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


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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.

1STATE OF FLORIDA

4BOARD OF MASSAGE THERAPY

8DEPARTMENT OF HEALTH, ---- -

13Petitioner,

14vs. DOH CASE NO.: 2012-13362

19DOAH CASE NO.: 12-3666PL

23SHIYING PENG, LMT,

26.. ."

28Respondent. :c rn 2: _.

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;48.!J ::om

50FINAL ORDER f./') :I> -i :::3

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56THIS CAUSE came before the BOARD OF MASSAGE

64.....c

65pursuant to Sections 120.569 and 120.57 (1), Florida Statutes, oCf{ July

7626, 2013, in Orlando, Florida, for the purpose of considering the

87Administrative Law Judge's Recommended Order (a copy of which is

97attached hereto as Exhibit A) in the above-styled cause. Petitioner

107was represented by Candace Rochester, Assistant General Counsel.

115Respondent was present and was represented by George F. Indest III,

126Esquire.

127Upon review of the Recommended Order, the argument of the

137parties, and after a review of the complete record in this case, the

150Board makes the following findings and conclusions.

157RULINGS ON EXCEPTIONS

1601. Petitioner's first exception to the Findings of Fact

169addresses paragraph 8 in the Recommended Order (hereinafter "RO") .

180The facts in paragraph 8 are supported by competent substantial

190evidence. The exception is rejected.

1952. petitioner's second exception to the Findings of Fact

204addresses paragraph 16 in the RO. The findings in paragraph 16 are

216supported by competent substantial evidence. The exception is

224rejected.

2253. Petitioner's third exception to the Findings of Fact

234addresses paragraph 20 of the RO. The findings in paragraph 20 are

246supported by competent substantial evidence. The exception is

254rejected.

2554. Petitioner's fourth exception to the Findings of Fact

264addresses paragraph 21 of the RO. When there is conflicting evidence

275in the record, it is the responsibility of the Administrative Law

286Judge to resolve the conflict. The exception is rejected.

2955. Petitioner's fifth exception to the Findings of Fact

304addresses paragraph 25 of the RO. There is competent substantial

314evidence in the record to support the finding in paragraph 25. Rulings

326on evidence are not within the substantive jurisdiction of the Board.

337The exception is rejected.

3416. Petitioner's sixth exception to the Findings of Fact

350addresses paragraph 27 of the RO. The facts in paragraph 27 are a

363reasonable inference drawn from the evidence in the record. The

373exception is rejected.

3767. Petitioner's seventh exception to the Findings of Fact

385addresses paragraph 28 of the RO. The record contains conflicting

395evidence concerning the facts in paragraph 28, and there was no

406ci tation to any rule to support Peti tioner' s position. The exception

419is rejected.

4218. Petitioner's eighth exception to the Findings of Fact

430addresses paragraph 29 of the RO. The exception is not relevant to

442the basis for the Administrative Law Judge's conclusions. The

451exception is rejected.

4549. Petitioner's ninth exception to the Findings of Fact

463addresses paragraph 30 of the RO. The standard applied by the

474Administrative Law Judge was not or should have known." The

484standard for establishing fraud is or showed reckless or

493careless disregard." Petitioner did not meet the legal standard

502applied by the Administrative Law Judge. The exception is rejected.

51210. Petitioner's loth exception to the Findings of Fact

521addresses paragraph 31 of the RO. There is no citation to a rule that

535supports Petitioner's position, and there was no testimony in the

545record concerning the course materials. In addition, the record

554contains documentary evidence that Respondent was enrolled at FCNH.

563The exception is rejected.

56711. Petitioner's 11 th exception to the Findings of Fact

577addresses paragraph 32 of the RO. There is competent substantial

587evidence to support the findings in paragraph 32. The exception is

598rejected.

59912. Petitioner's 12 th exception to the Findings of Fact

609addresses paragraph 33 of the RO. Whether a document is void ab

621ini tio is a legal conclusion that is not supported in the record. The

635exception is rejected.

63813. Petitioner's first exception to Conclusions of Law

646addresses paragraph 40 and 41 of the RO. The Administrative Law

657Judge's conclusions are a reasonable interpretation of statute. The

666exception is rejected.

66914. Petitioner's second exception to Conclusions of Law

677addresses paragraphs 42 and 43 of the RO. The conclusions of the

689Administrative Law Judge are a reasonable interpretation of statute.

698The exception is rejected.

70215. Petitioner's third exception to Conclusions of Law

710addresses paragraphs 44 and 45 of the RO. The conclusions of the

722Administrati ve Law Judge are a reasonable interpretation of statute.

