12-003990PL Department Of Health, Board Of Massage Therapy vs. Ranjie Xu, L.M.T. Status: Closed Recommended Order on Wednesday, June 26, 2013.

Summary: Lack of clear and convincing evidence that Respondent failed to complete an approved course of study. Allegations relating to fraud and mistake abandoned by the Department. Recommend dismissal of Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY ,

Petitioner ,

vs. Case No. 12 - 3990PL

RANJIE 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 May 9, 2013, before Administrative

Law Judge Edward T. Bauer of the Division of Administrative

Hearings.

APPEARANCES

Fo r Petitioner: Candace Rochester, 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 issues in this case are whether Respondent committed

the a llegations 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 three - count Administrative Complaint

("Complaint") agai nst Respondent, Ranjie 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 therapy through "error of the

Department of Health or b y fraudulent misrepresentation." The

Department further alleges, in Count Two, that Respondent

submitted fraudulent documentation in connection with her

application for licensure, contrary to section 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 mass age

school or complete an appropriate internship program.

Respondent timely requested a formal hearing to contest the

allegations, and, on December 12, 2012, the matter was referred

to the Division of Administrative Hearings ("DOAH") and assigned

to Admini strative Law Judge John G. Van Laningham. Thereafter,

on May 6, 2013, Judge Van Laningham transferred this cause to

the undersigned for further proceedings.

As noted above, the final hearing was held on May 9, 2013,

at the outset of which the Department a nnounced that it had

abandoned Counts One and Two of the Complaint. 1 / The Department

called one witness, Melissa Wade, and introduced two exhibits

into evidence, numbered 1 - 2. Respondent testified on her own

behalf and introduced 14 exhibits, numbered 1 - 14.

The final hearing transcript was filed with DOAH on May 21,

2013. Pursuant to Respondent's unopposed request, the deadline

for the submission of proposed recommended orders was extended

to June 11, 2013. Thereafter, the parties submitted proposed

rec ommended orders, which the undersigned has considered in the

preparation of this Recommended Order. 2 /

FINDING S OF FACT

A. The Parties

1. The Department and the Board of Massage Therapy

("Board") have regulatory jurisdiction over licensed massage

therapis ts 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 mor e disciplinable offenses.

2. On June 18, 2009, the Department issued Respondent

license number MA 56426, which authorized her to practice

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

of record is 7027 West Broward Boulevard, Box 278, Pla ntation,

Florida 33317.

B. The Events

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

to this proceeding, was a citizen of China. In 2006, Respondent

immigrated to the United States and, some two years later,

enrolled at Royal Irvin College ( "Royal Irvin"), an institution

located in Monterey Park, California, that offered massage

therapy instruction. In March 2009, upon Respondent's

successful completion of a course of study comprising

500 classroom hours, Royal Irvin awarded her a degree.

4. Subsequently, on May 22, 2009, Respondent passed the

National Certification Examination for Therapeutic Massage and

Bodywork. At or around that time, and in response to a help -

wanted advertisement, Respondent relocated to Florida to pursue

a career in m assage therapy.

5. Upon Respondent's arrival in Florida, her potential

employer, Woody McLane, advised her that she needed to obtain a

Florida license in order to be hired as a massage therapist.

Owing to the fact that Royal Irvin was not a Board - approve d

massage school, only two paths to licensure were available to

Respondent: complete a course of study at an approved

institution; or, alternatively, satisfy the requirements of an

apprenticeship program.

6. On May 26, 2009, Respondent and Mr. McLane tra veled to

the Pompano Beach campus of the Florida College of Natural

Health ("FCNH"), a Board - approved massage school. Respondent's

ensuing dealings with FCNH's registrar are discussed shortly;

first, though, a description of FCNH ÏÏ and its responsibilities

under Florida law ÏÏ is in order.

