10-010374PL Department Of Health, Board Of Massage Therapy vs. Fabian Chanoz, Lmt Status: Closed Recommended Order on Tuesday, March 1, 2011.

Summary: Recommend suspension of massage therapy license, which was conditioned on ongoing compliance with PRN contract, until licensee back in compliance with PRN contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MASSAGE THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 10 - 10374PL

)

FABIAN CHANOZ, L.M.T., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida, on January 31, 2011.

Co - counsel for Petitioner, S. J. DiConcilio, and two of

Petitioner's witnesses, the Executive Director of the Board of

Massage Therapy, Anthony Jusevi tch, and Medical Director of

Professionals Resource Network (PRN) , Dr. Judy Rivenbark,

participated in Tallahassee. Co - counsel for Petitioner, Greg S.

Marr; Resp ondent; and the court reporter participated by

videoconference in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Greg S. Marr , Esquire

S. J. DiConcilio , Esquire

Assistant General Counsel

Department of Health, Prosecution

Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Fabian Chanoz, pro se

2342 Treasure Isle Drive

Palm Beach Gardens, Florida 33410

STATEMENT OF THE ISSUE S

The issue is whether Respondent is guilty of being unable

to practice massage with reasonable skill and safety due to

illness, in violation of section 48 0.046(1)(g), Florida

Statutes, or failing to comply with a monitoring or treatment

contract or being terminated from a treatment program for

impaired practitioners, in violation of section 456.072(1)(hh),

Florida Statutes, and, thus, section 480.046(1)(o), Florida

Statutes . If either charge is proved, an additional issue is

the penalty that should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 16, 2008,

Petitioner alleged that the Board of Massage Therapy referred

Respondent to the PRN when he applied for a license. The

referral was allegedly due to matters that he had identified in

his application. On March 13, 2004, Respondent allegedly signed

a "licensure - long" contract with PRN. On April 22, 2004, the

Board of Massage Ther apy issued Respondent a license, suspended

the license, and stayed the suspension as long as Respondent

remained compliant with his PRN contract.

The Administrative Complaint alleges that the PRN contract

requires periodic reports from Respondent's psychi atrist, but

the last such report received by the Board of Massage Therapy

was dated February 16, 2006. After PRN allegedly tried, without

success, to contact Respondent, it sent him a letter, dated

January 22, 2007, to his last known address. When Respon dent

allegedly failed to respond to the letter, PRN reported to the

Board of Massage Therapy that Respondent was noncompliant with

his contract and terminated the contract.

Count I of the Administrative Complaint alleges that

Respondent is thus unable to practice massage therapy with

reasonable skill and safety due to illness or the use of

alcohol, drugs, narcotics, chemicals, or any other type of

material as a result of any mental or physical condition, in

violation of section 480.046(1)(g), Florida Statu tes.

Count II of the Administrative Complaint alleges that the

termination the PRN contract violates section 456.072(1)(hh),

Florida Statutes, and, thus, section 480.046(1)(o), Florida

Statutes.

At the hearing, Petitioner called two witnesses and offered

into evidence six exhibits : Petitioner Exhibits 1 - 6 .

Respondent called one witness and offered into evidence no

exhibits. All ex hibits were admitted. Petitioner Exhibit 3 is

sealed because it contains confidential patient records.

The court reporter filed the transcript on February 17,

2011 . Petitioner filed a P roposed R ecommended O rder on

February 28, 2011 .

FINDINGS OF FACT

1. By application dated September 23, 2003, Respondent

applied for licensure as a massage therapist. The application

lists R espondent's address as easure Isle Drive, Palm

Beach Gardens. At all material times, this has been

Respondent's official address of record with the Board of

Massage Therapy, and Respondent's parents h ave resided at this

address. For much of the ti me since licensure, Respondent has

resided at his parents' home. For the time since licensure that

Respondent did not reside at this address, his parents timely

forwarded to Respondent all licensure - related mail when they

received such mail.

