12-003883PL Department Of Health, Board Of Massage Therapy vs. Yu Yao Xu, L.M.T. Status: Closed Recommended Order on Friday, June 14, 2013.

Summary: Petitioner failed to demonstrate that Respondent's license was issued in error, nor did it prove that that Respondent is subject to discipline pursuant to section 480.041(1)(b). Fraud allegations abandoned by virtue of Petitioner's pre-hearing notice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY ,

Petitioner ,

vs. Case No. 12 - 3883PL

YU YAO XU, L.M.T. ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference at sites in Tallahassee and

Lauderdale Lakes, Florida, on April 11, 2013, before

Administrative Law Judge Edward T. Bauer of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Lealand L. McCharen, Esquire

Cecilie D. Sykes, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

For Respondent: June H. Zhou, Esquire

June Zhou, PLLC

Suite 209

2136 Saint Andrews Boulevard

Boca Raton, Florida 33433

STATEMENT OF THE ISSUE

The issue s in this case are whether Respondent committed the

allegations contained in the Administrative Complaint and, if so,

the penalty that should be imposed.

PRELIMINARY STATEMENT

On October 17, 2012, Petitioner, Department of Health

("Department"), filed a th ree - count Administrative Complaint

("Complaint") against Respondent, Yu Yao Xu. In Count One of the

Complaint, the Department alleges that Respondent violated

section 456.072(1)(h), Florida Statutes, in that she obtained her

license to practice massage th erapy by "fraudulent

misrepresentation[] or through an error of the department or the

board." The Department further alleges, in Count Two, that

Respondent submitted fraudulent documentation in connection with

her application for licensure, contrary to se ction 456.072(1)(w).

Finally, in Count Three, the Department asserts that Respondent's

license is subject to revocation pursuant to section

480.041(1)(b), Florida Statutes, which provides that, in order to

qualify for licensure as a massage therapist, an applicant must

complete a course of study at an approved massage school or

complete an appropriate internship program.

Respondent timely requested a formal hearing to contest the

allegations, and, on December 3, 2012, the matter was referred to

the Divisio n of Administrative Hearings ("DOAH") and assigned to

Administrative Law Judge John G. Van Laningham. Thereafter, on

April 8, 2013, the Department announced in writing that it no

longer "intend[ed] to pursue allegations of fraud by Petitioner

[sic] in the submission of her application for licensure as a

massage therapist . . . ." On April 10, 2013, Judge Van

Laningham transferred the instant matter to the undersigned for

further proceedings.

As noted above, the final hearing in this matter was held on

Ap ril 11, 2013, during which the Department presented the

testimony of Melissa Wade and Anthony Jusevitch. The Department

introduced four exhibits into evidence, numbered 1 - 4. Respondent

testified on her own behalf, presented the testimony of Di Zheng,

and introduced 13 exhibits, numbered 1 - 7, 15, 16, 18, 19, 20, and

21.

The final hearing transcript was filed with DOAH on

April 29, 2013. Pursuant to Respondent's unopposed request, the

deadline for the submission of proposed recommended orders was

extended to May 16, 2013. Thereafter, the parties submitted

proposed recommended orders, which the undersigned has considered

in the preparation of this Recommended Order. 1 /

FINDING S OF FACT

A. The Parties

1. The Department and the Board of Massage Therapy

("Boa rd") have regulatory jurisdiction over licensed massage

therapists such as Respondent. The Department furnishes

investigative services to the Board and is authorized to file and

prosecute an administrative complaint, as it has done in this

instance, when cause exists to suspect that a licensee has

committed one or more disciplinable offenses.

2. On July 31, 2008, the Department issued Respondent

license number MA 54053, which authorized her to practice massage

therapy in the state of Florida. Respondent' s address of record

is 2615 South University Drive, Davie, Florida 33328.

B. The Events

3. Respondent was born in China and, at all times relevant

to this proceeding, was a citizen of China. In 2001, Respondent

immigrated to the United States and becam e a citiz en of the state

of California.

