STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4055

)

ROBERT WILLIAM IVANY, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 20, 1996, a formal administrative hearing was held in this case in St. Petersburg, Florida, before Richard Hixson, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miriam S. Wilkinson, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 For Respondent: No appearance

STATEMENT OF THE ISSUES

The issues for determination in this case are whether Respondent committed the acts alleged in the Administrative Complaint, and if so, whether Respondent's license to practice massage therapy in Florida should be revoked or otherwise disciplined.

PRELIMINARY STATEMENT

On August 15, 1995, Petitioner, the FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, filed an Administrative Complaint charging Respondent, ROBERT WILLIAM IVANY, a licensed massage therapist, with two counts of violating the provisions of Chapter 480, Florida Statutes, and Rule Chapter 61G11, Florida Administrative Code, to wit: engaging or offering to engage in sexual activity with a client in specific violation of Rule 61G11-26.010(3), Florida Administrative Code. Respondent denied the allegations of the Administrative Complaint and requested a formal hearing which was scheduled for February 1, 1996. On January 17, 1996, Petitioner filed a Notice of Substitution of Counsel and requested a continuance of the formal hearing. The hearing was rescheduled for May 29, 1996. Respondent subsequently discharged his counsel, and on March 13, 1996, pursuant to Rule 60Q-2.007(3), Florida Administrative Code, counsel for Respondent was granted leave to withdraw. Respondent thereafter proceeded pro se in this matter.

On April 29, 1996, Petitioner filed a Motion to Relinquish Jurisdiction alleging that there existed no disputed issues of material fact based, in part, on Respondent's failure to respond to Requests for Admission. On May 10, 1996, Petitioner's Motion to Relinquish Jurisdiction was denied in light of Respondent's filing on April 25, 1996, of Answers to Interrogatories, which indicated a denial of the material allegations of the Administrative Complaint. On May 17, 1996, Petitioner filed a Motion for Continuance which was granted without objection. The case was thereafter rescheduled for hearing on August 20, 1996. On May 20, 1996, the Notice of Hearing was sent to Respondent at 762 15th Avenue South, St. Petersburg, Florida 33701. This is the same address listed for Respondent in all pleadings filed by Respondent, or filed in his behalf. This is the same address from which Respondent has appeared in all matters in this case. Respondent has not filed any pleading indicating a change of address, nor otherwise notified Petitioner, or the Division of Administrative Hearings of a change in address.

Respondent failed to appear at hearing on August 20, 1996. Prior to commencing the hearing, efforts were made to contact Respondent, including placing a telephone call to the telephone number listed in Respondent's pleadings. A telephone answering machine stated Respondent was not at home. Subsequent to the hearing, Respondent did not contact the Administrative Law Judge, Petitioner's counsel, nor the Division of Administrative Hearings to explain his failure to appear, or to otherwise request a continuance of the proceedings. The hearing was transcribed, and the efforts to contact Respondent were placed on the record.

At the commencement of the hearing, Petitioner's motion to allow the testimony by telephone of witness Linda Schaufele was granted. In addition to Ms. Schaufele, Petitioner presented the testimony of Linda Mantovani, Nancy Scotti, Sylvia Franklin, Deputy Craig Bornstein, Deputy Kenneth Kanoski, Rita Hall, Professor Paul Doering (expert in pharmacology), Audra Radvil, Peggy Etchison, Bernadette Robinson, Frederick W. Whitehurst (by deposition) and William L. Smith, (expert in massage therapy). Petitioner also presented three exhibits which were received in evidence. The transcript of the hearing was filed on September 19, 1996, and on October 3, 1996, Petitioner filed a Proposed Recommended Order. As indicated above, Respondent did not file any response or otherwise appear subsequent to hearing.

FINDINGS OF FACT

1. Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION (DBPR), is the agency of the State of Florida vested with the statutory duty and authority to administer the provisions of Chapter 480, Florida Statutes, governing massage practice.

   
   

2. Respondent, ROBERT WILLIAM IVANY, was initially licensed as a massage therapist in the State of Florida on July 8, 1986, and presently holds license number MA 0006899 (Massage). Respondent's license is currently in "delinquent/renewal notice prepared" status. Respondent's current license biennium expires on January 31, 1997.

