12-003611PL Department Of Health, Board Of Massage Therapy vs. Jun Ping Hao, L.M.T. Status: Closed Recommended Order on Tuesday, June 11, 2013.

Summary: DOH did not prove that licensee obtained massage therapy license by disciplinable means.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF MASSAGE THERAPY ,

Petitioner ,

vs. Case No. 12 - 3611PL

JUN PING HAO, L.M.T. ,

Respondent .

/

RECOMMENDED ORDER

On Marc h 27, 2013, a final administrative hearing was held

in this case in Naples, Florida, before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Candace Rochester, Esquire

Department of Hea lth

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

For Respondent: Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahas see, Florida 32302 - 0551

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of Health,

Board of Massage Therapy, should discipline the Respondent, Jun

Ping Hao, based on the manner in which she applied for and

obtained her license.

PR ELIMINARY STATEMENT

The Department of Health (Department) filed an

Administrative Complaint against the Respondent alleging: in

Count I, that she obtained her license through the Department ' s

error or through fraudulent misrepresentation; in Count II, tha t

she failed to provide information or timely updated information,

or made misleading, untrue, deceptive, or fraudulent

representations on her license application; and, in Count III,

that she failed to complete the course of study required for

licensure. The Respondent disputed the charges and requested an

administrative hearing.

At the hearing, the Department had Petitioner ' s Exhibits 1

through 3 admitted in evidence. The Respondent testified and had

one exhibit admitted in evidence. The Transcript of the final

hearing was filed, and the parties filed proposed recommended

orders that have been considered.

FINDING S OF FACT

1. The Respondent, who was born in China, came to the

United States in 2009 and enrolled in the Healing Hands Institute

for Massage Therapy (Healing Hands) in New Jersey. She completed

a 600 - hour course of study and graduated in March 31, 2010. In

December 2010, she sat for and passed the examination

administered by the National Certification Board for Therapeutic

Massage and Bodywo rk (NCBTMB).

2. The Respondent wanted to move to Florida and work as a

licensed massage therapist. She was referred to the Florida

College of Natural Health (FCNH) by a friend, who had a friend

who had graduated from FCNH ' s Board - approved course of stu dy and

was licensed in Florida. The friend made an appointment for the

Respondent, who traveled to FCNH ' s Pompano campus in late

December 2010 or early January 2011. On arrival, the Respondent

was escorted by someone who worked there to the office of the

registrar, Glenda Johnson.

3. The Respondent showed Johnson her Healing Hands

transcript and her NCBTMB certificate, which Johnson reviewed.

4. It is not FCNH ' s normal practice for the registrar to

review transcripts to determine how much credit to accept from

another school. This is normally done by the school ' s education

department. However, Johnson appeared to have the authority to

make the determination, and it was reasonable for the Respondent

to believe that Johnson was authorized to do so.

5. Johnson then had the Respondent fill out and sign an

application for licensure in Florida by examination based on her

600 - hour course of study at Healing Hands and her NCBTMB

certificate. Johnson helped the Respondent answer questions she

could not u nderstand. Everything in the application filled out

and signed by the Respondent was true and correct at that time.

6. Johnson then gave the Respondent a copy of the statutes

and rules governing the practice of massage therapy in Florida.

The Responde nt spent about two hours in the registrar ' s office

studying the statutes and rules. There was no instructor

present. The Respondent did not ask anyone any questions about

the statutes and rules, and she was not tested or graded on what

she studied.

7. When the Respondent finished studying the statutes and

rules, she paid Johnson $830 in cash and left the application

with her. The Respondent asked if she had to take any more

classes, Johnson said she would let her know. She trusted

Johnson, as the sch ool ' s registrar. Cf. § 1005.04(1)(a) & (d),

Fla. Stat. (2012)(a nonpublic secondary institution accredited by

the Commission for Independent Education must disclose to

prospective students the transferability of credit to and from

other institutions and accurate information regarding the

relationship of its programs to state licensure requirements).

8. Actually, even if credit for all other educational

requirements for Florida licensure by examination were

transferred from Healing Hands, the Respondent was required to

complete a ten - hour class in Florida statutes and rules. Fla.

Admin. Code R. 64B7 - 32.003 (Apr. 25, 2007). (Notwithstanding

some testimony to the contrary, other mandatory courses of study

are not required by rule to be Florida - specific.) Id. Like all

other educational requirements for licensure by examination, this

class had to be taken in - person, with a faculty member present.

Fla. Admin. Code R. 64B7 - 32.001 (Mar. 25, 1986).