732The exception is rejected.

73616. Petitioner's fourth exception to Conclusions of Law

744addresses paragraph 52 of the RO. The exception does not state an

756appropriate basis for an exception, and the conclusions of the

766Administrative Law Judge are a reasonable interpretation of statute.

775The exception is rejected.

77917. Petitioner's fifth exception to Conclusions of Law

787addresses paragraphs 53 and 55 of the RO. The Administrative Law

798Judge concluded that a rescission of Respondent's credentials was

807necessary to find that Respondent was no longer entitled to a license.

819Petitioner supplied no case law contrary to that cited by the

830Administrative Law Judge. There was no evidence regarding the

839sufficiency of the documents to establish entitlement to licensure.

848The Administrative Law Judge made a factual finding that Respondent

858completed the necessary courses. The determination of the

866jurisdiction of the Division of Administrative Hearing is not within

876the authority of the Board of Massage Therapy. The exception is

887rejected.

88818. Petitioner's sixth exception to Conclusions of Law

896erroneously summarizes the basis of the Administrative Law Judge's

905analysis. The RO concludes that the proof of meeting the licensure

916qualifications has not been withdrawn by the entity which issued that

927proof and the Board does not have the authority to invalidate the proof

940of qualifications. The exception is rejected.

94619. Petitioner's seventh exception to Conclusions of Law

954addresses paragraph 58 of the RO. This is an exception to a findings

967of fact, not to conclusions of law. For reasons stated above, the

979exception is rejected.

98220. Petitioner's eighth exception to Conclusions of Law

990addresses paragraph 59 of the RO. The exception asserts that the

1001Administrative Law Judge failed to appreciate the requirements of

1010Section 480.041. The RO has a lengthy discussion of the requirements

1021of Section 480.041. The exception is rejected.

102821. Petitioner's ninth exception to Conclusions of Law

1036addresses paragraph 60 of the RO. The portion of paragraph 60 to

1048which Petitioner takes exception is incorporated into the theory of

1058the Administrative Law Judge that only the institution granting the

1068qualifications has the authority to invalidate them. The exception

1077is rejected.

107922. Petitioner's 10 th exception to Conclusions of Law addresses

1089paragraph 64 of the RO. The exception asserts that the

1099Administrative Law Judge erred in not considering Petitioner's

1107allegation that Respondent did not complete the courses necessary for

1117licensure. The transcript contains an extensive preliminary

1124discussion regarding this issue. Speculation about what the

1132Administrative Law Judge considered or didn't consider is not the

1142basis for an exception.

114623. Peti tioner' s 11 th exception to Conclusions of Law addresses

1158paragraph 68 of the RO. The credentials of Respondent have not been

1170rescinded by the issuing institution and the Board does not have the

1182authority to invalidate them. The exception is rejected.

119024. Petitioner's 12 th exception to Conclusions of Law addresses

1200paragraph 69 of the RO. The credentials of Respondent have not been

1212rescinded by the issuing institution and the Board does not have the

1224authority to invalidate them. The exception is rejected.

1232FINDINGS OF FACT

12351. The findings of fact set forth in the Recommended Order are

1247approved and adopted and incorporated herein by reference.

12552. There is competent substantial evidence to support the

1264findings of fact.

1267CONCLUSIONS OF LAW

12701.' The Board has jurisdiction of this matter pursuant to

1280Section 120.57(1), Florida Statutes, and Chapter 464, Florida

1288Statutes.

12892. The conclusions of law set forth in the Recommended Order

1300are approved and adopted and incorporated herein by reference.

1309WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that the

1318Administrative Complaint is dismissed.

1322This Final Order shall take effect upon being filed with the

1333Clerk of the Department of Health.

1339DONE AND ORDERED this ------- 2:/ day of

13472013.

1348Anthony

1349Executive

1350for Karen Chair

1353NOTICE OF RIGHT TO JUDICIAL REVIEW

1359A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO

1372JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW

1381PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE.

1391SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL

1404WITH THE AGENCY CLERK OF THE DEPARTMENT OF HEALTH AND A SECOND COPY,

1417ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT

1428OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN

1440THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL

1451MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO

1464BE REVIEWED.

1466CERTIFICATE OF SERVICE

1469I HEREBY CERTIFY that a true and correct copy of the foregoing

1481Final Order has been provided by u.s. Mail to George F. Indest III,

1494Esquire, 1101 Douglas Avenue, Altamonte Springs FL 32714; to John G.