   
   

3. At all material times hereto, Respondent was employed as a licensed massage therapist at the Pasadena Wellness Center in St. Petersburg, Florida.

   
   

4. On or about January 28, 1994, complainant, Linda Schaufele, arrived at the Pasadena Wellness Center to receive a massage. Ms. Schaufele had been

   experiencing soreness in her shoulder and neck and wanted a massage to alleviate this condition. Ms. Schaufele had previously received massages many times; however, this was her first visit to the Pasadena Wellness Center.

   
   

5. Ms. Schaufele was sent by the staff receptionist at the Pasadena Wellness Center to a massage room, where she removed her clothing except for her underwear.

   
   

6. Respondent subsequently entered the massage room. Prior to this time, Ms. Schaufele did not know Respondent, and had no previous contact with Respondent. Respondent entered into a therapist-client relationship with Ms. Schaufele.

   
   

7. Ms. Schaufele informed Respondent of the soreness in her shoulder and neck. Ms. Schaufele agreed to a full body massage, but requested Respondent concentrate on her shoulder and neck.

   
   

8. Respondent began the massage with Ms. Schaufele lying on her stomach. Respondent used oil or lotion during the massage. After massaging her shoulders, neck and working down her back, Respondent turned Ms. Schaufele over to lie on her back and began to massage her from the waist down. At this time Respondent distinctly placed his hand between Ms. Schaufele's legs into her pubic area. Ms. Schaufele immediately stiffened her legs to prevent Respondent from continuing to keep his hand between her legs. Respondent removed his hand from between Ms. Schaufele's legs, and finished the massage. Respondent used the therapist-client relationship to engage in sexual activity with Ms. Schaufele. Ms. Schaufele was very uncomfortable during the remainder of the massage, and was upset about the Respondent's actions.

   
   

9. Subsequent to this incident on January 28, 1994, Ms. Schaufele became acquainted with the owner of the Pasadena Wellness Center. Ms. Schaufele then informed the owner of the Respondent's actions which occurred during her massage on January 28, 1994. Ms. Schaufele was told by the owner that there had been other complaints regarding Respondent.

   
   

10. On or about May 12, 1993, complainant, Nancy Scotti, arrived at the Pasadena Wellness Center to receive a massage. Ms. Scotti had never received a massage before, and had no prior experience with a licensed massage therapist.

    
    

11. Ms. Scotti was instructed by the staff receptionist to fill out certain forms. Respondent then came to the reception area and led Ms. Scotti to a massage room. Ms. Scotti did not know Respondent, and had no previous contact with Respondent. Respondent entered into a therapist-client relationship with Ms. Scotti.

    
    

12. Respondent instructed Ms. Scotti to "get ready", which in response to, Ms. Scotti undressed, except for her underwear, and lay down on her stomach on the massage table. Ms. Scotti covered herself with a sheet that was provided in the massage room.

    
    

13. Ms. Scotti informed Respondent that she had experienced pain in her upper back, shoulders and neck. Ms. Scotti did not request any particular kind of massage.

    
    

14. Respondent began the massage with Ms. Scotti lying on her stomach. Respondent massaged her neck, shoulders, and worked down her back. Respondent used and applied a lotion to Ms. Scotti's body during the massage. Respondent

    then proceeded to massage Ms. Scotti's arms and legs, working his way back to her inner thighs and crotch area. While massaging her inner thighs Respondent asked Ms. Scotti why she was not indicating her enjoyment of the massage. At this point Ms. Scotti was becoming increasingly uncomfortable and concerned; however, due to her apprehension and her inexperience with a licensed massage therapist Ms. Scotti did not express her concern, or otherwise stop the massage.

    
    

15. Respondent then placed his hands inside Ms. Scotti's underwear and massaged her buttocks. Respondent turned respondent over on her back, and massaged her neck and shoulders. Respondent then uncovered and with one hand massaged Ms. Scotti's breasts, and with the other hand digitally penetrated Ms. Scotti's vagina repeatedly. Respondent used the therapist-client relationship to engage in sexual activity with Ms. Scotti.

    
    

16. Ms. Scotti was frightened and alarmed. Respondent attempted to remove her underwear, and she pushed him away. Respondent then inquired if Ms. Scotti had reached orgasm. She did not respond, and Respondent concluded the massage session and left the massage room.

