12-003666PL Department Of Health, Board Of Massage Therapy vs. Shiying Peng, L.M.T. Status: Closed Recommended Order on Thursday, June 6, 2013.

Summary: Petitioner failed to prove that Respondent, using fraudulent misrepresentations, obtained a message therapy license due to an agency error, without having completed a course of study at an approved school.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 12 - 3666PL

SHIYING PENG, L.M.T.,

Respondent.

/

RECOMMENDED ORDER

This ca se came before Administrative Law Judge John G. Van

Laningham for final hearing by video teleconference on March 19

and 22 , 2013 , at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: Jennifer L. Friedberg , Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: George F. Indest III, Esquire

Lance O. Leider, Esquir e

The Health Law Firm

1101 Douglas Avenue

Alt a monte Springs, Florida 32714

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, a massage

therapist, obtained a license: (a) by mea ns of fraudulent

misrepresentations; (b) which she knew had been issued in error;

and/or (c) without having completed a course of study at an

approved school, as Petitioner alleges. If so, it will be

necessary to determine an appropriate penalty.

PRELIMIN ARY STATEMENT

On October 8, 2012, Petitioner Department of Health

("Department") issued an Administrative Complaint ("Complaint")

against Respondent Shiying Peng, L.M.T. ("Peng"). The

Department alleged, in three separate counts, that Peng had

obtained her license to practice massage therapy "through error

of the Department of Health"; "by submitting a fraudulent

transcript and fraudulent Certificates of Completion with her

Application"; and "without completing a course of study at a

Florida Board - appro ved massage school." Peng timely requested a

formal hearing, and on November 1 4 , 2012, the Department filed

the pleadings with the Division of Administrative Hearings,

where an Administrative Law Judge was assigned to preside in the

matter.

The final hea ring began on March 19 , 2013, as scheduled,

with both parties present . A recess was taken at the end of the

day . The proceeding reconvened on March 22, 2013, and concluded

on that date. The Department called three witness es: Melissa

Wade, a managerial employee of the company which owns and

operates the Florida College of Natural Health ("FCNH"); Paris

Zupancic, an administrator at FCNH; and Anthony R. Jusevitch,

the Executive Director of the Board of Massage Therapy.

P etitioner's Exhibit s 1 through 3 w ere received in evidence.

Peng testified on her own behalf and presented one

additional witness , her friend Saeid Amiri . Respondent's

Exhibits R - 1 - Sub through R - 25 were admitted. Respondent's

Exhibits R - 31 and R - 32 were proffered for the record after th e

Department's objections to them had been sustained.

The three - volume final hearing transcript was filed on

April 3 , 2013, and Proposed Recommended Orders were due on

May 3 , 2013. The parties' respective submissions have been

considered.

FINDING S OF FACT

1. On February 26, 2008, the Department issued Peng

license number MA 52684, which authorized her to practice

massage therapy in the state of Florida.

2. The Department and the Board of Massage Therapy

("Board") have regulatory jurisdiction over licensed massage

therapists such as Peng. The Department provides investigative

services to the Board and is authorized to file and prosecute an

administrative complaint, as it has done this instance, when

cause exists to suspect that a licensee has committed a

disciplinable offense.

3. The Florida College of Natural Health ("FCNH") is an

incorporated nonpublic postsecondary educational entity. FCNH

holds a license by means of accreditation that authorizes its

operation in Florida as an independ ent college. The Florida

Commission for Independent Education ("CIE"), which regulates

nonpublic postsecondary institutions, issued the necessary

license to FCNH pursuant to section 1005.32, Florida Statutes

(2012). In addition to being duly licensed by the state, FCNH

is accredited by the Accrediting Commission of Career Schools

and Colleges and by the Commission on Massage Therapy. Finally,

FCNH is a "Board - approved massage school" within the meaning of

that term as defined in section 480.033. 1 /

4. A t the times relevant to this proceeding, the minimum

requirements for becoming and remaining a Board - approved massage

school were set forth in Florida Administrative Code Rule 64B7 -

32.003 (Oct. 30, 2007), which provided in pertinent part as

follows:

(1) I n order to receive and maintain Board

of Massage Therapy approval, a massage

school, and any satellite location of a

previously approved school, must:

(a) Meet the requirements of and be

licensed by the Department of Education

pursuant to Chapter 1005, F. S., or the

equivalent licensing authority of another

state or county, or be within the public

school system of the State of Florida; and

(b) Offer a course of study that includes,

at a minimum, the 500 classroom hours listed

below . . . .

(c) Apply dire ctly to the Board of Massage

Therapy and provide the following

information:

1. Sample transcript and diploma;

2. Copy of curriculum, catalog or other

course descriptions;

3. Faculty credentials; and

4. Proof of licensure by the Department of

Education.

5. As an institution holding a license by means of

accreditation, FCNH must comply with the fair consumer practices

prescribed in section 1005.04 and in the rules of the CIE. 2 /

Regarding these required practices, section 1005.04, Florida

Statutes (200 7), provided during the relevant time frame as

follows:

(1) Every institution that is under the

jurisdiction of the commission or is exempt

from the jurisdiction or purview of the

commission pursuant to s. 1005.06(1)(c) or

(f) and that either directly or indirectly

solicits for enrollment any student shall :

(a) Disclose to each prospective student a

statement of the purpose of such institution,

its educational programs and curricula, a

description of its physical facilities, its

status regarding licensure , its fee schedule

and policies regarding retaining student fees

if a student withdraws, and a statement

regarding the transferability of credits to

and from other institutions . The institution

shall make the required disclosures in

writing at least 1 wee k prior to enrollment

or collection of any tuition from the

prospective student. The required

disclosures may be made in the institution's

current catalog;

(b) Use a reliable method to assess, before

accepting a student into a program, the

student's abil ity to complete successfully

the course of study for which he or she has

applied;

(c) Inform each student accurately about

financial assistance and obligations for

repayment of loans; describe any employment

placement services provided and the

limitations thereof; and refrain from

promising or implying guaranteed placement,

market availability, or salary amounts;

(d) Provide to prospective and enrolled

students accurate information regarding the

relationship of its programs to state

licensure requirements for practicing related

occupations and professions in Florida;

(e) Ensure that all advertisements are

accurate and not misleading;

(f) Publish and follow an equitable prorated

refund policy for all students, and follow

both the federal refund guidelines for

students receiving federal financial

assistance and the minimum refund guidelines

set by commission rule;

(g) Follow the requirements of state and

federal laws that require annual reporting

with respect to crime statistics and physical

plant safety a nd make those reports available

to the public; and

(h) Publish and follow procedures for

handling student complaints, disciplinary

actions, and appeals.