1505Van Laningham, Administrative Law Judge, Division" of Administrative

1513Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee,

1521Florida 32399-3060; and by interoffice delivery to Candace Rochester,

1530Assistant General Counsel, Department of Health, 4052 Bald Cypress

1539Way, Bin #C-65, Tallahassee, Florida 32399-3265 this 22 oQ..day of

1549· 2013.

1551Deputy Agency Clerk

1554Shiying Peng ROFO.wpd

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/23/2013
Proceedings: Notice of Administrative Appeal filed.
PDF:
Date: 08/23/2013
Proceedings: Petitioner's Exceptions to the Recommended Order filed.
PDF:
Date: 08/23/2013
Proceedings: Agency Final Order filed.
PDF:
Date: 08/21/2013
Proceedings: Agency Final Order
PDF:
Date: 06/06/2013
Proceedings: Recommended Order
PDF:
Date: 06/06/2013
Proceedings: Transmittal letter from Claudia Llado forwarding Respondent's Proposed Exhibits numbered R-26 through R-43, which were not admitted into evidence, to the agency.
PDF:
Date: 06/06/2013
Proceedings: Recommended Order (hearing held March 19 and 22, 2013). CASE CLOSED.
PDF:
Date: 06/06/2013
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 05/03/2013
Proceedings: Respondent Peng's Proposed Recommended Order filed.
PDF:
Date: 05/03/2013
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 04/09/2013
Proceedings: Notice of Filing Transcript.
Date: 04/03/2013
Proceedings: Transcript of Proceedings Volume I-III (not available for viewing) filed.
PDF:
Date: 03/25/2013
Proceedings: Respondent Peng's Notice of Filing filed.
Date: 03/22/2013
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/21/2013
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for March 22, 2013; 10:00 a.m.; Lauderdale Lakes, FL).
Date: 03/19/2013
Proceedings: CASE STATUS: Hearing Partially Held; continued to March 22, 2013; 10:00 a.m.; Lauderdale Lakes, FL.
PDF:
Date: 03/19/2013
Proceedings: Notice of Filing Respondent's Responses to Petitioner's First Set of Interrogatories filed.
PDF:
Date: 03/19/2013
Proceedings: Notice of Filing Respondent Counsel's Letter of Respresentation filed.
PDF:
Date: 03/19/2013
Proceedings: Non-party Melissa Wade's Motion for Protective Order filed.
PDF:
Date: 03/19/2013
Proceedings: Respondent Peng's Notice of Filing filed.
PDF:
Date: 03/19/2013
Proceedings: Respondent Peng's Notice of Filing filed.
PDF:
Date: 03/19/2013
Proceedings: Respondent Peng's Notice of Filing filed.
PDF:
Date: 03/18/2013
Proceedings: Petitioner's Response to Respondent's Motion to Amend Respondent's Witness List filed.
PDF:
Date: 03/18/2013
Proceedings: Notice of Appearance (Douglas Ede) filed.
PDF:
Date: 03/18/2013
Proceedings: Respondent Peng's Notice of Filing filed.
PDF:
Date: 03/18/2013
Proceedings: Petitioner's Response to Respondent's Emergency Motion for Stay of Final Hearing Scheduled for March 19, 2013 filed.
PDF:
Date: 03/18/2013
Proceedings: Petition for Review of Non-final Agency Action filed.
PDF:
Date: 03/18/2013
Proceedings: Respondent Peng's Motion to Amend Respondent's Witness List filed.
PDF:
Date: 03/18/2013
Proceedings: Emergency Motion for Stay of Final Hearing Scheduled for March 19, 2013 filed.
PDF:
Date: 03/18/2013
Proceedings: Order on Petitioner`s Motion to Strike or Exclude Respondent`s Exhibits.
PDF:
Date: 03/15/2013
Proceedings: Notice of Scrivener's Error filed.
PDF:
Date: 03/15/2013
Proceedings: Motion to Strike or Exclude Respondent's (Proposed) Exhibits filed.
PDF:
Date: 03/15/2013
Proceedings: Petitioner's Response to Respondent's Second Request for Production of Documents filed.
Date: 03/14/2013
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 03/14/2013
Proceedings: Order on Respondent`s Motion to Compel.
Date: 03/14/2013
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 03/14/2013
Proceedings: Notice of Filing Petitioner's Proposed Exhibits filed.
PDF:
Date: 03/14/2013
Proceedings: Respondent Peng's Notice of Filing Proposed Exhibits filed.
