12-003824PL Department Of Health, Board Of Massage Therapy vs. Meihua Qiu, L.M.T. Status: Closed Recommended Order on Monday, June 17, 2013.

Summary: It was not proven that Respondent obtained license by fraud or misrepresentation

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY ,

Petitioner ,

vs. Case No. 12 - 3824PL

MEIHUA QIU, L.M.T. ,

Respondent .

/

RECOMMENDED ORDER

On April 2 , 2013, a final administrative hearing was held in

this case by video teleconference at sites in Talla ha ssee and

Orlando before J. Lawrence Johnston, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Candace Roche ster, Esquire

Department of Health

Bin C65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

For Respondent: Maggie Schultz, Esquire

Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monro e Street, Suite 202

Post Office Box 551

Tallahassee, 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,

Meihua Qiu, based on the mann er in which she applied for and

obtained her license.

PRELIMINARY 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 o r through fraudulent misrepresentation; in Count II, that

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 t o 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 4 admitted in evidence. The Respondent testified and had

Exhibits R - 1 and R - 8 through R - 13 admitted in evidence. The

Transcript of the final hearing was filed, and the parties filed

proposed recommended orders that have been considered.

FINDINGS OF FACT

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

United States in 2001. She enrolled in Royal Irvin College in

California to study massage therapy. She completed a 500 - hour

course of study and graduated in September 2007. The course of

study included classes on HIV/AIDS and prevention of medical

er rors. In November 2007, she sat for and passed the examination

administered by the National Certification Board for Therapeutic

Massage and Bodywork (NCBTMB).

2. The Respondent moved to Florida because she had family

and friends there. One of her frie nds knew someone who had gone

to the Florida College of Natural Health (FCNH), which is

approved by the Board of Massage Therapy (Board). In

December 2007, the Respondent went to FCNHÓs Pompano campus to

determine what was necessary for the Respondent to be licensed in

Florida as a massage therapist.

3. When the Respondent arrived at FCNH's Pompano campus on

December 21, 2007, the receptionist directed her to see Glenda

Johnson, who was the school's student coordinator and functioned

as the registrar. The Respondent showed Johnson a copy of her

Royal Irvin College diploma and transcript and her NCBTMB

certificate, which Johnson reviewed. The diploma and transcript

were not official, but the Department does not dispute that they

are true and correct.

4. It was not FCNH's normal practice at the time for

Johnson to review transcripts to determine how much credit to

accept from another school. This was normally done by the

school's education department. However, Johnson was acting as

the schoolÓs regi strar and 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 b y examination based on her

500 - hour course of study at, and diploma from, Royal Irvin

College and her NCBTMB certificate. Everything in the

application filled out and signed by the Respondent was true and

correct at that time.

6. Johnson also had the R espondent fill out and sign an

FCNH enrollment agreement. Johnson signed the agreement, acting

as school registrar, to enroll the Respondent at FCNH. The

enrollment agreement included a statement that FCNH would

evaluate collegiate and post - secondary tra ining, military

experience, or civilian occupations, and that the Respondent

would be given appropriate credit, if criteria to measure the

value of such training and experience were met, as determined by

FCNH.

7. Johnson then gave the Respondent a copy of the

April 2003 edition of the statutes and rules governing the

practice of massage therapy in Florida and materials for FCNHÓs

course in Prevention of Medical Errors and brought her to a

classroom. There was an instructor in the classroom who

explaine d the materials to the Respondent and answered her

questions as she read and studied the materials for about three

to four hours. There were other students and staff in the

classroom with the Respondent but they were not studying the same

materials as the Respondent and the instructor was directing his

explanations and answers to questions to the Respondent, not the

other students. The Respondent was not tested or graded on what

she studied.

8. When the Respondent finished studying the materials,

John son told her that she had completed the course requirements.

The Respondent did not have any reason to doubt Johnson, who was

acting as the schoolÓs 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).

9. Actuall y, even if credit for all other educational

requirements for Florida licensure by examination were

transferred from the Royal Irvin College, the Respondent was

required to complete a ten - hour class in Florida statutes and

rules. Fla. Admin. Code R. 64B7 - 3 2.003 (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 ta ken in - person,

with a faculty member present. Fla. Admin. Code R. 64B7 - 32.001

(Mar. 25, 1986).

10. Johnson had the Respondent pay $520 for FCNH's tuition

and the Board's $205 license application fee. Johnson said she

would file the application for the Respondent. The Respondent

did not speak to Johnson again or return to FCNHÓs Pompano campus

after December 21, 2007.

11. At some point in time on or after December 21, 2007,

Johnson completed section III of the Florida license application,

which is a transfer of credit form, and the Respondent's FCNH

transcript. The transfer of credit form indicated that FCNH was

accepting: 150 credit hours from Royal Irvin College in the

category Anatomy and Physiology (for a course titled

Musculoskeletal); 225 cre dit hours in the category Basic Massage

Therapy and Clinical Practicum (for a course titled Neuromuscular

Massage); 15 credit hours in the category Theory and Practice of

Hydrotherapy (without specifying the course taken); 95 credit

hours in the category A llied Modalities (for a course titled

Sports Massage); and 3 hours in the category HIV/AIDS (for a

course titled HIV/AIDS). The form indicated that to qualify for

examination the Respondent needed to take ten hours in the

category Statutes/Rules and Histo ry of Massage and two hours in

the category Allied Modalities (for medical errors prevention) at

FCNH. Finally, the form showed the total credit hours for all

schools: 150 credit hours in the category Anatomy and

Physiology; 225 credit hours in the categ ory Basic Massage

Therapy and Clinical Practicum; ten credit hours in the category

Statutes/Rules and History of Massage; 15 credit hours in the

category Theory and Practice of Hydrotherapy; 97 credit hours in

the category Allied Modalities; and 3 credit h ours in the

category HIV/AIDS.