(2) In addition, institutions that are

required to be licensed by the commission

shall disclose to pr ospective students that

additional information regarding the

institution may be obtained by contacting the

Commission for Independent Education,

Department of Education, Tallahassee.

(emphasis added).

6. At the time of the events giving rise to this

pro ceeding, the CIE's rule relating to fair consumer practices

provided in relevant part as follows:

(1) This rule implements the provisions of

Sections 1005.04 and 1005.34, F.S., and

establishes the regulations and standards of

the Commission relative to fa ir consumer

practices and the operation of independent

postsecondary education institutions in

Florida.

(2) This rule applies to those institutions

as specified in Section 1005.04(1), F.S. All

such institutions and locations shall

demonstrate compliance w ith fair consumer

practices.

* * *

(6) Each prospective student shall be

provided a written copy, or shall have

access to an electronic copy, of the

institution's catalog prior to enrollment or

the collection of any tuition, fees or other

charges . The catalog shall contain the

following required disclosures, and catalogs

of licensed institutions must also contain

the information required in subsections 6E -

2.004(11) and (12), F.A.C.:

* * *

(f) Transferability of credits: The

institutio n shall disclose information to

the student regarding transferability of

credits to other institutions and from other

institutions. The institution shall

disclose that transferability of credit is

at the discretion of the accepting

institution , and that i t is the student's

responsibility to confirm whether or not

credits will be accepted by another

institution of the student's choice. If a

licensed institution has entered into

written articulation agreements with other

institutions, a list of those other

institutions may be provided to students,

along with any conditions or limitations on

the amount or kinds of credit that will be

accepted. Such written agreements with

other institutions must be valid and in

effect at the time the information is

disclosed to the student. The agreements

shall be kept on file at all times and

available for inspection by Commission

representatives or students. Any change or

termination of the agreements shall be

disclosed promptly to all affected students.

No representatio n shall be made by a

licensed institution that its credits can be

transferred to another specific institution,

unless the institution has a current, valid

articulation agreement on file. Units or

credits applied toward the award of a

credential may be der ived from a combination

of any or all of the following:

1. Units or credits earned at and

transferred from other postsecondary

institutions, when congruent and applicable

to the receiving institution's program and

when validated and confirmed by the

rece iving institution.

2. Successful completion of challenge

examinations or standardized tests

demonstrating learning at the credential

level in specific subject matter areas.

3. Prior learning, as validated, evaluated,

and confirmed by qualified instructor s at

the receiving institution.

* * *

(11) An institution is responsible for

ensuring compliance with this rule by any

person or company contracted with or

employed by the institution to act on its

behalf in matters of advertising,

recruiting, o r otherwise making

representations which may be accessed by

prospective students, whether verbally,

electronically, or by other means of

communication.

Fla. Admin. Code R. 6E - 1.0032 (July 23, 2007)(emphasis added).

7. As a duly licensed, accredited, B oard - approved massage

school, FCNH was, at all relevant times, authorized to evaluate

the transferability of credits to FCNH from other massage

schools, so that credits earned elsewhere ÏÏ including from

schools that were not Board - approved ÏÏ could be applied toward

the award of a diploma from FCNH. In making such an evaluation,

FCNH was obligated to follow the standards for transfer of

credit that the Board had established by rule. 3 / Further, when

exercising its discretion to accept transfer credits, FCNH w as

required to complete, sign, and attach to the student's

transcript the Board's Transfer of Credit Form, by which the

school's dean or registrar certified that the student's

previously earned credits, to the extent specified, were

acceptable in lieu of t he student's taking courses at FCNH.

8. At all relevant times, FCNH 's registrar was Glenda

Johnson . As registrar, Ms. Johnson had actual authority to

evaluate the transferability of credits and to execute the

Transfer of Credit Form certifying to the Board that an

applicant's previously earned credits were acceptable to FCNH.

9. In December 2011, an individual with the National

Certification Board for Therapeutic Massage and Bodywork ("NCB")

placed a telephone call to Melissa Wade, a managerial empl oyee

of FCNH, to report that the NCB had received a number of

applications to sit for the National Certification Examination

from FCNH graduates whose transcripts seemed irregular. (Peng's

application was not among these; she had taken, and passed, the

na tional examination in December 2007.) What these applicants

had in common was that they had earned their massage therapy

diplomas from Royal Irvin College in Monterey Park, California,

and they had fewer credit hours on their transcripts than FCNH's

typic al students. The NCB sent copies of the suspicious

credentials to FCNH.

1 0 . Ms. Wade reviewed the materials and detected purported

anomalies in them. She was unable to find records in the

school's files confirming that the putative graduates in

questio n had been enrolled as students. Ms. Wade confronted

Ms. Johnson with the problematic transcripts and certificates.

Ms. Johnson admitted that she had created and signed them.

Shortly thereafter, in December 2011, FCNH terminated

Ms. Johnson's employme nt.

1 1 . Ms. Wade later notified the Board that some of FCNH's

diplomates might not have fulfilled the requirements for

graduation. This caused the Department to launch an

investigation, with which FCNH fully cooperated. The

investigation uncovered some 200 graduates whose credentials

FCNH could not confirm. One of them was Peng.

1 2 . Peng was born in China, immigrated to the United

S tates, and became a citizen of this country. In 2005 and 2006

Peng studied massage therapy at BodyConcepts Wellness Ins titute

("BodyConcepts") in East Rutherford, New Jersey. At

BodyConcepts, Peng successfully completed a 610 - hour curriculum

in massage therapy. Her certificate was issued on February 10,

2006.

13 . In 2007, P eng moved to California. There, Peng

attende d Royal Irvin College in Monterey Park, where she

completed a 250 - hour course for which she was issued a Massage

Technician II certi fi cate on November 7, 2007. Soon after

graduating from Royal Irvin College, as mentioned above, Peng

took and passed the Na tional Certification Examination for

Therapeutic Massage and Bodywork.

