03-004789PL Department Of Health, Board Of Massage Therapy vs. Vladislau Simakov Status: Closed Recommended Order on Wednesday, July 28, 2004.

Summary: Evidence of sexual assault lacks credibility to meet the burden of clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4789PL

)

VLADISLAU SIMAKOV, )

)

Respondent. )

)

RECOMMENDE D ORDER

On June 22, 2004, an administrative hearing in this case

was held in Bradenton, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brian J. Stabley, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: J. Brent Jones, Esquire

Grossman, Roth and Partridge

1800 Second Street, Suite 777

Sarasota, Florida 34236

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations of the

Administrative Complaint are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATE MENT

By Administrative Complaint dated October 22, 2003, the

Department of Health, Board of Massage Therapy (Petitioner),

alleged that Vladislau Simakov (Respondent) violated

Sections 456.072, 480.046(1)(o), and 480.0485, Florida Statutes

(2003), related to the practice of massage therapy. The

Respondent disputed the allegations and requested an

administrative hearing. The Petitioner forwarded the matter to

the Division of Administrative Hearings, which scheduled and

conducted the hearing.

At the hearing , the Petitioner presented the testimony of

two witnesses and had Exhibits 1 through 3 admitted into

evidence. The Respondent presented the testimony of two

witnesses and testified on his own behalf.

The one - volume Transcript of the hearing was filed on

July 6, 2004. Both parties filed proposed recommended orders

that were considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. The Respondent is a massage therapist holding State of

Florida license number MA25243. The Respondent , a male, has

been a licensed massage therapist since September 22, 1997.

2. At all times material to this case, the Respondent has

worked as a massage therapist at Bayshore Rehabilitation,

6088 14th Street West in Bradenton, Florida.

3. K.S. is a 29 - ye ar - old female, living in Myakka City,

Florida.

4. As a birthday gift, relatives gave K.S. a gift

certificate for a massage at Bayshore Rehabilitation.

5. On March 11, 2003, K.S. called Bayshore Rehabilitation

and made an appointment to receive a 55 - m inute massage beginning

at 5:00 p.m. on that day.

6. Prior to March 11, 2003, K.S. had never been to

Bradenton Rehabilitation, and had not previously received a

massage from a licensed massage therapist.

7. Upon arriving at Bayshore Rehabilitation, K.S . gave the

gift certificate to a blonde woman, who greeted K.S. when she

entered the facility. The blonde woman did not identify herself

to K.S.

8. The blonde woman was Svetlana Ladyzhensky.

Ms. Ladyzhensky and her husband Lenny Ladyzhensky are the owne rs

of Bradenton Rehabilitation.

9. Ms. Ladyzhensky led K.S. to Treatment Room No. 3.

Ms. Ladyzhensky did not ask K.S. to provide any health - related

information.

10. Ms. Ladyzhensky informed K.S. that the massage

therapist was blind and asked if that p resented any problem.

K.S. was not concerned by the information.

11. After telling K.S. how to prepare for the massage,

Ms. Ladyzhensky left the room. Based on directions from

Ms. Ladyzhensky, K.S. undressed but for her underwear, got onto

the massage table on her stomach, and covered herself with a

sheet.

12. Shortly thereafter, the Respondent entered the room,

greeted K.S., and conversed briefly with her. She told him she

had not had a massage before.

13. The Respondent turned on a music player and began to

massage K.S.'s shoulders and back, using some type of massage

oil.

14. After moving the sheet, the Respondent began to

massage K.S.'s lower back. K.S. testified that the Respondent

told her she could take down her underwear, that she pulle d them

partway down her buttocks, and that he continued the massage.

15. K.S. testified that after the Respondent massaged her

lower back, he then "grabbed" her underwear and pulled them down

to her knees. K.S. testified that the Respondent massaged her

buttocks, moved his hands towards her genitals, and brushed his

fingers against her vaginal lips for five to ten seconds. K.S.

testified that due to the Respondent's blindness, she assumed

the touching of her vaginal lips was an error. She testified

tha t the contact made her uncomfortable, that she "asked him if

he massaged feet or hands or anything else," and that the

Respondent replied, "Oh yes, just trying to give you what you

want."

16. The Respondent testified at the hearing and denied

that he gr abbed and pulled down the underwear, or that any

inappropriate contact occurred during the massage.

17. After massaging K.S.'s lower back, the Respondent

massaged her legs and feet, and then directed her to turn over

onto her back.

18. K.S. testified that at the time she turned over onto

her back, she saw that a clock in the room read 5:40 p.m.

19. After turning over, K.S. covered herself from neck to

ankle with the sheet. The Respondent lowered the sheet and

massaged her neck and shoulders.

20. K.S. testified that the Respondent then lowered the

sheet to expose her breasts, and that within 30 to 45 seconds he

grabbed her breasts, one in each hand, and began to squeeze

them. K.S. testified that she grabbed his hands and pushed him

away, firmly sa ying, "No." K.S. testified that the Respondent

"immediately came back and grabbed my nipples and twisted them

extremely hard" and that she responded by again pushing his

hands away and saying, "No."

21. K.S. testified that the Respondent grabbed the sh eet

and said, "What, you no like?" and that she replied, "No." K.S.

testified that the Respondent then pulled the sheet off her and

said, "Yes, you like, you want more?" and that she replied, "No,

I don't."

22. K.S. testified that the Respondent then b riefly

massaged her lower right calf "extremely hard" and quickly left

the treatment room, ending the massage.

23. The Respondent testified that he performed a standard

massage with K.S., and left the room after it was completed.