4. In or around December 2006, Respondent enrolled at Royal

Irvin College ("Royal Irvin"), an institution located in Monterey

Park, California, that offered massage therapy instruction. Some

three months later, upo n Respondent's successful completion of a

course of study comprising 500 hours, Royal Irvin awarded her a

degree.

5. Thereafter, Respondent obtained permits to practice

massage therapy in three California municipalities and, on

July 26, 2007, passed the N ational Certification Examination for

Th erapeutic Massage and Bodywork.

6. In early 2008, Respondent relocated to south Florida in

pursuit of better - paying employment opportunities. Respondent's

search ultimately brought her to "Oriental Massage," whose owner,

Ah Ming, informed her that she needed to obtain a Florida license

to be eligible for hire. As Royal Irvin was not a Board - approved

massage school, Respondent needed to complete a course of study

at an approved institution or, alternatively, an appr enticeship

program.

7. At the suggestion of Mr. Ming, Respondent telephoned

Glenda Johnson, the registrar of the Florida College of Natural

Health ("FCNH") ÏÏ a Board - approved massage school. During their

initial conversation, Respondent explained her situ ation to

Ms. Johnson, who, in turn, recommended that Respondent come to

her office at FCNH's Pompano Beach campus.

8. Respondent's subsequent appointment with Ms. Johnson and

her application for licensure are discussed shortly; first,

though, a descripti on of FCNH ÏÏ and its responsibilities under

Florida law ÏÏ is in order.

9. FCNH, an incorporated nonpublic postsecondary

educational entity, holds a license by means of accreditation

that authorizes its operation in Florida as an independent

college. The Fl orida Commission for Independent Education

("CIE"), which regulates nonpublic postsecondary institutions,

issued the necessary license to FCNH pursuant to

section 1005.32, Florida Statutes (2012). 2 / In addition to being

duly licensed by the state, FCNH i s 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, Florida Statutes.

10. At 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 relevant part as

follows:

(1) In 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 dir ectly 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

Educa tion.

(emphasis added).

11. 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. 3 /

Regarding these required practices, section 1005.04 , Florida

Statutes (2008), 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 t hat 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

st atus 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 i n writing

at least 1 week 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 pr ogram, the

student's ability 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 pr ovided 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 s tate

licensure requirements for practicing related

occupations and professions in Florida;

* * *

(2) In addition, institutions that are

required to be licensed by the commission

shall disclose to prospective students that

additional information regardin g the

institution may be obtained by contacting the

Commission for Independent Education,

Department of Education, Tallahassee.

(emphasis added).

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

proceeding, the CIE's rule relating to fair consumer pract ices

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 fair 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 with fair consumer

practices.

(6) Each prospective s tudent 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, an d 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

institution shall disclose information to the

student regarding transferability of cr edits

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 it is the student's responsibility to

confirm whether or not credits will be

accepted by another institution of the

student's choice. . . . No representation

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 agreeme nt

on file. Units or credits applied toward the

award of a credential may be derived 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 receiving

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 instructors 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, or

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).

13. As a duly - licensed, accredited, Board - 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 elsewher e (including from schools

that were not Board - approved) 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. 4 / Fu rther, when exercising its

discretion to accept transfer credits, FCNH was 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 previous ly - earned credits,

to the extent specified, were acceptable in lieu of the student's

taking courses at FCNH.

14. Returning to the events at hand, Respondent met with

Ms. Johnson, FCNH's registrar, on March 17, 2008. Notably,

Ms. Johnson possessed actual authority, on that date and at all

relevant times, to generate official transcripts and diplomas on

behalf of FCNH.

15. The meeting, which took place on a weekday during

normal business hours, was held in Ms. Johnson's office ÏÏ located

on the first floor o f a multi - story building on FCNH's Pompano

Beach campus. Upon Respondent's arrival (at the main entrance),

a receptionist summoned Ms. Johnson, who, a short time later,

appeared in the lobby and escorted Respondent to her office.

16. During the meeting t hat ensued, Respondent reiterated

(with her limited English skills) her desire to obtain licensure

in Florida as a massage therapist. To that end, Respondent

presented Ms. Johnson with various documents, which included her

diploma and transcript from Roya l Irvin, copies of her existing

professional licenses, and proof of her national certification.