14. Thereafter, Peng relocated to Florida intending to

work as a massage therapist. Before she could begin working,

however, Peng needed to obtain a Florida license. Because

neith er Royal Irvin College nor BodyConcepts was a Board -

approved massage school, Peng needed to complete either a course

of study at an approved school or, alternatively, an

apprenticeship program. Opting for the former, Peng researched

Board - approved schools on the Board's website and identified

FCNH as a potential school.

15. On or about January 22, 2008, Peng went to the Pompano

campus of FCNH. Upon her arrival at FCNH, Peng signed her name

at the reception desk and wait ed to be seen . After some time,

a n FCNH employee, identified by Peng as Glenda Johnson, emerged

from the offices behind the reception area. Ms. Johnson brought

Peng back to her office. Once inside the office, Peng inquired

as to whether she could transfer her out - of - state credits to

FCN H in order to obtain a Florida license. After reviewing

Peng's transcripts from Royal Irvin College and BodyConcepts,

Ms. Johnson advised Peng that her credits could be transferred

to FCNH. Ms. Johnson informed Peng that she would have to take

two Florid a - specific classes, namely Prevention of Medical

Errors and Florida Laws and Rules.

16 . Peng decided to enroll in FC N H , and Ms. Johnson

prepared the necessary documents. As part of the enrollment

process , Peng executed an Enrollment Agreement, a release, a

Drug Free School Statement, and a privacy rights disclosure

statement. Among other things, the Enrollment Agreement

provided that "[t]he school will evaluate collegiate and post

secondary training, military experience, or civilian

occupations, and stud ents will be given appropriate credit if

criteria to measure the value of such training and/or experience

are met, as determined by the school." For her part,

Ms. Johnson completed several forms in her capacity as

regist rar. These documents included por tions of the Enrollment

Agreement, the Transfer of Credit For m , and FCNH's internal

Calculation Form for a Graduate From Another Massage Therapy

School.

17 . Ms. Johnson produced a Department of Health

application for a massage therapy license. Peng f illed out the

parts of the application requesting personal information such as

name, Social Security number, date of birth, and phone number,

and Ms. Johnson completed the rest . Peng then signed the three -

page application, which is dated January 22, 2008.

1 8 . The application which Peng executed states,

truthfully, that she obtained a massage therapy certificate in

November of 2007 from Royal Irvin College , and that the school

is not Board approved . The application states, inaccurately,

that Peng complete d 610 hours of study at Royal Irvin College,

when in fact she earned only 250 hours of credit there. The

610 - hour massage therapy program which Peng completed was

offered n ot at Royal Irvin College, but at BodyConcepts, a fact

which for reasons unknown wa s omitted in response to the

pertinent question on the application. This was obviously a

mistake, however, and not ÏÏ as the Department now contends ÏÏ a

"false statement" intended to deceive, for Peng's application

package included the diplomas and transcrip ts from both Royal

Irvin College and BodyConcepts. These credentials clearly state

Peng's educational attainments and the number of hours completed

at each institution . The evidence does not establish that Peng

knowingly made a false statement of materia l fact in the

application or otherwise intended to perpetrate a fraud on the

Department .

19. Ms. Johnson took Peng's FCNH enrollment forms and

collected $520.00 in cash as the fee for handling the transfer

of Peng's credits and her enrollment in the requi red courses.

The total reflects a $250.00 fee for transferring credits to

FCNH and a $270.00 fee for tuition. Peng paid the fees to

Ms. Johnson in cash because she did not have a checking account

or credit card at that time. Ms. Johnson signed a receip t for

the $520.0 0 payment and handed it to Peng.

2 0 . After Peng had complet ed the paperwork in

Ms. Johnson's office, an unidentified female FCNH employee

escorted Pe ng to a classroom on the campus. This woman provided

Peng with materials for the Prevent ion of Medical Errors and

Florida Laws and Rules courses she was to take.

2 1 . While at FCNH, Peng apparently received some classroom

instruction . She remained in class at FCNH into the night of

January 22, 2008 , and departed campus after completion of an

exam. The next day, P eng returned to FCNH , where she spent all

day in a class room , depart ing the campus via taxi in the

evening. During these two days of study, Peng made handwritten

notes on nearly every page of the written materials she was

provided . She used a translating device to translate difficult

English words into her native Mandarin Chinese.

22. After completion of the courses at FCNH, Peng

submitted her application for licensure. By letter dated

February 4, 2008, the Department notified P eng that her

application was incomplete due to some missing documents.

Specifically, the letter requested additional information

re garding her legal name change as well as proof of attendance

at a Board - approved school. Peng sent the Department a copy of

her divorce decree , satisfying the first part of the request .

23. Because FCNH h ad not provided Peng any certificates of

completion, however, she returned to FCNH on February 22, 2008 ,

seeking proof of attendance . There , Peng again met with

Ms. John son. Ms. Johnson assured Peng that she had co mpleted

all of the requirements. Peng asked Ms. Johnson to send the

Department proof of such completion , as requested in the letter

dated February 4, 2008 . Ms. Johnson gave copies of two

C ertificates of C ompl etion to Peng and promised her that they

would be sent to the Department.

2 4 . Ms. Johnson forwarded the documents to the Department ,

and soon afterward Peng's application was deemed complete. The

Department notified Peng by letter dated February 26, 2008 , that

she had been issued a license to practice as a massage

therapist.

2 5 . At the time Peng obtained her license, Florida law

required as a condition of licensure that an applicant take a

three - hour course on HIV/AIDS. See § 456.034, Fla. Stat.

(2007) . 4 / Peng credibly testified that Ms. Johnson, when

evaluating her transcript, had asked whether Peng had taken an

HIV/AIDS course. Peng told Ms. Johnson that she had taken the

cour se at both Royal Irvin College and at Body Concepts.