    
    

17. Ms. Scotti remained frightened and alarmed. She dressed, left the Pasadena Wellness Center, and walked outside where her friends Audra Radvil, Bernadette Robinson, and Peg Etchison were waiting for her. At this time Ms. Scotti appeared distraught. She began crying and informed her friends what had occurred. Her friends observed a law enforcement officer in the parking lot, and approached the officer and related the incident.

    
    

18. A second officer, Deputy Sheriff Craig Bornstein, was summoned to the scene. Ms. Scotti related the incident to Deputy Bornstein. Ms. Scotti was then transported to the Pinellas County Sheriff's Office where her sworn statement was taken by Detective Kenneth Kanoski.

    
    

19. Ms. Scotti was then taken to the Pinellas County Health Unit where she underwent a sexual assault victim examination. The examination was conducted by Sylvia Franklin, an advanced registered nurse practitioner with extensive experience in conducting such examinations. The examination included drawing blood, taking vaginal and breast swabs, and obtaining saliva and urine samples.

    
    

20. The chain of custody of the samples obtained during the examination was preserved.

    
    

21. Detective Kanoski investigated this incident, and obtained a sample from Respondent of the lotion used by Respondent on Ms. Scotti. The lotion was Revlon Aquamarine Body Lotion.

    
    

22. The specimens obtained during the examination of Ms. Scotti and the sample lotion obtained during the investigation by Detective Kanoski were sent for analysis to the Federal Bureau of Investigation (FBI) laboratory. The results of the FBI analysis showed the presence of isopropyl palmitate in the lotion obtained from Respondent, as well as in the vaginal and breast swab specimens taken during the examination of Ms. Scotti.

    
    

23. Isopropyl palmitate is not a naturally occurring substance, and is not found in any product normally intended for use in the vaginal area. Isopropyl palmitate was contained in the lotion that was used by Respondent, and was introduced into Ms. Scotti's vagina as a result of Respondent's actions.

24. Following this incident, Ms. Scotti has missed work and become withdrawn, depressed, and apprehensive toward others.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction of the subject matter and parties to this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

26. Petitioner in a licensure disciplinary action is required to prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 570 So.2d 292 (Fla. 1987).

    
    

27. "Clear and convincing evidence" requires that evidence must be found to be credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and witnesses must be lacking in confusion as to facts in issue; evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983).

    
    

28. Section 480.046(1)(k), Florida Statutes provides:

    
    

    1. The following acts shall constitute grounds for which disciplinary actions specified in subsection (2) may be taken against a massage therapist or massage establishment licensed under this act:

       * * *

       (k) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department

       previously entered in a disciplinary hearing, or failing to comply with a lawfully issued subpoena of the department.

       
       

29. In this respect, Rule 61G11-26.010, Florida Administrative Code, provides:

    
    

    1. Sexual activity by any person or persons in any massage establishment is absolutely prohibited.

    2. No massage establishment owner shall 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 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.

    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 and includes sexual inter- course, 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 61G11-31.001, from practicing colonic irrigation.

       
       

30. The evidence is clear and convincing that Respondent committed the acts alleged in the Administrative Complaint by using the therapist-client relationship to engage in sexual activity in violation of Rule 61G11-26.010, Florida Administrative Code, and Section 480.046(1)(k), Florida Statutes.

    
    

31. Section 480.046(2), Florida Statutes, provides:

    
    

    1. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       1. Refusal to license an applicant.

       2. Revocation or suspension of a license.

       3. Issuance of a reprimand or censure.

       4. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

    
    

32. Respondent's actions constitute extremely serious violations of Chapter 480, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Massage, enter a final order revoking Respondent's license to practice massage therapy.

DONE and ORDERED this 15th day of October, 1996, in Tallahassee, Florida.

RICHARD HIXSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996.

COPIES FURNISHED:

Miriam S. Wilkinson, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Robert W. Ivany

762 15th Avenue South

St. Petersburg, Florida 33701

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Anna Polk, Executive Director Board of Massage

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within fifteen (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.

Docket for Case No: 95-004055

Orders for Case No: 95-004055