7. 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 Florida Commission for Independent Edu cation

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

issued the necessary license to FCNH pursuant to

section 1005.32, Florida Statutes (2012). 3 / In addition to being

duly licensed by the state, FCNH is accredited by the

Accrediting Comm ission 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.

8. At the times relevant to this proceedin g, 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

o f 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 author ity 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 directly 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.

(emphasis added).

9. As an ins titution 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. 4 /

Regarding these required practices, section 1005.04, Florida

Statutes (2008), provided dur ing 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

solic its 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 sched ule

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 week prior to enro llment

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 ability to complet e 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 practic ing 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 regarding the

institution may be obtained by co ntacting the

Commission for Independent Education,

Department of Education, Tallahassee.

(emphasis added).

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

proceeding, the CIE's rule relating to fair consumer practices

provided in relevant part as follo ws:

(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 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 mus t 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

credits to other institutions and from ot her

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 agreement on file. Units or

credits applied t oward 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 an d

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, eval uated,

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 m atters 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).

11. 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 elsewhere (including from

schools such as Roya l Irvin, which are 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. 5 /

Further, when exerc ising 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 previously - earned credits , to the extent specified,

were acceptable in lieu of the student's taking courses at FCNH.

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

FCNH's registrar, Glenda Johnson, on May 26, 2009. Notably,

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

relevant times, to generate official transcripts and diplomas on

behalf of FCNH. 6 /

13. 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 of a multi - stor y 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 and Mr. McLane (as

noted previously, Respondent's potent ial employer) to her

office.

14. During the meeting that 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 document s, which included her

diploma and transcript from Royal Irvin, as well as proof of her

national certification.

15. From what can be fairly inferred from the record, it

appears that Ms. Johnson led Respondent to believe, erroneously,

that her existing cour sework and credentials were sufficient for

licensure and that all Respondent needed to do was transfer her

previously - earned credits to FCNH. (Among other things,

Ms. Johnson should have informed 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 required 8 / for

licensure.)

16. 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 agreement reflects (and

Respondent's credible testimony confirms) that, on the date of

their meeting, Ms. Johnson collected a cash payment from

Respondent totaling $418.98. 9 / Ms. Johnson also furnished

Respondent with a receipt, the face of which indicated that the

payment was for a "transfer of [licensure]."

17. In addition to the enrollment agreement, Respondent

signed a three - page form titled, "State of Florida Application

for Massage Thera pist Licensure." 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.

18 . At the end of the meeting, Ms. Johnson advised

Respondent that no further action on her part was required and

that all she need do was "go home and wait." Thereafter, and on

Respondent's behalf, Ms. Johnson submitted to the Department

Respondent's appl ication for licensure. The application was

accompanied by a number of supporting documents, including two

"Certificates of Completion," both of which bore Ms. Johnson's

signature and FCNH's official seal. The first such certificate

reflected that Respond ent had satisfied a two - hour course

relating to the prevention of medical errors, while the second

indicated the completion of a "Therapeutic Massage Training

Program (Transfer of Licensure)." The application package

prepared and submitted by Ms. Johnson also contained: a

"Transfer of Credit Form" signed by Ms. Johnson, which indicated

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 and

a three - credit course concerning "HIV/AIDS"; an FCNH transcript

that bore Ms. Johnson's signature and indicated that Respondent

had completed a 500 - hour program titled "Therapeutic Massage

Training Program (Transfer of Licensure)"; Respo ndent's diploma

and transcript from Royal Irvin; proof of Respondent's national

certification as a massage therapist; and a copy of Respondent's

permanent resident card. Notably, of the FCNH documents listed

above, Respondent was aware only of the "Transf er of Credit

Form" prior to the initiation of the current proceeding.

19. 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 st udy or training or course of study" and constitute

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.")

20. Subsequently, on June 18, 2009, the Department issued

Respondent her license to practice massage therapy. With the

exception of the instant proceeding, there is no evidence that

Respondent's license has been the subject of prior disc iplinary

action.