The Respondent denied th at any contact with K.S.'s breasts or

nipples occurred during the massage, and denied that the

conversation reported by K.S. took place.

24. After the Respondent left the room, K.S. dressed and

exited the treatment room. Ms. Ladyzhensky was waiting by the

treatment room door to escort K.S. from the facility. K.S. was

not crying or in distress when she came out of the treatment

room.

25. Ms. Ladyzhensky asked K.S. about the massage. K.S.

remarked that it was "OK" and asked if she could get a drink

f rom a nearby water fountain. Ms. Ladyzhensky said, "Of

course." K.S. drank some water and left the building.

26. K.S. went from Bayshore Rehabilitation to the home of

the relatives who had given her the gift certificate.

27. Within a few minutes, the relatives arrived at

Bayshore Rehabilitation to report the allegations, and to seek a

refund of the cost of the gift certificate. The cost was

refunded.

28. Shortly thereafter, K.S. also returned to discuss the

allegations with Lenny Ladyzhensky. Dur ing the conversation

with Mr. Ladyzhensky, K.S. saw a law enforcement vehicle pass by

the building, and she went outside, flagged the officer down,

and reported the allegations.

29. Both Lenny and Svetlana Ladyzhensky testified during

the hearing. Both t estified that the walls in the facility are

thin and un - insulated, that the doors are hollow, and that it is

possible to hear noise between and outside the treatment rooms.

30. During part of the time that K.S. and the Respondent

were in Treatment Room No. 3, Mr. Ladyzhensky was in an

adjoining treatment room, and heard conversation and some

laughter from the room. He heard nothing that caused any

concern on his part.

31. During the time that K.S. and the Respondent were in

the treatment room, Ms. La dyzhensky was moving around the

facility and heard muffled conversation and laughter coming from

Treatment Room No. 3. She heard nothing that caused her any

alarm.

32. K.S. did not scream or call for help during the

alleged assault. She made no attemp t to leave the room while

the alleged events occurred, even though the door was unlocked

and accessible. K.S. testified that she was afraid of being

physically harmed by the Respondent so she did not scream or

attempt to leave the room. K.S.'s testimony regarding the

alleged assault lacks credibility.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57, Fla. Stat. (2003).

34. The Petitioner is the sta te agency charged with the

regulation of licensed massage therapists in the State of

Florida. See Chapters 456 and 480, Fla. Stat. (2003), and Fla.

Admin. Code R. 64B7 - 24 through 64B7 - 33.

35. Section 480.0485, Florida Statutes (2003), provides as

follows :

Sexual misconduct in the practice of massage

therapy. -- The massage therapist - patient

relationship is founded on mutual trust.

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 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. Sexual misconduct in the practice

of massage therapy is prohibited.

36. Subsection 480.046(1)(o), Florida Statutes (2003),

provides that disciplinary action may be imposed against a

licensee for violation of Chapter 456, Florida Statutes , or any

rules adopted pursuant thereto.

37. Florida Administrative Code Rule 64B7 - 26.010 provides

as follows:

64B7 - 26.010 Sexual Activity Prohibited.

(1) Sexual activity by any person or

persons in any massage establishment is

absolutely prohibited.

( 2) No massage establishment owner shall

engage in or permit any person or persons to

engage in sexual activity in such owner's

massage establishment or use such

establishment to make arrangements to engage

in sexual activity in any other place.

(3) No li censed 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.

(4) As used in this rule, "sexual activity"

means any direct or indirec t 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 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. Nothing herein

shall be interpreted to prohibit a licensed

massage therapist, duly qualified under Rule

64B7 - 31.001, F.A.C, from practicing colonic

irrigation.

38. The Petitioner has the burden of proving by clear and

convin cing evidence the allegations set forth in the

Administrative Complaint against the Respondent. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). Clear and convincing

evidence is that which is credible, precise, explicit, and

lacking confusion as to the facts in issue. The evidence must

be of such weight that it produces in the mind of the trier of

fact the firm belief of conviction, without hesitancy, as to the

truth of the allegations. Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983).

39 . K.S. testified that while she was lying on her

stomach, the Respondent "grabbed" her underwear, pulled them

down to her knees, and brushed his fingers against her genitals

for five to ten seconds. She testified that later in the

massage, the Respondent violently assaulted her breasts.

40. It strains credulity to believe that, given the

serious nature of the alleged assault, a person would have

responded to the attack in the same way as did K.S.

41. Escape would have been relatively easy. The door was

accessible and unlocked, and the Respondent is blind, yet K.S.

made no attempt to leave the room at any time prior to

conclusion of the massage.

42. Possible assistance was nearby, as other people were

present in the facility during the time of the massage, yet K.S.

made no effort to scream or call for help during the alleged

assault. No one heard anything unusual during the time that the

Respondent and K.S. were in the treatment room. When K.S.

exited the treatment room and spoke to one of the fa cility's

owners, K.S. did not appear to be upset or unhappy with the

massage.

43. While K.S. appeared to testify sincerely at the

hearing as to the allegations, the testimony lacks sufficient

credibility to support a firm belief of conviction, without

h esitancy, as to the truth of the allegations, and therefore the

burden of proof has not been met.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health, Board of Massage

Therapy, enter a final order dismissing the Administrative

Complaint filed against the Respondent.

DONE AND ENTERED this 28th day of July, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Ju dge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hear ings

this 28th day of July, 2004.

COPIES FURNISHED :

Brian J. Stabley, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

J. Brent Jones, Esquire

Grossman, Roth and Partridge

1800 Second Street, Suite 777

Sa rasota, Florida 34236

Renee Alsobrook, Acting General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

William H. Buckhalt, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions wit hin

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.