Ms. Johnson informed Peng that so long as she had taken the

course within the past year, the credit s would transfer to FCNH

and she would not have to take the course again. 5 /

2 6 . Among the documents that were sent to the Department

in connection with Peng's application was the Transfer of Cr edit

Form. T his form states that FCNH has evaluated and agreed to

accept 485 hours of Peng's previously awarded credits. The form

is signed by Ms. Johnson, as evaluator and registrar, who

certified "that the transcript credit for the . . . courses

[applicant previously attended for credit] is acceptable credit

from . . . Royal Irvin College." Ms. Johnson prepared this

document on her own without input or review by Peng. The

evidence provides no explanation for wh y Ms. Johnson did not

i dentify Body Concepts on the credit - transfer form itself. S he

evidently include d the credits earned from that school in her

calculation , however, because the majority of Peng' s previously

earned credits were from BodyConcepts.

27. Ms. Johnson also signed and submitted to the

Department an FCNH transcript showing that Peng had completed a

500 - hour program titled "Therapeutic Massage Training P rogram

(Transfer of Licensure)." Ms. Johnson did not show this

document to Peng. Even if she had , however, the tr anscript

would not have seemed irregular to Peng because it appears on

its face to be an official FCN H credential, listing the courses

that FCNH had accepted for transfer credit as well as those that

Peng had completed at FCNH on January 22 and 23, 2008. Peng was

not shown to have had any prior familiarity with FCNH documents ;

she had no reason to believe that the FCNH transcript purported

to award her any credits other than those she rightfully earned

at FCNH or one of the other schools she had attended .

2 8 . Finally, as mentioned above, Ms. Johnson prepared,

signed, and submitted to the Department two Certificates of

Completion refle cting Peng's completion of: "15 Hours of

Therapeutic Massage Training Program (Transfer of Licensure) "

and "2 Hours Preven tion of Medical Errors." Because Peng had

taken courses at FCNH on January 22 and 23, 2008, her receipt of

these certificates did not signify anything unusual . As far as

Pend knew, s he had taken the courses Ms. Johnson informed her

she needed to take and , accordingly, had earned the certificates

presented to her.

2 9 . Collectively, the cre dit - transfer form, the

transcript, and the certificates "signify satisfactory

completion of the requirements of an educational or career

program of study or training or course of study" and constitute

a "diploma" within the meaning of that term as defined in

section 1005.02(8). The several documents comprising Peng's

FCNH diploma will be referred to hereafter, collectively, as the

"Diploma."

30 . The evidence does not s upport a finding that Peng

misrepresented her educational attainments when she met with

Ms. Johnson. The evidence does not support a finding that Peng

knew or should have known that Ms. Johnson's evaluation of her

credits was anything but routine and in accordance with FCNH's

academic policies. The evidence does not support a finding that

Peng knew or should have known that FCNH, as the transferee

school accepting her Royal Irvin College and BodyConcepts

courses, would award her academic credit or creden tials which

she had not legitimately earned. Peng had no reason to suspect

the FC NH E nrollment Agreement she signed would not be properly

entered into the school's records. Nor did Peng have any reason

to suspect that the courses she completed would not be properly

credited to her academic record.

31 . To sum up Peng's transaction with FCNH, she went to

the Board - approved, state - licensed massage school on January 22 ,

200 8 , where she met with the registrar, Ms. Johnson, a member of

the school's administrat ion who she had no reason to believe

would deceive her. It was reasonable under the circumstances

for Peng to rely upon Ms. Johnson, and she was entitled under

the law to receive accurate information from the registrar

regarding, among other things, the t ransferability of credits to

FCNH, and the relationship between FCNH's academic program and

the state's licensure requirements for massage therapists. It

was also reasonable for Peng to assume that the course materials

and courses she took were part of he r apparently legitimate

enrollment in FCNH.

3 2. Moreover, Ms. Johnson, who at all times was acting

within the course and scope of her employment as the school's

registrar, had actual authority to evaluate transfer credits on

behalf of FCNH. The evidence does not establish that Peng was

or should have been aware of any limitations on Ms. Johnson's

authority, nor does the evidence show that Peng gave Ms. Johnson

false information. From Peng's perspective, Ms. Johnson had

apparent authority, at least, to ac cept Peng's credits from

Royal Irvin College and BodyConcepts, and to prepare, execute,

and issue such transcripts and certificates as would be

appropriate to the situation.

33 . Peng has not surrendered her Diploma or otherwise

acceded to the allegation that the credentials FCNH conferred

upon her are invalid. Although Ms. Wade testified at hearing

that Ms. Johnson should not have awarded Peng an FCNH Diploma

based on Peng's Royal Irvin College and BodyConcepts credits,

FCNH has not initiated a legal pro ceeding to revoke or withdraw

Peng's Diploma. At present, therefore, there is no legally

binding or enforceable determination that the Diploma is void or

that Peng is without rights and privileges thereunder.

CONCLUSIONS OF LAW

34 . The Division of Admini strative Hearings has personal

and subject matter jurisdiction in this proceeding pursuan t to

sections 120.569, and 120.57(1), Florida Statutes.

3 5 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature.

State ex rel. Vining v. Fla . Real Estate Comm'n , 281 So. 2d 487,

491 (Fla. 1973). Accordingly, to impose discipline, the

Department must prove the charges against Peng by clear and

convincing evidence. Dep't of Banking & Fin., Div. of Sec. &

Inv estor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34

(Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95

(Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Regulation, Bd. of

Medicine , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

3 6 . Regarding the standard of proof, in Slomowitz v.

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

developed a "workable definition of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quan titative standards."

The court held that:

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 explicit and the

wit nesses must be lacking in 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 a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established .

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

inte rpretive comment that "[a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev . de nied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

3 7. Disciplinary statutes and rules "must be construed

strictly, in favor of the one against whom the penalty would be

imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate ,

592 So. 2d 1136, 114 3 (Fla. 1st DCA 1992); see Camejo v. Dep't

of Bus. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA

2002); McClung v. Crim. Just. Stds. & Training Comm'n , 458 So.

2d 887, 888 (Fla. 5th DCA 1984)("[W]here a statute provides for

revocation of a license the grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee.");

see also , e.g. , Griffis v. Fish & Wildlife Conserv. Comm'n , 57

So. 3d 929 (Fla. 1st DCA 2011)(statutes imposing a penalty must

never be extended by construction).