2. Resp ondent's application mention s a mental illness , so

the Board of Massage Therapy referred the file to its History

Committee. A fter consideration of the materials in the file,

the History Committee referred the file to PRN for an evaluation

of Respondent an d his fitness to practice.

3. Respondent's psychiatrist, Jorge H. Caycedo, who

practices in Miami, sent a letter, dated January 9, 2004, to the

Board of Massage Therapy. The letter states that Respondent has

been in out - patient therapy with Dr. Caycedo, "on and off,"

since O ctober 1997. Dr. Caycedo opined that Respondent suffers

from "a Bipolar Disorder." At the time of the letter,

Respondent was on a combination of medications that he had found

"most helpful." The letter concludes:

[Respondent] is we ll aware of the nature of

his mental problems and of the consequences

of not taking his medications regularly, as

prescribed.

In my opinion, he is in condition to

practice as a massage therapist provided

that he follows the treatment recommended to

him.

4. On February 17, 2004, Dr. Aldo Morales, a psychiatrist,

examined Respondent at the request of PRN. In his letter of the

same date, Dr. Morales detailed Respondent's psychiatric

history, which includes four hospitalizations for manic and

depressi ve ep isodes -- mostly the latter -- and command auditory

hallucinations. Dr. Morales noted that Respondent's family

history includes a sibling with bipolar disorder and that

Respondent's personal history included daily use of marijuana

for six year s , but his use o f marijuana, as well as alcohol, had

ended 11 years earlier. Dr. Morales' letter reports that a te n -

panel drug screen, which include d a test for marijuana, was

negative.

5. Dr. Morales found nothing adversely remarkable in the

mental status exam and ent ered, as Axis I diagnostic

impressions, "Bipolar Disorder, most recent episode depressed (3

1/2 years ago), with a prior history of psychosis" and "Cannabis

dependence, in full sustained remission . . .." Dr. Morales

assessed Respondent's global assessmen t of function as 70.

Based on his examination, Dr. Morales concluded:

It is my opinion that [Respondent] can

practice his profession with reasonable

skill and safety as long as he remains under

psychiatric supervision, adheres to his

medication regimen, a nd remains clean and

sober.

6 . On March 13, 2004, PRN entered into an Advocacy

Contract with Respondent. Immediately under "Advocacy

Contract," at the top of the first page of the contract, is the

following: "***Licensure - Long****." In the contract,

Respondent agrees to submit to random urine or blood screens;

abstain from all but prescribed medications, drugs, alcohol, and

other mood - altering substances; obtain quarterly updates for PRN

from Dr. Caycedo; attend a weekly PRN - monitored pro fessional

sup port group; and return messages from PRN within 24 hours.

Other requirements included notification of PRN anytime that

Respondent, a French citizen, left the United States and anytime

that he returned to the United States, as well as a visit to

Respondent 's treating psychiatrist within one week of returning

to the United States with a report from the psychiatrist to PRN.

At the bottom of the contract, immediately above Respondent's

signature, which is dated March 13, 2004, is the statement:

[PRN] agrees t o assume an advocacy role with

Professional Licensing Board . . . for

[Respondent] provided the following terms

are agreed to and met. The duration of this

contract will be licensure - long . . . .

7 . At the meeting of t he Board of Massage Therapy on

Apr il 22, 2004, pursuant to the contract between PRN and

Respondent, a PRN representative made a brief presentation

highlight ing the above - described facts. In this presentation,

the PRN representative assured the Board that the monitoring

would apply "licens e long." The Board agreed to issue a

suspended license to Respondent, but to stay the suspension as

long as Respondent remained compliant with the PRN contract.

Immediately after the vote, a Board member addressed Respondent:

You understand what we did ? You have your

license as long as you stay in compliance.

There's a suspension on your license but

that suspension is stayed[. A]s long as you

stay in compliance with that contract[,]

you['re] fine.

8 . The Board of Massage Therapy then issued an Ord er

Granting Conditional License dated May 20, 2004. The Order

states the application is:

CONDITIONALLY APPROVED with the following

conditions of licensure:

1. [Respondent] shall remain in compliance

with any recommended . . . PRN . . .

contract.