12. At some point in time on or after December 21, 2007,

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), and assigning credits for

those credit hours (a total of 25.84 credits, including 0.8

credit earned at FCNH).

13. At some point in time on or after December 21, 2007,

Johnson also completed F CNH certificates of completion for the

Respondent indicating that the Respondent took and successfully

completed FCNH's two - hour class titled Prevention of Medical

Errors and 12 hours of FCNH's Therapeutic Massage Training

Program (Transfer of License).

14. Johnson sent the Respondent's license application (with

$205 fee), Royal Irvin College diploma and transcript, and NCBTMB

certificate, together with the documents Johnson completed on or

after December 21, 2007. She did not provide copies to the

Resp ondent. The Board received the submission on December 27,

2007.

15. On December 28, 2007, the Board sent the Respondent a

copy of her application, without the supporting documentation,

and a letter saying the application was incomplete because her

driv er license number was omitted. The Respondent added the

driver license number and re - submitted the application on

January 7, 2008. On January 9, 2008, the Board issued the

Respondent massage therapy license MA 52312.

16. The Respondent paid Johnson by check. There was no

evidence as to what happened to the balance of the money paid to

Johnson. No canceled check was produced, and the evidence is not

clear if the check was made payable to FCNH or to Johnson. Either

way, subsequent events suggest Johnso n probably pocketed the

difference between the $520 paid and the $205 license application

fee.

17. The Respondent's license application included both the

representation that the answers and statements in or in support

of her application were true and co rrect and the acknowledgement

that any false information on or in support of the application

was cause for denial, suspension, or revocation of her license.

Although true and correct when the Respondent filled it out and

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

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

supporting documentation prepared by Johnson.

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

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

E ffectiveness, 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 discovered discrepancies

in the documentation being submitted by those individuals. Wade

investigated further and discovered that Johnson never registered

t hese individuals as enrolled students. Johnson was terminated

from her employment as registrar for the school.

19. Beginning in January or February 2012, Wade began

notifying the Board about the individuals purporting to be FCNH

graduates, but who neve r actually were registered as enrolled

students and did not complete the school's Board - approved course

of study. As more such individuals were identified, the Board

was notified. The Respondent was one of the individuals reported

to the Board.

20. At some point in time, the Respondent became aware of

the DepartmentÓs concerns about the manner in which she obtained

her Florida massage therapist license. In October 2012, in an

attempt to resolve the Department's issues regarding her license,

the Respon dent took and successfully completed a Board - approved

continuing education (CE) course consisting of six hours of

Ethics and Standards, two hours of Preventing Medical Errors, two

hours of Laws and Rules Massage Practice, two hours of Pathology

of Chronic Conditions for Massage Therapists, and Living with

HIV/AIDS.

21. In October 2012, the Department filed emergency

suspension orders and administrative complaints against a number

of licensees who submitted suspect FCNH documentation with their

applicatio ns, including the Respondent.

22. Between her licensure and the emergency suspension

order, the Respondent practiced massage therapy in Florida.

During that time, there were no complaints of any kind against

the Respondent either by the Department or a ny consumer.

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

the Respondent had any intent to defraud the Department or the

Board. However, even assuming that Johnson had at least apparent

authority to transfer credit hours from Royal Irvin College 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 12 hours of

classes at FCNH, including a ten - hour class on Fl orida statutes

and rules and a two - hour class in Prevention of Medical Errors.

At the same time, those false misrepresentations were made by

FCNH, through its registrar, not by the Respondent.

CONCLUSIONS OF LAW

24. Since this is a license discipline c ase, the Department

must prove its allegations by clear and convincing evidence.

Dep't of Banking & 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 convi ncing 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 in 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)).

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

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

practice a profession . . . by fraudulent 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, including, but not

limited to, failing to provide initial information, fai ling 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).

26. 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 fals e 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 misrepre sentations in her license

application.

27. Similarly, the evidence was not clear and convincing

that the Respondent herself made misleading, untrue, or deceptive

representations on her license application, notwithstanding

Johnson's representations and s tatements 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 support of the application was cause

for denial, suspension, or revocati on of the license.

28. 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 with an

application supported by what appeared to be a transcript an d

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).

29. Even if the Responden t'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 R espondent 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 F CNH to determine

whether she was entitled to a transcript and certificates of

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

the Department and Board to do so.

30. In Count III, the Department alleges that the

Respondent violated section 480.046(1)(o), Florida Statutes

(2009), which subjects a l icensee 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 having completed a

course of study at a Board - approved massage sch ool. 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. Second,

if it did, it adds nothing to the violations alleged in Cou nts 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 enter a

final order dismissing the Administrative Complaint aga inst the

Respondent.

DONE AND ENTERED this 17 th day of June , 2013 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee 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 17 th day of June , 2013 .

COPIES FURNISHED:

Candace Rochester, Esquire

Departm ent of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

Maggie M. Schultz, Esquire

Rutledge, Ecenia and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32302

Anthony Jusevitch, Executive Di rector

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 Cypress Way

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGH T 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.