17. As the meeting progressed, Ms. Johnson made copies of

Respondent's records and asked her to sign an FCNH enrollment

agreement, which Respondent did. The a greement, which is part of

the instant record, indicates that Respondent was enrolling for

the purpose of "(Transfer of Licensure) Therapeutic Massage

Training." The agreement further reflects, and Respondent's

credible testimony confirms, that, on the da te of their meeting,

Ms. Johnson collected $520.00 in fees 5 / from Respondent.

18. In addition to the enrollment agreement, 6 / Ms. Johnson

filled out, and Respondent signed, a three - page form titled,

"State of Florida Application for Massage Therapist Licen sure."

In the application, Respondent truthfully disclosed, among other

things, that she had completed 500 hours of study at Royal Irvin;

that Royal Irvin was not approved by the Board; and that she had

not attended an apprenticeship program.

19. Before the meeting ended, Respondent observed

Ms. Johnson print and sign two documents: an FCNH Certificate of

Completion, which reflected that Respondent had satisfied a two -

hour course relating to the prevention of medical errors; and an

FCNH Certificate of Co mpletion indicating the completion of a

"Therapeutic Massage Training Program (Transfer of Licensure)."

When asked about the documents, Ms. Johnson informed Respondent,

erroneously, that her prior coursework and existing credentials

were sufficient for li censure. (Among other things, Ms. Johnson

should have advised Respondent that Board - approved coursework in

"HIV/AIDS" and the "prevention of medical errors" ÏÏ neither of

which Respondent completed until after 7 / the Complaint was filed

in this matter ÏÏ was r equired 8 / for licensure.) All Respondent

needed to do, Ms. Johnson incorrectly explained, was read an

FCNH - prepared booklet concerning the prevention of medical

errors. Consistent with Ms. Johnson's instructions, Respondent

took the booklet home and revi ewed its contents.

20. In the weeks that followed, the Department received

Respondent's application for licensure and various supporting

documents, which included: the FCNH certificates (discussed

above); a "Transfer of Credit Form" signed by Ms. Johnson , which

indicates that FCNH accepted Respondent's credits from Royal

Irvin, and, further, that Respondent's coursework at Royal Irvin

included a two - credit class involving the prevention of medical

errors; an FCNH transcript (signed by Ms. Johnson and bear ing the

school's seal) showing that Respondent had completed a 500 - hour

program titled "Therapeutic Massage Training Program (Transfer of

Licensure)"; Respondent's diploma and transcript from Royal

Irvin; and a copy of Respondent's national certification a s a

massage therapist.

21. Collectively, the credit transfer form, the FCNH

certificates, and the FCNH transcript "signify satisfactory

completion of the requirements of an educational or career

program of study or training or course of study" and constit ute a

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

section 1005.02(8), Florida Statutes. (These documents, which

Respondent's FCNH diploma comprises, will be referred to

hereafter, collectively, as the "Diploma.")

22. On May 30, 2008, the Depa rtment provided written

notification to Respondent that, upon initial review, her

application was incomplete because it failed to include copies of

her California esthetician's license and massage permit from the

city of Costa Mesa, California. Significan tly, the

correspondence noted no other irregularities or omissions

concerning Respondent's application or supporting documentation.

23. Consistent with the Department's request, Respondent

furnished copies of her esthetician's license and massage permit

from Costa Mesa. Thereafter, on July 31, 2008, the Department

issued Respondent her license to practice massage therapy.

24. Although the Department seeks to characterize the

issuance of Respondent's license as a "mistake" on its part, such

a contenti on is refuted by the final hearing testimony of Anthony

Jusevitch, the executive director of the Board. Mr. Jusevitch

testified, credibly, that the Respondent's application materials

contained no facial irregularities or flaws that would have

justified a denial:

Q. Mr. Jusevitch, is this, then, the

complete application file that was received

by the board?

A. Yes.

Q. When you look at all of the documents in

this application file, is there anything in

the file that would have caused the Board of

Massage Therapy to reject this application?

A. I didn't see anything that would have

cause[d] us to reject this application when I

review it; no.

* * *

A. No, there was nothing irregular about the

application. . . .