2. Th e license shall be issued suspended,

with suspension stayed for so long as

[Respondent] remains in compliance with the

PRN contract.

3. Should [Respondent] fail to maintain

compliance with the PRN contract, the stay

of suspension shall be lifted until

[R espondent] appears before the Board and

demonstrates renewed compliance.

4. The conditions are imposed on

[Respondent's] violation of section[s]

480.046(1)(g); 456 072(1)(y) Florida

Statutes by being unable to practice Massage

Therapy with reasonable ski ll and safety by

reason of illness or use of alcohol, drugs,

narcotics, chemicals, or any other type of

materials, or as a result of any mental or

physical condition.

9 . The Order concludes with a Notice of Right to Hearing

that clearly provides Respond ent with a chance to contest

disputed issues of fact before an Administrative Law Judge or

undisputed issues of fact by other means. Respondent did not

avail himself of either of these options.

10 . The Board of Massage Therapy issued Respondent license

number MA 41103. The licenses issued by the Board of Massage

Therapy expire on August 31 in odd - numbered years. Using the

address noted above, the Board contacted Respondent each time

that his license was approaching the end of its term, and

Respondent r enewed his l icense by August 31 in 2005, 2007 , and

2009 . At all times, Respondent's license number remained MA

41103.

11 . Following licensure, Dr. Caycedo provided PRN with

periodic updates of Respondent's status , although the frequency

of these updates was less than quarterly . These letters are

dated June 10, 2004; October 8, 2004; February 8, 2005;

February 21, 2005; June 1, 2005; December 1, 2005; and

February 16, 2006. The February 8 letter reports that

Respondent said on this visit that he had bee n hearing voices,

although they had been friendly and not issuing commands, and he

had been "more depressed." The other letters reported that

Respondent was in good mental condition and stable, although the

last letter reports that Respondent had complain ed of difficulty

concent rating and feeling "racy." This letter states that

Respondent's next office appointment would be in two months.

12 . Respondent testified that he visited Dr. Caycedo and

attended group meetings for the first two years after receiv ing

his license. Respondent's main defense is that the condition of

suspension attaching to his license expired when the first

license term expired because his renewed license was "new" and

not conditioned on his ongoing compliance with the PRN contract.

13 . However, Respondent did not take advantage of the

opportunity to clarify his claimed misunderstanding when he

could have done so easily. B y letter dated January 23, 2007,

Dr. Raymond M. Pomm, then Medical Director of PRN, warned

Respondent that PR N was preparing to refer Respondent's case to

Petitioner due to Respondent's failure to comply with his

contract and gave Respondent until February 1 to contact PRN

staff for "direction . " If Respondent had truly misunderstood

whether the condition had con tinued to attach to his license, he

would have taken this opportunity to resolve the issue.

14 . Respondent received the January 23 letter. It was

sent to the address listed above, and Respondent's father signed

for it on January 25, 2007 . Respondent' s admission at the

hearing that it was "possible" that he received this letter

acknowledges the obvious -- he received it, and he received it

when it was delivered at his parents' home. At the time,

Respondent was living at this address. Also, later in 200 7,

when Respondent's license came up for renewal, the notice went

to the same address, and Respondent did what was required to

renew his license.

15 . Respondent ignored the February 1 deadline. On

February 26, 2007, Dr. Pomm wrote Respondent to advise him that

PRN had referred his case to Petitioner for noncompliance with

his PRN contract. Again, Respondent received the letter, but

took no action. On the same date, Dr. Pomm wrote Petitioner and

stated that Respondent was not in compliance with his PR N

contract, and Dr. Pomm "cannot say that he is safe to practice

with reasonable skill and safety . . .."

16 . Respondent continued to practice massage therapy in

Florida until September 2008. At this time, Respondent returned

to Paris , France, where he lived and worked until about

December 1, 2010, when he returned to Florida. Respondent

testified that he filed the paperwork to renew his license by

August 31, 2009, while he was residing in Paris . Although the

record omits any copy of this renewal, unli ke the 2005 and 2007

renewals, Mr. Anthony Jusevitch testified that the Board renewed

Respondent's license on August 31, 2009.