3 8 . Due process prohibits an agency from taking

disciplinary action against a licensee based on matters not

specifically alleged in the charging instrument. See §

120.60(5), Fla. Stat. (" No revocation, suspension, annulment, or

withdrawal of any license is lawful unless, prior to the entry

of a final order, the agency has served , by personal service or

certified mail, an administrative complaint which affords

reasonable notice to the licensee of facts or conduct which

warrant the intended action . . . ."); see also Trevisani v.

Dep't of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A

physician may not be disciplined for an offense not charged in

the complaint."); Marcelin v. Dep't of Bus. & Prof'l Reg. , 753

So. 2d 745, 746 - 747 (Fla. 3d DCA 2000); Delk v. Dep't of Prof'l

Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992)("[T]he con duct

proved must legally fall within the statute or rule claimed [in

the administrative complaint] to have been violated.").

3 9 . In Count I of the Complaint, the Department charged

Peng under section 456.072(1)(h), Florida Statutes (200 7 ), which

states th at the act of "obtaining . . . a license . . . by

bribery, by fraudulent misrepresentation, or through an error of

the department" constitutes grounds for discipline. The

Department alleged that Peng committed a disciplinable offense

"by obtaining her lic ense to practice massage therapy

. . . through error of the Department of Health or by fraudulent

misrepresentation by submitting a fraudulent transcript and

fraudulent Certificates of Completion with her Application."

40 . The Department takes the positi on that Peng's license

can be revoked based on the Department's unilateral mistake ,

even if Peng did not personally commit a culpable act . Thus,

the Department contends that because its staff missed several

so - called "red flags" that "should have caused t hem to ask

additional questions regarding [ Peng's ] application ," Peng

herself committed a disciplinable offense. This argument is

rejected.

41 . To begin, the Department's "unilateral error" theory

is inconsistent with the general procedure for licensing as set

forth in section 120.60, which provides in pertinent part as

follows:

(1) Upon receipt of an application for a

license, an agency shall examine the

application and, within 30 days after such

receipt, notify the applicant of any

apparent errors or o missions and request any

additional information the agency is

permitted by law to require. An agency

shall not deny a license for failure to

correct an error or omission or to supply

additional information unless the agency

timely notified the applicant w ithin this

30 - day period.

Given that the law unambiguously prohibits an agency from

"deny[ing] a license for failure to correct an error or omission

or to supply additional information unless the agency timely

notified the applicant" of the particular d eficiency within 30

days after receiving the application, to allow the agency later

to revoke a license pursuant to section 456.072(1)(h) based

solely on a purported deficiency or "red flag" in the licensee's

application of which the agency failed to give timely notice

under section 120.60 not only would erode the protection that

the latter statute affords specific licensees, but also would

undermine the integrity of licenses in general.

42 . Further, section 456.072(1) clearly does require a

culpable " act" on the part of the licensee as a condition for

imposing discipline . Id. ("The following acts shall cons titute

grounds for" discipline) (emphasis added). The disciplinable

acts specified in section 456.072(1)(h) are the use of a bribe,

fraudulent mis representation, or "error of the department" to

obtain a license. Because a unilateral agency error does not

involve any wrongful act on the licensee's part, such an event

cannot constitute a basis for discipline. For a disciplinable

act to occur, the ap plicant must somehow use or take advantage

of an agency error to obtain her license.

4 3. To take advantage of an agency error, the applicant

must know about it. Thus, to commit the disciplinable act of

obtaining a license through an error of the agency, the

applicant must knowingly use the agency's error to her

advantage. Properly understood, then, section 456.072(1)(h)

imposes a n affirmative duty on an applicant to inform the

licensing agency if she learns that the agency is about to

issue, or has issu ed, her a license in error.

44 . Finally, Peng's application was supported by proof of

graduation from a Board - approved massage school in the form of

an official transcript signed by FCNH's registrar and two

C ertificates of C ompletion also bearing the o fficial signature

of the school's registrar. These documents constituted evidence

of Peng's successful completion of an approved course of study.

See Fla. Admin. Code R. 64B7 - 32.002 (Feb. 21, 1996). The

Department's recognition of Peng as a graduate of a Board -

approved massage school would have been a mistake only if Peng

did not possess the legally cognizable rights and privileges

appertaining to her FCNH Diploma, but she did ÏÏ and does.

4 5 . The Department failed to prove that Peng knowingly

took advan tage of an agency error in obtaining her license, or

even that the Department made a mistake. Therefore, Peng is not

subject to discipline on the basis of agency error.

4 6 . Regarding the allegation that Peng obtained her

license by submitting fraudulent credentials, it is useful to

recall that, i n the context of a civil suit, the essential

elements of a fraud claim are: (1) a false statement concerning

a material fact, including a nondisclosure when under a duty to

disclose; (2) made with knowledge that the representation (or

omission) is false and with the intention of inducing another's

reliance thereon; and (3) consequent injury to the other party

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). In an administrative proceeding such as this,

where an applicant is alleged to have used fraudulent means in

an attempt to obtain a license, it is not necessary for the

agency to prove actual injury, but the rest of the co mmon law

definition of fraudulent conduct is relevant and applicable in

evaluating the charge.

4 7 . "[F]raudulent intent usually must be proved by

circumstantial evidence and such circumstances may, by their

number and joint consideration, be sufficient t o constitute

proof." Nally v. Olsson , 134 So. 2d 265, 267 (Fla. 2d DCA

1961). Therefore, as proof of fraud, "one may show 'a series of

distinct acts, each of which may be a badge of fraud and when

taken together as a whole, constitute fraud.'" Dep't of Rev. v.

Rudd , 545 So. 2d 369, 372 (Fla. 1st DCA 1989)(quoting Allen v.

Tatham , 56 So. 2d 337, 339 (Fla. 1952)). Further, "[s]cienter,

or guilty knowledge, [which] is an element of intentional

misconduct [such as fraud], . . . can be established by showing

actual knowledge, or that the defendant was reckless or careless

as to the truth of the matter asserted." Ocean Bank of Miami v.

INV - UNI Inv. Corp. , 599 So. 2d 694, 697 (Fla. 3d DCA 1992).

4 8 . In this case, the Department failed to prove that Peng

knowi ngly, and with the intent to deceive the Department, made

any false statement of material fact in, or in connection with,

her application. Therefore, Peng is not guilty of obtaining a

license by fraudulent misrepresentation.