Final Hearing Transcript, pp. 83; 86.

25. 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 employee of

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

applications to sit for the National Certification Examination

(which the NCB administers) from FCNH graduates whose transcripts

seemed irregular. What these applicants had in common was that

they had earned their massage therapy diplomas from Royal Irvin,

and that the same member of FCNH's administration ÏÏ i.e., Ms.

Johnson ÏÏ had accepted their transfer credits. The NCB sent

copies of the suspicious credentials to FCNH.

26. Ms. Wade reviewed the materials and detected some

anomalies in them. She was unable to find reco rds in the

school's files confirming that the putative graduates in

question 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, but

she denied ÏÏ untruthfully, at least with respect to her dealings

with Respondent ÏÏ ever having taken money for doing so.

(Ms. Johnson provided the rather dubious explanation that she had

been merely trying to "help" people.) Shortly thereafter, in

Decembe r 2011, FCNH terminated Ms. Johnson's employment.

27. Thereafter, Ms. Wade notified the Department 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 cooperated. The investigation

uncovered approximately 200 to 250 graduates, including

Respondent, whose credentials FCNH could not confirm.

CONCLUSIONS OF LAW

A. Jurisdiction

28. DOAH has jurisdiction over the parties and subject

matter of this ca use, pursuant to section 120.57(1), Florida

Statutes.

B. The Burden and Standard of Proof

29. This is a disciplinary proceeding in which the

Department seeks to discipline Respondent's license to practice

massage therapy. Accordingly, the Department mus t prove the

allegations contained in the Administrative Complaint by clear

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

& Investor Prot. v. Osborne Sterne, Inc. , 670 So. 2d 932, 935

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292, 294

(Fla. 1987).

30. 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 co ntain "both qualitative and quantitative standards."

The court held that:

[C]lear 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

b e precise and explicit and the witnesses

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

al legations 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).

C. Statutory Construction/Notice

31. Disciplinary s tatutes 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, 1143 (Fla. 1st DCA 1992); 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.").

32. Due process prohibits an agency from taking

disciplina ry action against a licensee based on matters not

specifically alleged in the charging instrument. 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"); D elk v. Dep't of Prof'l Reg. , 595 So. 2d 966,

967 (Fla. 5th DCA 1992)("[T]he conduct proved must legally fall

within the statute or rule claimed [in the administrative

complaint] to have been violated"); § 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 whi ch warrant the intended

action . . . .").

33. With the foregoing principles in mind, the undersigned

turns to the three statutory offenses charged in the Complaint,

each of which is discussed separately below.

D. Count One

34. In Count One of the Compl aint, the Department alleges

that Respondent is in violation of section 456.072(1)(h), a

provision that, in relevant part, subjects a licensee to

discipline for obtaining a license "by fraudulent

misrepresentation[] or through an error of the department or the

board."

35. During the final hearing, the Department stipulated,

consistent with its pre - hearing filing of April 8, 2013, that it

had abandoned any allegation that Respondent had obtained her

license by fraudulent misrepresentation. See Final Hearin g

Transcript, p. 8, lines 18 - 25. Accordingly, the remaining issue

with respect to Count One is whether Respondent obtained her

license through an error of the Department or the Board.

36. In its Proposed Recommended Order, the Department

contends that th e issuance of a license to Respondent "was based

on an error by the Department who had been deceived by the

fictitious documents submitted in support of Respondent's

application for licensure." See Petitioner's PRO, p. 14.

Accordingly, the Department app ears to take the position that

Respondent herself has committed a disciplinable offense by

virtue of a (purported) unilateral error committed by a member of

the Department's staff. For the reasons that follow, the

Department's argument is rejected.

37. F irst, the Department's theory of unilateral error is

antithetical to the general procedure for licensing as set forth

in section 120.60(1), Florida Statutes, which provides:

(1) Upon receipt of an application for a

license, an agency shall examine the

app lication and, within 30 days after such

receipt, notify the applicant of any apparent

errors or omissions 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 within this 30 - day period.