17 . Respondent testified that he visited Dr. Caycedo upon

Respondent's return to Florida , but the record contains no

indicati on of when or the findings of Dr. Caycedo, except

Respondent's two - edged assurance that Dr. Caycedo thought that

it was a "miracle" that Respondent was well. At the hearing,

Dr. Rivenbark testified on cross that she has no reason today to

opine that Respo ndent could not practice massage therapy with

skill and safety, although, on redirect, she clarified her

testimony by adding that, based on Respondent's diagnosis, there

is "great potential" that he may be unsafe to practice.

18 . Dr. Rivenbark's opinio n is about the same as

Dr. Pomm's opinion -- each expert lacks a basis to say that

Respondent may practice with reasonable skill and safety. Of

course, such evidence is short of establishing that Respondent

is unable to practice with reasonable skill and sa fety. The

only evidence to support a present finding to this effect would

be an inference from Respondent's initial diagnoses, as well as

his auditory hallucinations and recurring depression, although

these occurred five years ago. The most current infor mation

appears to be Dr. Caycedo's findings upon Respondent's return to

Florida a couple of months ago, but , given its hearsay nature,

this testimony is not especially reliable, nor is it at all

descriptive of what, if anything, Dr. Caycedo meant. T he

evi dence in this record is therefore short of what is necessary

to establish that Respondent may not practice with reasonable

skill or safety, but this finding in no way implies that the

condition originally attached to his license -- ongoing compliance

with th e PRN contract -- is no longer necessary.

CONCLUSIONS OF LAW

19 . The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2010).

20 . Section 480.046(1)(g), Florida Statutes, provides:

The following acts constitute grounds for

denial of a license or disciplinary action,

as specified in s. 456.072 (2):

* * *

(g) Being unable to practice massage with

reasonable skill and safety by reason of

illness or use of alcoh ol, drugs, narcotics,

chemicals, or any other type of material or

as a result of any mental or physical

condition. In enforcing this paragraph, the

department shall have, upon probable cause,

authority to compel a massage therapist to

submit to a mental o r physical examination

by physicians designated by the department.

Failure of a massage therapist to submit to

such examination when so directed, unless

the failure was due to circumstances beyond

her or his control, shall constitute an

admission of the al legations against her or

him, consequent upon which a default and

final order may be entered without the

taking of testimony or presentation of

evidence. A massage therapist affected

under this paragraph shall at reasonable

intervals be afforded an opport unity to

demonstrate that she or he can resume the

competent practice of massage with

reasonable skill and safety to clients.

* * *

21 . Section 456.072(1)(hh), Florida Statutes, provides:

The following acts shall constitute grounds

for which the disciplinary actions specified

in subsection (2) may be taken:

* * *

(hh) Being terminated from a treatment

program for impaired practitioners, which is

overseen by an impaired practitioner

consultant as described in s. 456.076, for

failure to comply, without good cause, with

the terms of the monitoring or treatment

contract entered into by the licensee, or

for not successfully completing any drug

treatment or alcohol treatment program.

2 2 . Section 456 .072(2) provides:

When the board, or the department when there

is no board, finds any person guilty of the

grounds set forth in subsection (1) or of

any grounds set forth in the applicable

practice act, including conduct constituting

a substantial violatio n of subsection (1) or

a violation of the applicable practice act

which occurred prior to obtaining a license,

it may enter an order imposing one or more

of the following penalties:

(a) Refusal to certify, or to certify with

restrictions, an application for a license.

(b) Suspension or permanent revocation of

a license.

(c) Restriction of practice or license,

including, but not limited to, restricting

the licensee from practicing in certain

settings, restricting the licensee to work

only under desi gnated conditions or in

certain settings, restricting the licensee

from performing or providing designated

clinical and administrative services,

restricting the licensee from practicing

more than a designated number of hours, or

any other restriction found to be necessary

for the protection of the public health,

safety, and welfare.