4 9 . I n Count II of the Compl aint, the Department charged

Peng under section 456.0 72(1)(w), Florida Statutes (2007 ), which

states that the act of "making misleading, untrue, deceptive, or

fraudulent representations on a[n] . . . initial

. . . licensure application" constitutes ground s for discipline.

The Department alleged that Peng committed a disciplinable

offense "by submitting a fraudulent transcript and fraudulent

Certificates of Completion with her Application."

50 . The Department asserts that the credentials which FCNH

issued to Peng are "inauthentic, illegitimate, and, therefore,

fraudulent," despite the fact that the school's own registrar

issued the documents in her official capacity, and despite the

fact that, to anyone unfamiliar with FCNH's internal policies

and practice s, such as Peng, the credentials are facially

regular in appearance. The Department's position assumes that

fraudulence is some sort of intrinsic quality of the documents

for which Peng is culpable, regardless of whether she personally

engaged in fraudule nt conduct. The undersigned rejects the idea

that a licensee can be disciplined merely for having reasonably

relied upon an allegedly "fraudulent" document obtained in good

faith by the licensee under circumstances demonstrating that the

licensee consider ed the document to be what it purports to be.

The Department failed to prove that Peng knowingly, and with the

intent to deceive the Department, made any false statement of

material fact in, or in connection with, her application.

Therefore, Peng is not guilty of making fraudulent

representations in her application.

51 . I n Count III of the Complaint, the Department charged

Peng under section 480.046(1)(o), Florida Statutes (200 7 ), which

subjects a licensee to discipline for the act of violating any

pro vision of chapter 480 or chapter 456. The Department alleged

that because Peng has not "completed a course of study at a

board - approved massage school," she has "violated" a provision

of chapter 480, namely section 480.041(1)(b), which makes

completion of such a course of study (or, alternatively, an

apprenticeship program) a qualification for licensure as a

massage therapist.

52 . As a preliminary matter, the undersigned notes that

section 480.041(1) does not by its terms require compliant

behavior, eithe r by prescribing minimum standards of conduct or

forbidding conduct deemed wrongful. Rather, this statute merely

describes the qualifications that a person must possess to be

licensed as a massage therapist. A person who lacks one or more

of the statutor y requirements is unqualified, but being

unqualified is not the same as being a lawbreaker. Because

section 480.041(1) is not violable as that term is ordinarily

understood, it is questionable whether any person can be

punished for "violating" section 480 .041(1).

53 . Assuming for argument's sake, however, that a licensee

can be disciplined for having "violated" section 480.041(1)(b),

the Department failed to prove that Peng did not complete a

course of study at a Board - approved massage school, for the

rea sons set forth below.

54 . At the time Peng submitted her initial application,

Florida Administrative Code Rule 64B7 - 32.002 (Feb. 21, 1996)

provided as follows:

In order to be acknowledged as a graduate of

a Board approved massage school as referred

to in subsection 480.033(9), F.S., the

Board's administrative office must receive

an official transcript documenting the

applicant's training. Such transcript must

document to the satisfaction of the Board

that the applicant has successfully

completed a course of study in massage which

met the minimum standards for training and

curriculum as delineated in this rule

chapter. A transcript indicating passing

grades in all courses, and including dates

of attendance, and stating the date of

successful completion of the entire course

of study, is evidence of successful

completion. If the transcript does not

specifically state that the student

successfully completed the entire course of

study, the transcript must be accompanied by

a diploma or certificate of completio n

indicating the dates of attendance and

completion.

5 5 . Peng's application included a Diploma issued by FCNH,

a Board - approved massage school. After reviewing Peng's

application, the Department determined that the Diploma sufficed

to prove Peng's succe ssful completion of a course of study in

massage meeting the minimum standards. The Diploma never

changed; it continues to be exactly what it was in February of

200 8 : evidence of successful completion of a course of study at

a Board - approved massage scho ol. 6 / To get around this reality,

the Department argues that the Diploma is "fraudulent" and that

Peng did not take the courses required for completion of an

approved course of study in massage therapy. Although the

Depar tment argues that it is "not aski ng for the recission of

[Peng's] credentials," in effect it is seeking such relief. To

deem Peng unqualified for having failed to complete an approved

course of study, the Department urges that Peng's rights under

the FCNH Diploma be ignored, if not extin guished , and it

believes such rights s hould be disregarded owing to Peng's

alleged deceitfulness.

5 6 . If Peng had knowingly deceived the Department, e.g.,

by making a fraudulent misrepresentation in her application,

then Peng would be subject to disciplin e for such misconduct,

which of itself is a sufficient basis ÏÏ independent of any

educational credential ÏÏ for taking punitive measures. As

discussed above, however, the Department failed to prove that

Peng made fraudulent misrepresentations to the Departme nt.

Consequently, there was no fraud in the transaction between Peng

and the Department.

5 7 . Asserting that Peng did not take courses at FCNH,

which she should have known were required for licensure, the

Department tacitly contends that Peng fraudulently obtained her

FCNH Diploma. In this regard, the Department accepts as

credible Ms. Wade's ex post facto testimony that FCNH should not

have accepted Peng's credits from Royal Irvin College and

BodyConcepts and, based on such transfer credits, awarded Peng a

Diploma.

5 8 . There are multiple problems with the Department's

theory. First, Peng has shown that she received some

instruction at FCNH. Second, as a duly licensed postsecondary

institution, FCNH (a) had the discretion to accept or decline to

accept Peng's Royal Irvin College and BodyConcepts credits and

(b) had the duty to disclose to Peng all relevant information

regarding transferability of credits. See § 1005.04, Fla. Stat.

(200 7 ); Fla. Admin. Code R. 6E - 1.0032(6)(f). As FCNH's

registrar, Ms. Jo hnson had actual (and certainly apparent)

authority to evaluate and accept Peng's Royal Irvin College and

BodyConcepts credits and apply them toward the award of an FCNH

credential. Ms. Johnson performed a seemingly legitimate

evaluation of Peng's credent ials and informed her that she

needed additional Florida - specific courses. Peng paid the

tuition for those courses and was told she was enrolled in them.

She then received the materials for and studied those subjects

at FCNH.