Given that section 120.60 prohibits an agency from denying a

license for failure to correct an error or omission unless the

agency t imely notified the applicant of the particular deficiency

within 30 days after receiving the application, to allow the

agency:

[L]ater to revoke a license pursuant to

section 456.072(1)(h) based solely on a

purported deficiency in the licensee's

applicatio n 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.

Dep't of Health, Bd. of Massage Therapy v. Diamond , Case No. 12 -

3825PL, 2013 Fla. Div. Adm. Hear. LEXIS 204, *25 - 26 (Fla. DOAH

Apr. 9, 2013)(Van Laningham, J.).

38. In addition, the imposition of discipline pursuant to

section 456.072(1) requires a culpable "act" on that part of the

lic ensee. Id. at *26; § 456.072(1), Fla. Stat. ("The following

acts shall constitute grounds for [discipline]")(emphasis added).

Owing to the fact that a unilateral agency error does not

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

event doe s not provide a valid basis upon which to impose

discipline. For a disciplinable act to occur, the applicant

"must somehow use or take advantage of an agency error to obtain

her license." Diamond , 2013 Fla. Div. Adm. Hear. LEXIS 204

at *26. Based upon t he findings of fact contained herein, the

Department has failed to make such a showing. See Dep't of

Health, Bd. of Massage Therapy v. Jiang , Case No. 12 - 3610PL, slip

op. at 12 (Fla. DOAH June 11, 2013)(Johnston, J.)("Even if the

Respondent's license wer e 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.").

39. Even assuming, arguendo, that a unilateral mistake by

the Department or Bo ard can properly subject a licensee to

revocation, there is an absence of clear and convincing evidence

that the Department "erred" in granting Respondent's application

for licensure. As discussed previously, Respondent's application

package included proo f of graduation from a Board - approved

massage school in the form of an official transcript signed by

FCNH's registrar and two certificates of completion, which

likewise bore the registrar's official signature. Collectively,

these documents constituted evi dence of Respondent's successful

completion of an approved course of study, 9 / a fact that likely

accounts for the credible, unequivocal testimony of Mr. Jusevitch

that no basis existed to deny Respondent's application for

licensure. See Jiang , slip op. at 12 (concluding that evidence

failed to establish a violation of section 456.072(1)(h) where

the "Board was presented with an application supported by what

appeared to be a transcript and certificates of completion issued

by FCNH, which indicated that Resp ondent had completed a Board -

approved course of study and was entitled to licensure by

examination.").

40. For these reasons detailed above, Respondent is not

guilty of violating section 456.072(1)(h).

E. Count Two

41. The Department further asserts, in Count Two of the

Complaint, that Respondent is in violation of section

456.072(1)(w), which subjects a licensee to discipline for:

Failing to comply with the requirements for

profiling and credentialing, including, but

not limited to, failing to provide i nitial

information, failing to timely provide

updated information, or making misleading,

untrue, deceptive, or fraudulent

representations on a profile, credentialing,

or initial or renewal licensure application.

Although section 456.072(1)(w) encompasses a variety of

misconduct, it is notable that, in paragraph 25 of the Complaint,

the Department narrowed its theory of guilt to the allegation

that Respondent "submit[ed] a fraudulent transcript and

fraudulent certificates of completion with her application. "

42. Prior to the final hearing, the Department filed a

pleading titled, "Notice of Intent Not to Pursue Allegations of

Fraud" ("Notice"), which reads:

COMES NOW the Petitioner, by and through

undersigned counsel, and files this notice

that Petitioner does not intend to pursue

allegations of fraud by [Respondent] in the

submission of her application for licensure

as a massage therapist that is at issue

herein

Surprisingly, the Department contends that although the foregoing

Notice operated to abandon a ny allegation that Respondent

committed fraud, she is nevertheless subject to discipline under

the theory that her application for licensure was accompanied by

fraudulent documents: specifically, the FCNH transcript and

certificates prepared by Ms. Johnso n. It appears, in other

words, that the Department seeks to punish Respondent, whom the

Department no longer alleges is guilty of fraud, for the misdeeds

of FCNH's registrar.

43. There are several problems with the Department's

position, the first of whi ch is that the content of the Notice

would have caused any reasonable litigant to conclude, as

Respondent did, that all allegations of fraud had been abandoned.

