STATE OF FLORIDA BOARD OF MASSAGE THERAPY DEPARTMENT OF HEALTH, Petitioner, v. CASE NO. 2015-26895 DANIEL C. KAELIN, L.M.T., Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner Department of Health and files this Administrative Complaint before the Board of Massage Therapy (hereinafter Board) against Respondent Daniel C. Kaelin, L.M.T., and alleges: 1. Petitioner is the state agency charged with regulating the practice of Massage Therapy pursuant to section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 480, Florida Statutes. 2. At all times material to this Complaint, Respondent was a licensed massage therapist in the State of Florida, having been issued license number MA 59264.
3. Respondent's address of record is 4364 Ripkin Circle West, Jacksonville, Florida 32224. 4. On or about July 13, 2015, M.H., a 45-year-old female, presented to Chiropractic Plus, located at 135 Professional Drive, Suite 105, Ponte Vedra, Florida 32082, for a 90-minute massage to be performed by Respondent. 5. Before the massage, M.H. undressed and lay on her stomach, completely nude, covered by a sheet. 6. Respondent began to massage M.H. 7. During or around the latter half of the massage, Respondent asked M.H. to turn over onto her back. 8. After massaging her right leg, Respondent's thumb brushed against M.H.'s labia. 9. Respondent then proceeded to stimulate M.H.'s clitoris and asked her if it "felt good." 10. Respondent then inserted his fingers into M.H.'s vagina and continued to penetrate her with his fingers until she had an orgasm. 11. Respondent then stood up and told M.H., "I want to fuck you." 12. Respondent then began to massage M.H.'s head. 2
nipples. 13. Respondent then touched M.H.'s breasts and pinched her 14. Respondent then looked at M.H. and said, "This never happened." 15. M.H. dressed and left the establishment. 16. Respondent's actions were outside the scope of practice or the scope of generally accepted examination or treatment. COUNT I 17. Petitioner realleges and incorporates paragraphs one through 16 as if fully set herein. 18. Section 480.046(1)(p), Florida Statutes (2015), provides that violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto constitutes grounds for discipline by the Board of Massage Therapy. 19. Section 480.0485, Florida Statutes (2015), prohibits sexual misconduct in the practice of massage therapy and states, in pertinent part, that: Sexual misconduct in the practice of massage therapy means 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 3
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. Respondent engaged in sexual misconduct by using the massage therapist-patient relationship to induce or attempt to induce a patient to engage, or to engage or attempt to engage a patient, in sexual activity outside the scope of practice of massage therapy when he: a. touched M.H.'s labia; b. stimulated M.H.'s clitoris and asked if it "felt good;" c. inserted his fingers into M.H.'s vagina; d. made M.H. have an orgasm; e. told M.H., "I want to fuck you;" and/or f. touched M.H.'s breasts and pinched her nipples. 21. Based on the foregoing, Respondent violated Section 480.046(1)(p), Florida Statutes (2015), through a violation of Section 480.0485, Florida Statutes (2015), when she induced or attempted to induce the detective to engage, or engaged or attempted to engage the detective in sexual activity outside the scope of practice or the scope of generally accepted examination. 4
COUNT II 22. Petitioner realleges and incorporates paragraphs one through 16 as if fully set herein. 23. Section 480.046(1)(p), Florida Statutes (2015), provides that violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto constitutes grounds for discipline by the Board of Massage Therapy. 24. Rule 64B7-26.010(1) and (3) of the Florida Administrative Code (F.A.C.) (2015), absolutely prohibits sexual activity by any person or persons in any massage establishment, and provides that no licensed massage therapist shall use the therapist-client relationship to engage in sexual activity with any client or to make arrangements to engage in sexual activity with any client. Rule 64B7-26.010(4), F.A.C., defines "sexual activity" as: [A]ny direct or indirect physical contact by any person or between person which is intended to erotically stimulate either person or both or which is likely to cause such stimulation and includes sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse. For purposes of this subsection, masturbation means the manipulation of any body tissue with the intent to cause sexual arousal. As used herein, sexual activity can involve the use of any device or object and is not dependent on whether penetration, orgasm, or ejaculation has occurred. 5
25. Respondent used the therapist-client relationship to engage in sexual activity with M.H. in the massage establishment when he: a. touched M.H.'s labia; b. stimulated M.H.'s clitoris and asked if it "felt good;" c. inserted his fingers into M.H.'s vagina; d. made M.H. have an orgasm; e. told M.H., "I want to fuck you;" and/or f. touched M.H.'s breasts and pinched her nipples. 26. Based on the foregoing, Respondent violated Section 480.046(1)(p), Florida Statutes (2015), through a violation of Rule 6467-26.010(1) and/or (3), F.A.C. (2015), by using the therapist-client relationship to engage in sexual activity with a client. WHEREFORE, the Petitioner respectfully requests that the Board of Massage Therapy enter an order imposing one or more of the following penalties: permanent revocation or suspension of license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, continuing education and/or any other relief that the Board deems appropriate. 6 DOH v. Daniel Kaelin,
SIGNED this c.7, 9" e2 ) S day of, 2018. Celeste Philip, MD, MPH Surgeon General and Secretary FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK Angel Sanders DATE OCT 3 1 2018 PCP : 10/31/18 PCP Members: Victoria Drago, LMT, Robyn Havard Gerald C. Henley, II Assistant General Counsel Florida Bar No. 1005574 DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Telephone (850) 558-9832 Fax (850) 245-4684 Gerald.Henley@flhealth.gov 7
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), 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. Please be advised that mediation under Section 120.573, Florida Statutes, is not available for administrative disputes involving this agency action. 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)1 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. 8