59. Peng's reliance on Ms . Johnson's decision regarding

the transferability of credits was reasonable under the

circumstances; believing, as she was told, that her out - of - state

credits were acceptable to FCNH in lieu of taking additional

courses (with the exception of the two she did take) , Peng had

no reason to be concerned about not attending additional classes

at FCNH. 7 /

60 . Third , regardless of whether Peng knew or should have

known which courses were required for licensure, she was

entitled to receive accurate information fro m FCNH regarding the

relationship of the school's massage therapy program to state

licensure requirements. See § 1005.04(1)(d), Fla. Stat. Peng's

reliance on Ms. Johnson's advice that no additional coursework

at FCNH (besides the instruction she received ) would be

necessary to qualify for a Florida massage therapy license was

therefore reasonable under the circumstances. That is, Peng

reasonably believed that the courses she had completed at Royal

Irvin College and BodyConcepts, which FCNH accepted towar d the

award of its credentials, and the study of Florida - specific

topics at FCNH, were all that she needed in order to complete

the program at FCNH .

61 . Finally, the questions which the Department has raised

implicating the Diploma's validity, namely whet her FCNH should

have issued Peng a Diploma and whether the Diploma is operative

as a legal instrument under which Peng has certain rights and

privileges, are not amenable to adjudication in this

administrative proceeding. Neither the Department nor the Bo ard

has the authority to revoke or rescind the Diploma, rendering it

a nullity, any more than either agency could revoke a degree

from, say, Harvard University or Tallahassee Community College.

Diplomas, degrees, and other educational credentials confer

r ights and privileges in which their holders have a property

interest. The power to revoke or withdraw such a valuable

credential, once conferred, belongs to the issuing institution,

not a third - party state agency, and such action, to be

enforceable, must be undertaken in accordance with a legal

process ensuring that the rights and interests of the degree

holder are protected.

62 . As the Supreme Court of Ohio explained:

We consider it self - evident that a college

or university acting through its board of

tr ustees does have the inherent authority to

revoke an improperly awarded degree where

(1) good cause such as fraud, deceit, or

error is shown, and (2) the degree - holder is

afforded a fair hearing at which he can

present evidence and protect his interest.

A cademic degrees are a university's

certification to the world at large of the

recipient's educational achievement and

fulfillment of the institution's standards.

To hold that a university may never withdraw

a degree, effectively requires the

university to continue making a false

certification to the public at large of the

accomplishment of persons who in fact lack

the very qualifications that are certified.

Such a holding would undermine public

confidence in the integrity of degrees, call

academic standar ds into question, and harm

those who rely on the certification which

the degree represents.

Waliga v. Board of Trustees , 488 N.E.2d 850 , 852 (Ohio 1986).

The authority to revoke degrees for cause, in short, is a

"necessary corollary" to the power to con fer degrees, Hand v.

Matchett , 957 F.2d 791, 794 - 95 (10th Cir. 1992) ÏÏ necessary

because "upon the grant of a degree, the university certifies to

the world that the recipient has fulfilled the university's

requirements, and this certification continues unti l the degree

is revoked." Crook v. Baker , 813 F.2d 88, 93 (6th Cir. 1987).

63 . As the court made clear in Waliga , however, the

issuing institution cannot revoke a degree ÏÏ in which the holder

possesses a property right ÏÏ except according to constitut ionally

adequate procedures providing due process. 488 N.E.2d at 853.

This does not mean that the school necessarily must go to court

to revoke a degree previously conferred. See Crook , 813 F.2d at

94. An administrative proceeding ÏÏ to which the issuing

institution and the degree holder are parties ÏÏ may suffice. See

Faulkner v. Univ. of Tenn. , 1994 Tenn. App. LEXIS 651 (Tenn. Ct.

App. Nov. 16, 1994). But it does mean that the former student

must be afforded adequate notice, a fair opportunity to be

hea rd, and an impartial forum. As one judge observed:

Educational institutions are uniquely

situated to make determinations regarding

academic qualifications or the lack thereof.

Establishing degree requirements and

granting degrees are within the province of

universities, not courts; so the rescission

of degrees of former students is within the

province of universities, not courts.

Courts, when their jurisdiction is

quickened, must assure that degrees are not

rescinded by universities until the former

stude nt has had all of the process due him ÏÏ

adequate notice, a fair opportunity to

defend, and an impartial forum.

Faulkner v. The Univ. of Tenn. , 627 So. 2d 362, 367 (Ala.

1992)(Houston, J., dissenting). 8 /

64 . Peng's FCNH Diploma certifies to the world that she has

completed a course of study at a Board - approved massage school.

Because of this certification, which the Diploma represents, the

Department's allegation that Peng has not completed such a course

of study is true only if the Diploma is a nullity, a worthless

piece of paper signifying nothing. The Diploma is not a nullity,

however, unless and until it is revoked.

65 . FCNH has persuaded the Department that the Diploma is

invalid. But the Department, which did not confer the Diploma,

is powerless to revoke this academic credential. Only FCNH has

the authority to revoke the Diploma, provided it does so in

accordance with due process of law, and it has not yet taken such

action, as far as the evidence in this case shows. I n arguing

that Peng is aca demically unqualified for licensure as a massage

therapist, the Department is attempting to steal a base, taking

for granted that the Diploma is void or, alternatively, voidable

in this proceeding. Because the Diploma is neither void nor

voidable in this forum, the Department's argument is rejected.

6 6 . This case points up the impropriety of using an

administrative disciplinary proceeding in place of the fair

hearing to which a degree holder is entitled when the issuing

institution seeks to revoke his or her degree. The evidence

presented at the final hearing suggests that, in the transaction

between FCNH and Peng, FCNH might have gotten its hands dirty.