(d) Imposition of an administrative fine

not to exceed $10,000 for each count or

separate offense. If the violation is for

fraud or making a false or fraudulent

representati on, the board, or the department

if there is no board, must impose a fine of

$10,000 per count or offense.

(e) Issuance of a reprimand or letter of

concern.

(f) Placement of the licensee on probation

for a period of time and subject to such

condition s as the board, or the department

when there is no board, may specify. Those

conditions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend continuing education

courses, submit to be reexamined, work under

the supervis ion of another licensee, or

satisfy any terms which are reasonably

tailored to the violations found.

(g) Corrective action.

(h) Imposition of an administrative fine

in accordance with s. 381.0261 for

violations regarding patient rights.

(i) Refund of fees billed and collected

from the patient or a third party on behalf

of the patient.

(j) Requirement that the practitioner

undergo remedial education.

In determining what action is appropriate,

the board, or department when there is no

board, must first consider what sanctions

are necessary to protect the public or to

compensate the patient. Only after those

sanctions have been imposed may the

disciplining authority consider and include

in the order requirements designed to

rehabilitate the practi tioner. All costs

associated with compliance with orders

issued under this subsection are the

obligation of the practitioner.

2 3 . Petitioner must prove the material allegations by

clear and convincing evidence. Dep' t of Banking &

Fin . v. Osborne Stern & Co . , Inc. , 670 So. 2d 932 (Fla. 1996)

and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

24 . Petitioner has proved that Respondent failed to comply

with his PRN contract and thus was terminated from the program,

which is a disciplinary offense und er section 456.072(1)(hh) .

Respondent's claim that the condition that attached to his

license disappeared, without further action, upon the first

renewal of his license is rejected as unsupported by the record.

The PRN contract clearly notifies Responden t that the condition

attaches as long as he holds a license. If Respondent genuinely

were confused, which is doubtful, he could have contacted PRN or

Petitioner early in the process and resolved the confusion.

25 . Respondent's claim that his mental co ndition never

justified attaching the condition to his license is barred by

the fact that Respondent waived his right to challenge this

condition when, in 2004, he failed to take advantage of a clear

point of entry to do so. Lamar Advertising Co. v. DOT , 523 So.

2d 712 (Fla. 1st DCA 1988).

2 6 . Additionally, Respondent reported auditory

hallucinations and greater depression to Dr. Caycedo nearly one

year after receiving his license, and he reported that, in

December 2010, Dr. Caycedo thought that it was m iraculous that

Respondent had returned from France in good shape. This

evidence would compel the rejection of Respondent's second

argument, even if Respondent had not waived his right to raise

it.

2 7 . Florida Administrative Code R ule 64B7 - 30.002 (1)(aa)

addresses a violation of section 456.072(1)(gg) . This is an

obsolete reference to current section 456.072(1)(hh), which was

renumbered in 2006. Ch. 06 - 207, § 2, at 5, Laws of Fla. This

rule provides :

First offense: Suspension until compliant

up to susp ension until compliant with

program followed by up to 5 years probation

with conditions.

Second or subsequent offense: Suspension

until compliant with program and up to five

years probation with conditions, or

revocation, and up to $2,000.00 fine.

2 8 . This is a first offense of noncompliance with the PRN

contract . The pena lty is suspension until Respondent achieves

compliance . In this case, probation does not add much of a

meaningful restriction because Respondent's license will always

be condition ed on his compliance with the PRN contract.

RECOMMENDATION

It is

RECOMMENDED that the Board of Massage Therapy enter a final

order suspending Respondent's license until he achieves

compliance with his PRN contract.

DONE AND ENTERED this 1st day of Mar ch , 2011, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9 675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of March , 2011.

COPIES FURNISHED:

Greg S. Marr, Esquire

Department of Health

4052 Bald Cypress Way, Bin C 65

Tallahassee, Florida 32399 - 3265

Fabian Chanoz

easure Isle Drive

Palm Beach Gardens, Florida 33410

E. Renee Alsobrook, A cting General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Anthony Jusevitch, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399 - 3256

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.