9. The Respondent did not recall Johnson saying she would

submit the Respondent ' s application to the Board. The Respondent

left the application she had filled out and signed on Johnson ' s

desk when she left. She never spoke to Johnson or returned to

FCNH again.

10. At some point after the Respondent left the Pompano

campus, Johnson completed a transfer of credit form and the

Respondent ' s FCNH transcript. The transfer of credit form

indicated that FCNH was accepting the following hours from

Healing Hands: 150 credit hours in the category Anatomy and

Physiolog y; 100 credit hours in the category Basic Massage

Therapy; 125 credit hours in the category Clinical Practicum;

76 credit hours in the category Allied Modalities; 15 credit

hours in the category Business; 15 credit hours in the category

Theory and Practice of Hydrotherapy; 4 credit hours in the

category Professional Ethics; and 3 credit hours in the category

HIV/AIDS Education. The form did not specify the course taken at

Healing Hands. The form indicated that to qualify for licensure,

the Respondent need ed ten hours in the category Florida Laws and

Rules and two hours in Medical Errors. Finally, the form showed

the total credit hours for all schools, which indicated that the

additional hours needed for licensure had been taken.

11. At some point after the Respondent left the Pompano

campus, Johnson also completed a FCNH transcript for the

Respondent indicating that the Respondent completed all the

credit hours on the credit transfer form (a total of 500 credit

hours, including 12 hours having been taken at FCNH, namely ten

in Florida Statutes and Rules and two in Introduction to Allied

Modalities), and assigning credits for those credit hours (a

total of 25.84 credits, including 0.8 earned at FCNH). In fact,

the Respondent did not take any classes at FC NH.

12. At some point after the Respondent left the Pompano

campus, Johnson also completed FCNH certificates of completion

for the Respondent indicating that the Respondent took and

successfully completed FCNH ' s two - hour class in Prevention of

Medical Er rors and 20 hours of FCNH ' s Therapeutic Massage

Training Program (Transfer of License) between January 6 and 7,

2011. In fact, the Respondent did not take FCNH ' s class in

Prevention of Medical Errors or any other classes at FCNH.

13. Johnson sent the Re spondent ' s license application (with

$155 fee), Healing Hands transcript, and NCBTMB certificate,

together with the documents Johnson completed after the

Respondent left the Pompano campus, to the Board. She did not

provide copies to the Respondent. Base d on those submissions,

the Board issued the Respondent massage therapy license MA 61844.

14. There was no evidence as to what happened to the

balance of the cash paid to Johnson, but subsequent events

suggest that Johnson probably pocketed it.

15. The Respondent ' s license application included both the

representation that the answers and statements in or in support

of her application were true and correct and the acknowledgement

that any false information on or in support of the application

was cause fo r denial, suspension, or revocation of her license.

Although true and correct when the Respondent filled it out and

signed it, the Respondent ' s application was not true and correct

as submitted to the Board on her behalf, with the false

supporting documen tation prepared by Johnson.

16. In December 2011, it came to the attention of Melissa

Wade, FCNH ' s vice - president for Compliance and Institutional

Effectiveness, that a number of people were claiming to have

graduated from FCNH ' s Pompano campus based on documentation

indicating that they did not complete FCNH ' s 768 - hour course of

study that was approved by the Board. Wade investigated and was

unable to find any record of the individuals having been students

at FCNH. Wade investigated further and discove red discrepancies

in the documentation being submitted by those individuals. Wade

investigated further and discovered that Johnson never actually

registered these individuals as students. Johnson was terminated

from her employment as registrar for the sc hool.

17. Beginning in January or February 2012, Wade began

notifying the Board about the individuals purporting to be FCNH

graduates, but who never actually were registered as students and

did not complete the school ' s Board - approved course of study. A s

more such individuals were identified, the Board was notified.

The Respondent was one of the individuals reported to the Board.

18. In September 2012, it came to the Respondent ' s

attention that the Department had concerns regarding the veracity

of the Respondent ' s application for licensure. In October 2012,

in an attempt to resolve the Department ' s concerns, the

Respondent took and successfully completed Board - approved

continuing education (CE) classes titled Living with HIV/AIDS

(three CE hours), Mas sage Therapy Laws and Rules -- Legal Update

2011 (ten CE hours), and Preventing Medical Errors (two CE

hours).

19. Later in October 2012, the Department filed emergency

suspension orders and administrative complaints against a number

of licensees who submitt ed suspect FCNH documentation with their

applications, including the Respondent.

20. During the time the Respondent practiced as a licensed

massage therapist in Florida, there have been no complaints of

any kind against her either by the Department or an y consumer.