To permit the Department to proceed onward in the face of the

Notice would, at least in the un dersigned's judgment, undermine

the fairness and integrity of this proceeding. Further, the

Department's current theory (i.e., that Respondent is responsible

for the fraudulent conduct of Ms. Johnson) was not pleaded in the

Complaint, which alleged only t hat Respondent had committed

fraud ÏÏ a claim later abandoned in the Notice. Finally, the

actions of Ms. Johnson, standing alone, do not provide a basis

upon which to convict Respondent, as section 456.072(1)(w)

requires evidence of personal misconduct by t he licensee. See

Pic N' Save v. Dep't of Bus. & Prof'l Reg. , 601 So.2d 245, 250

(Fla. 1st DCA 1992)("[O]ne's license to engage in an occupation

is not to be taken away except for misconduct personal to the

licensee"); Dep't of Health, Bd. of Massage Thera py v. Diamond ,

Case No. 12 - 3825PL, 2013 Fla. Div. Adm. Hear. LEXIS 204, *29 - 30

(Fla. DOAH Apr. 9, 2013)("The Department failed to prove that

Diamond knowingly, and with the intent to deceive the Department,

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

with, her application. Therefore, Diamond is not guilty of

of Count Two.

F. Count Three

44. Finally, the Department charges Respondent under

section 480.046(1)(o), which subje cts a licensee to discipline

for, among other things, violating any provision of chapter 480.

Specifically, the Department alleges that Respondent has not

"completed a course of study at a board - approved massage school"

and has therefore violated a provis ion of chapter 480 ÏÏ 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.

45. As an initial matter, the undersigned is dubious o f the

Department's attempt to punish Respondent for "violating" section

480.041(1), a provision that:

[D]oes not by its terms require compliant

behavior, either by prescribing minimum

standards of conduct or forbidding conduct

deemed wrongful. Rather, thi s 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 statutory requirements is unqualified,

but being unqualified is not the same as

being a lawbreaker. Beca use section

480.041(1) is not violable as that term is

ordinarily understood, the undersigned is

skeptical that any person can be punished for

"violating" section 480.041(1).

Diamond , 2013 Fla. Div. Adm. Hear. LEXIS 204 at *30 - 31; Dep't of

Health, Bd. of Massage Therapy v. Jiang , Case No. 12 - 3610 PL , slip

op. at 13 (Fla. DOAH June 11, 2013)(Johnston, J.)("[S]ection

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 wi thout being qualified."). Even assuming,

however, that a licensee can be properly disciplined for having

"violated" section 480.041(1)(b), the Department has failed to

prove, for the reasons detailed below, that Respondent did not

complete a course of stu dy at a Board - approved massage school.

46. At the time Respondent submitted her initial

application, Florida Administrative Code Rule 64B7 - 32.002

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 complet ion

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 co mpletion

indicating the dates of attendance and

completion.

(emphasis added).

47. As discussed previously, Respondent's application

included a Diploma that comprised the FCNH transcript, credit

transfer form, and certificates ÏÏ all of which were issued by the

school registrar, who possessed the actual authority to generate

documents of that type on behalf of FCNH. After reviewing

Respondent's application, the Department determined (correctly,

as Mr. Jusevitch's testimony establishes) that the Diploma

cons tituted proof of Respondent's completion of a course of study

in massage therapy that met the minimum standards. The Diploma,

which FCNH has not rescinded , continues to be exactly what it was

in July 2008: evidence of successful completion of a course of

study at a Board - approved massage school. The Department

contends, nevertheless, that because the registrar should not

have issued the Diploma, a fact of which Respondent was unaware

until the filing of the Complaint, Respondent's rights under that

crede ntial ÏÏ which include her licensure as a massage therapist ÏÏ

should be terminated.

