrylo, Jr. Assistant General Counsel FL DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL Florida Bar Number (P) (850) (F) (850) (E) Andrew.Pietrylo@flhealth.gov 10

11 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. 11