PDF:
Date: 03/12/2013
Proceedings: Petitioner's Response to Respondent's Motion to Compel Answers to Respondent's Second Set of Interrogatories filed.
PDF:
Date: 03/12/2013
Proceedings: Notice of Taking Telephonic Deposition (of S. Peng) filed.
PDF:
Date: 03/08/2013
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 03/06/2013
Proceedings: Respondent's Motion to Compel Answers to Respondent's Second Set of Interrogatories and Supporting Memorandum of Law filed.
PDF:
Date: 03/05/2013
Proceedings: Respondent Peng's Second Request for Production of Documents filed.
PDF:
Date: 02/25/2013
Proceedings: Order Denying Continuance of Final Hearing.
PDF:
Date: 02/25/2013
Proceedings: Order Denying Motion to Clarify.
PDF:
Date: 02/22/2013
Proceedings: Joint Motion for Continuance of Formal Hearing filed.
PDF:
Date: 02/22/2013
Proceedings: Respondent Peng's Motion to Clarify Order Denying Motion to Consolidate Related Cases in DOAH Case No.: 12-3610PL filed.
PDF:
Date: 02/15/2013
Proceedings: Order Denying Motion to Consolidate Related Cases.
PDF:
Date: 02/15/2013
Proceedings: Notice of Serving Petitioner's Responses to Respondent's Second Set of Interrogatories filed.
PDF:
Date: 02/12/2013
Proceedings: Respondent Peng's Notice of Substitution of Counsel filed.
PDF:
Date: 02/11/2013
Proceedings: Petitioner's Response to Respondent's Motion to Consolidate Related Cases filed.
PDF:
Date: 02/08/2013
Proceedings: Notice of Appearance (filed by Lance Leider) filed.
PDF:
Date: 02/04/2013
Proceedings: Respondent Peng's Motion to Consolidate Related Cases filed.
PDF:
Date: 02/04/2013
Proceedings: Respondent Peng's Notice of Service of Responses to Petitioner's First Set of Interrogatories filed.
PDF:
Date: 01/22/2013
Proceedings: Petitioner's Response to Respondent Peng's Notice of Related Cases filed.
PDF:
Date: 01/16/2013
Proceedings: Notice of Service of Respondent's Second Set of Interrogatories to Petitioner filed.
PDF:
Date: 01/15/2013
Proceedings: Respondent Peng's Notice of Related Cases filed.
PDF:
Date: 01/08/2013
Proceedings: Respondent Peng Response to Petitioner's Request for Admissions filed.
PDF:
Date: 01/07/2013
Proceedings: Respondent Shiying Peng, L.M.T.'s Reponse to Petitioner's Request for Production filed.
PDF:
Date: 01/04/2013
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for March 19, 2013; 9:00 a.m.; Lauderdale Lakes, FL).
PDF:
Date: 12/20/2012
Proceedings: Joint Moton for Continuance of Formal Hearing filed.
PDF:
Date: 12/17/2012
Proceedings: Corrected Notice of Taking Telephonic Deposition Duces Tecum (of M. Wade) filed.
PDF:
Date: 12/17/2012
Proceedings: Notice of Taking Telephonic Deposition Duces Tecum (of M. Wade) filed.
PDF:
Date: 12/10/2012
Proceedings: Notice of Serving Petitioner's First Request for Production, First Request for Interrogatories and First Request for Admissions to Respondent filed.
PDF:
Date: 11/29/2012
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 11/29/2012
Proceedings: Notice of Hearing by Video Teleconference (hearing set for January 14, 2013; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL).
PDF:
Date: 11/21/2012
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 11/21/2012
Proceedings: Respondent Shiying Peng, L.M.T.'s Notice of Filing filed.
PDF:
Date: 11/21/2012
Proceedings: Notice of Appearance (D. Murray) filed.
PDF:
Date: 11/15/2012
Proceedings: Initial Order.
PDF:
Date: 11/14/2012
Proceedings: Notice of Appearance (filed by J. Friedberg).
PDF:
Date: 11/14/2012
Proceedings: Agency referral filed.
PDF:
Date: 11/14/2012
Proceedings: Election of Rights filed.
PDF:
Date: 11/14/2012
Proceedings: Administrative Complaint filed.

Case Information

Judge:
JOHN G. VAN LANINGHAM
Date Filed:
11/14/2012
Date Assignment:
11/15/2012
Last Docket Entry:
09/23/2013
Location:
Lauderdale Lakes, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Related Florida Statute(s) (13):