48. Persuaded by the reasoning expressed in Department of

Health, Board of Massage Therapy v. Diamond , Case No. 12 - 3825PL,

2013 Fla. Div. Adm. Hear. LEXIS 204 (Fla. DOAH Apr. 9, 2013), a

case that involved facts nearly identical to those at hand, the

undersigned rejects the Department's implicit attempt to nullify

Respondent's Diploma. As Judge Van Laningham explained in

Diamond :

[T]he questions which the Department has

raise d implicating the Diploma's validity,

namely whether FCNH should have issued

Diamond a Diploma and ÏÏ to the point ÏÏ whether

the Diploma is operative as a legal

instrument under which Diamond has certain

rights and privileges, are not amenable to

adjudication in this administrative

proceeding. Neither the Department nor the

Board 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 C ollege. Diplomas, degrees, and

other educational credentials confer rights

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.

* * *

Diamond'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

Diamond 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.

FCNH has persuaded the Department that the

Diploma is invalid. But the Department, which

did not confer the Diploma, is powerless to

rev oke 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. The upshot is that, in arguing th at

Diamond is academically 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.

* * *

[W]hether 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 Diamo nd might have equitable defenses

to rescission, such as waiver and estoppel,

which could preclude FCNH from relying on so -

called irregularities to deny the validity of

the credentials that Ms. Johnson issued

Diamond in her capacity as FCNH's registrar

and agent. Obviously such equitable defenses

were useless to Diamond here, 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.

2013 Fla. Div. Adm. Hear. LEXIS at *36 - 37, 4 0 (internal citations

omitted); see also Jaber v. Wayne State Univ. Bd. of Governors ,

2010 U.S. Dist. LEXIS 88144, *10 (E.D. Mich. Aug. 26, 2010)

("[T]he Board of Governors nonetheless has the exclusive power to

revoke degrees. The Board was not involved in Jaber's revocation

process. Accordingly, [the] revocation of Jaber's Doctorate

degree is void"); Waliga v. Bd. of Trustees , 488 N.E.2d 850, 852

(Ohio 1986)(holding that a college or university acting through

its board of trustees is authorized to revok e a degree upon good

cause, provided the degree - holder is afforded a fair hearing to

protect his interest).

49. Because FCNH has not revoked the Diploma, the Diploma

continues to certify that Respondent completed a course of study

in massage therapy at a Board - approved school. For these reasons,

Count Three fails.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Respondent not guilty of the offenses charged in the Complaint.

DONE AND ENTERED this 1 4 th day of June , 2013 , in

Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, 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 1 4 th day of June , 2013 .

ENDNOTE S

1/ Unless otherwise noted, all statutory and rule referenc es are

to the current versions.

2 / The undersigned takes official recognition of the public

record of the Florida Department of Education concerning FCNH's

licensure status, which is available online at

http://app1.fldoe.org/cie/SearchSchools/detail.aspx ?

schoolid=2217 (last visited June 12, 2013).

3 / See § 1005.32(5), Fla. Stat.

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

5 / According to the enrollment agreement, a tuition fee of

$270.00 was assessed, as well as a transfer fee in the am ount of

$250.00.

6 / Attached to the enrollment agreement were various forms,

including a "Drug Free School Statement"; a FCNH notice of

student privacy rights; and a document titled, "Calculation Form

for a Graduate From Another Massage Therapy School ." See

Petitioner's Exhibit 2.

7 / See Respondent's Exhibit 19.

8 / See Fla. Admin. Code R. 64B7 - 25.001(1)(d) & (1)(f) (Mar. 31,

2008); see also § 456.013(7), Fla. Stat. (2008)("The boards, or

the department when there is no board, shall require th e

completion of a 2 - hour course relating to prevention of medical

errors as part of the licensure and renewal process. . . . The

course shall be approved by the board or department, as

appropriate . . . .").

9 / See Fla. Admin. Code R. 64B7 - 32.002 (Fe b. 21, 1996).

COPIES FURNISHED:

June H. Zhou, Esquire

June Zhou, PLLC

Suite 209

2136 Saint Andrews Boulevard

Boca Raton, Florida 33433

Lealand L. McCharen, Esquire

Cecilie D. Sykes, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallah assee, Florida 32399 - 3265

Anthony R. Jusevitch, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin C - 06

Tallahassee, Florida 32399 - 3256

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypr ess Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be f iled with the agency that

will issue the Final Order in this case.