Its registrar, Ms. Johnson, who was acting in the course and

scope of her employment when she met wi th Peng, seems to have

misled the former student ÏÏ assuming, as FCNH now maintains, that

Peng's Royal Irvin College and BodyConcepts credits were not, in

fact, a sufficient basis upon which to confer credentials

representing the completion of a course of st udy conforming to

state licensure requirements. Assuming further that, like the

Department, FCNH were unable to prove that Peng acted in concert

with Ms. Johnson, FCNH could conceivably be found liable to Peng

for the wrongful acts of its agent. E.g. , Ph illips Petroleum Co.

v. Royster , 256 So. 2d 559, 560 - 61 (Fla. 1st DCA 1972). In a

judicial proceeding by FCNH to rescind the Diploma, Peng could

assert such claims. In this administrative case, however, Peng

was precluded by jurisdictional limitations fr om making claims

against nonparty FCNH, even as FCNH's Ms. Wade testified on the

Department's behalf, advancing FCNH's position that the Diploma

should be given no force and effect. 9 /

6 7 . Indeed, whether the Diploma should be revoked ÏÏ a

question which, as explained, cannot be decided here ÏÏ is perhaps

less clear than the Department and FCNH would have it. This is

because Peng might have equitable defenses to rescission, such as

waiver and estoppel, which could preclude FCNH from relying on

so - called irre gularities to deny the validity of the credentials

that Ms. Johnson issued Peng in her capacity as FCNH's registrar

and agent. See, e.g. , Russell v. Eckert , 195 So. 2d 617, 622

(Fla. 2d DCA 1967). Obviously such equitable defenses were

useless to Peng he re, which is why this proceeding is no

substitute for the fair hearing to which she is entitled in the

event FCNH seeks to revoke her Diploma.

6 8 . Because FCNH has not revoked the Diploma, the Diploma

continues to certify that Peng completed a course of study in

massage therapy at a Board - approved school.

69. The Department has raised two additional issues that

require a brief mention. One concerns instructional methodology.

The Department argues that for a "course of study" to meet with

the Board's a pproval, it must be delivered in a lecture format.

Because Peng's instruction in the Florida - specific courses at

FCNH was apparently in a self - study format, the Department

contends that Peng did not complete an "approved" course of

study. This contention is rejected for two reasons. First, Peng

was not specifically charged in the Complaint with a violation

stemming from an alleged deficiency in instructional methodology.

Second, the Department did not reference a statute or rule

mandating that, to be ap proved, massage therapy courses must be

given in a lecture format.

70. The other iss ue concerns the mistake in Peng's

application, pursuant to which the 610 hours of credit she

received at BodyConcepts were erroneously attributed to Royal

Irvin College, while the 2 5 0 - hour course of study Peng completed

at Royal Irvin College went unmentioned , as did the school,

BodyConcepts . As found above, and for the reasons stated, this

was clearly a mistake and not a material misrepresentation.

Further, Peng was not specifically charged in the Co mplaint with

a violation relating to this mistake. Therefore, no disciplinary

action is warranted as a result of th e minor irregularity in

Peng's application.

RECOMMENDATION

Based on the foregoing Findings of Fact and Concl usions of

Law, it is RECOMMENDED that the Board enter a final order

finding Peng not guilty of the offenses charged in the

Complaint.

DONE AND ENTERED this 6th day of June , 2013, in

Tallahassee, Leon County, Florida.

S

___________________________________

J OHN G. VAN LANINGHAM

Administrative Law Judge

Division 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

Divisio n of Administrative Hearings

this 6th day of June , 2013.

ENDNOTES

1 / Section 480.033(9) provides:

"Board - approved massage school" means a

facility which meets minimum standards for

training and curriculum as determined by

rule of the board and which is licensed by

the Department of Educat ion pursuant to

chapter 1005 or the equivalent licensing

authority of another state or is within the

public school system of this state.

2 / See § 1005.32(5), Fla. Stat.

3 / See Fla. Admin. Code R. 64B7 - 32.004 (Feb. 27, 2006).

4 / This statute was rep ealed effective July 1, 2012. Fla. Laws

ch. 2012 - 115.

5 / The Board rule in effect at that time, which has since been

repealed, did not require that the HIV/AIDS course be taken in

Florida or be offered by a Board - approved school. See Fla.

Admin. Code R . 64B7 - 25.0012 (Jan. 26, 2000).

6 / If the Department believed that Peng's official transcript

from FCNH and the other certificates comprising her Diploma

failed to conform to the requirements of rule 64B7 - 32.002, then

it should have denied her applicatio n on that basis, which would

have given Peng the right, in 2008, to request a hearing to

determine the sufficiency of the Diploma. In any event, it

should be noted that the Department is not asserting in this

case that Peng's FCNH Diploma is insufficient evidence of

successful completion of an approved course of study pursuant to

rule 64B7 - 32.002; the Department argues instead that the Diploma

was fraudulently obtained and thus is a nullity, which is a

different theory.

7 / If the Board determines that FC NH failed to comply with the

standards for transfer of credit set forth in rule 64B7 - 32.004,

then the Board can withdraw its approval of FCNH pursuant to

rule 64B7 - 32.003(3). In addition, or alternatively, if so

inclined, the Department or the Board may m ake a complaint about

FCNH to the CIE, which is authorized to investigate suspected

misconduct on the part of licensed nonpublic postsecondary

schools, and to impose discipline on violators. See § 1005.38,

Fla. Stat. The Department has not alleged, in an y event, that

Peng should be disciplined because the transfer standards were

not met.

8 / The dissenting justice concluded, contrary to the court's

majority, that the plaintiff had failed to exhaust his

administrative remedies. The entire court agreed, h owever, that

the plaintiff's degree could not be revoked except through a

proceeding affording him due process of law.

9 / Peng was similarly precluded from asserting in this

administrative proceeding other legal claims she might have

against FCNH, such a s breach of contract. See, e.g. , Sharik v.

Southeastern Univ. of the Health Sciences, Inc. , 780 So. 2d 136

(Fla. 3d DCA 2000), reh'g en banc denied , 780 So. 2d 142 (Fla. 3d

DCA 2001).

COPIES FURNISHED :

Jennifer L. Friedberg , Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

George F. Indest III, Esquire

Lance O. Leider, Es quire

The Health Law Firm

1101 Douglas Avenue

Alt a monte Springs, Florida 32714

Douglas Elias Ede, Esquire

Hamilton, Miller and Birthisel

150 Southeast 2nd Avenue

Miami, Florida 33157

Anthony R. Jusevitch, Executive Director

Board of Massage Therapy

Dep artment of Health

4052 Bald Cypress Way, Bin C - 06

Tallahassee, Florida 32399 - 3256

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All par ties 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.