During that time, the Respondent also became licensed as a

massage therapist in Connecticut and Virginia.

21 . It was not proven by clear and convincing evidence that

the Respondent had any intent to defraud the Department or the

Board. Howe ver, even assuming that Johnson had at least apparent

authority to transfer credit hours from Healing Hands and assign

FCNH credit, it is clear that the application submitted on the

Respondent ' s behalf by Johnson was supported by documentation

that falsely represented that the Respondent took a ten - hour

class on Florida statutes and rules and a two - hour class in

Prevention of Medical Errors at FCNH. At the same time, those

false misrepresentations were made by FCNH, through its

registrar, not by the Respon dent.

CONCLUSIONS OF LAW

22. Since this is a license discipline case, the Department

must prove its allegations by clear and convincing evidence.

Dep ' t of Banking and Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

The Supreme Court has stated:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking i n confusion as to the

facts in issue. The evidence must be of such

a 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.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

23. In Count I, the Department charged the Respondent with

" [a]ttempting to obtain, obtaining, or renewing a license to

practice a profession . . . by fra udulent misrepresentation,

or through an error of the department or the board. "

§ 456.072(1)(h), Fla. Stat. (2009). In Count II, the Department

charged the Respondent with " [f]ailing to comply with the

requirements for profiling and credentialing, includ ing, but not

limited to, failing to provide initial information, failing to

timely provide updated information, or making misleading, untrue,

deceptive, or fraudulent representations on a profile,

credentialing, or initial or renewal licensure application. "

§ 456.072(1)(w), Fla. Stat. (2009).

24. Fraud requires a false statement concerning a material

fact (which could include nondisclosure when under a duty to

disclose), made with knowledge of its falsity and with the intent

to induce another ' s reliance, and consequent injury to the person

acting in reliance on the false representation. See , e.g. , Cohen

v. Kravit Estate Buyers, Inc. , 843 So. 2d 989, 991 (Fla. 4th DCA

2003). The evidence was not clear and convincing that the

Respondent had the knowledge or intent necessary to be guilty of

having made fraudulent misrepresentations in her license

application.

25. Similarly, the evidence was not clear and convincing

that the Respondent herself made misleading, untrue, or deceptive

representations on her li cense application, notwithstanding

Johnson ' s representations and statements in the application

signed by the Respondent that the answers and statements in or in

support of her application were true and correct and that any

false information on or in suppor t of the application was cause

for denial, suspension, or revocation of the license.

26. The evidence also was not clear and convincing that the

Respondent ' s license was issued through an error of the

Department or the Board. The Board was presented wit h an

application supported by what appeared to be a transcript and

certificates of completion issued by FCNH, which indicated that

the Respondent had completed a Board - approved course of study and

was entitled to licensure by examination. See Fla. Admin. Code

R. 64B7 - 32.002 (Feb. 21, 1996).

27. Even if the Respondent ' s license were issued through an

error of the Department or Board, there would have to be some

culpable conduct on the part of the Respondent for her to be

disciplined for such an error. In this case, the evidence was

not clear and convincing that the Respondent engaged in any

conduct that would warrant discipline due to an error of the

Department or Board. That evidence indicates that it was just as

reasonable for the Respondent to rely on NCNH to determine

whether she was entitled to a transcript and certificates of

completion of NCNH ' s Board - approved course of study as it was for

the Department and Board to do so.

28. In Count III, the Department alleges that the

Respondent violated sec tion 480.046(1)(o), Florida Statutes

(2009), which subjects a licensee to discipline for violating any

provision of chapter 480 or 456, by violating section

480.041(1)(b), which sets out the qualifications for licensure,

including the qualification of havi ng completed a course of study

at a Board - approved massage school. First, section 480.046(1)(o)

sets out qualifications for an applicant for licensure; it does

not, strictly speaking, make it a violation to obtain a license

without being qualified. Secon d, if it did, it adds nothing to

the violations alleged in Counts I and II, and Count III would be

resolved as they were.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Massage Therapy e nter a

final order dismissing the Administrative Complaint against the

Respondent.

DONE AND ENTERED this 11th day of June , 2013 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Divis ion of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of June , 2013 .

COPIES FURNISHED:

Anthony Jusevitch, Executive Director

Board of Massage Therapy

Department of Health

Bin C06

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3256

Jennifer A. Tschetter, General Counsel

Department of Health

Bin A02

4052 Bald Cy press Way

Tallahassee, Florida 32399 - 1701

Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 3230 2 - 0551

Candace Rochester, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

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.