21. 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 Irvi n, 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.

22. Ms. Wade reviewed the materials and detected some

anomalies in them. She was una ble to find records 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 s igned 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 thereaft er,

in December 2011, FCNH terminated Ms. Johnson's employment.

23. 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

investigatio n, with which FCNH cooperated. The investigation

uncovered numerous graduates, including Respondent, whose

credentials FCNH could not confirm.

24. Respondent has not surrendered her Diploma or

otherwise acceded to the allegation that the credentials FCNH

conferred upon her are invalid. While Ms. Wade testified at

hearing that Ms. Johnson should not have conferred Respondent an

FCNH Diploma based on Respondent's Royal Irvin credits, there is

no evidence that FCNH has initiated a legal proceeding to revoke

or withdraw Respondent's Diploma. At present, therefore, there

is no legally binding or enforceable determination that the

Diploma is void or that Respondent is without rights and

privileges thereunder.

CONCLUSIONS OF LAW

A. Jurisdiction

25. DOAH has j urisdiction over the parties and subject

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

Statutes.

B. The Burden and Standard of Proof

26. This is a disciplinary proceeding in which the

Department seeks to discipline Respondent's license to practice

massage therapy. Accordingly, the Department must 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).

27. 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 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 be 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 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. 19 94).

C. Statutory Construction/Notice

28. 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, 1143 (Fla. 1st DC A 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 s trictly 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.").

2 9. Due process prohibits an agency from taking

disciplinary 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 di sciplined for an offense not charged in

the complaint"); Delk 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 violate d"); § 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 . . . .").

D. The Charges Against Respondent

30. As noted previously, the Department has abandoned

Counts One and Two of the Complaint, which alleged,

respectively, that Respondent's license was issued in error and

that Respondent committed acts of fraud in connection with her

application for licensure. Count Three, the Complaint's only

remaining charge, alleges a violation of section 480.046(1)(o),

a provision which subjects a licensee to discipline for, among

other things, running afoul of 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 vio lated a provision 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.

31. As an initial matter, the undersigne d is dubious of

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, 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 statutory requirements is

unqualified, but being unqualified is not

the same as being a law breaker. Because

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).

Dep't of Health, Bd. of Massage Therapy v. Diamond , Case

No. 12 - 38 25PL, 2013 Fla. Div. Adm. Hear. LEXIS 204, *30 - 31 (Fla.

DOAH Apr. 9, 2013)(Van Laningham, J.); see also Dep't of Health,

Bd. of Massage Therapy v. Jiang , Case No. 12 - 3610PL, 2013

Fla. Div. Adm. Hear. LEXIS 340, *15 (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

without being qualified."). Even assuming, however, that a

licensee can be properly disciplined for hav ing "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 study at a Board - approved massage school.

32. 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 transcr ipt 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 i n 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

s pecifically state that the student

successfully completed the entire course of

study, the transcript must be accompanied by

a diploma or certificate of completion

indicating the dates of attendance and

completion.

(emphasis added).

33. As discussed previ ously, 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 that the

Diploma constituted proof of Respondent's completion of a course

of study in massage therapy that met the minimum standards.

(The undersigned infers as much in light o f the Department's

abandonment of Count One of the Complaint, wherein it alleged

that Respondent's license was issued in error.) The Diploma,

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

was in May 2009: 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 u nder

that credential ÏÏ which include her licensure as a massage

therapist ÏÏ should be terminated.

34. 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 Depar tment has

raised 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

Tallahas see Community College. 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 i nstitution, 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

p owerless 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. The upshot is that , in

arguing that 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

ne ither 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 i s

because Diamond 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. LEX IS at *36 - 37, 40 (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 wa s 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 auth orized to revoke a degree upon good

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

protect his interest).

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

continues to certify that Respondent completed a course of study

in massa ge 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 2 6 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 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 2 6 th day of June , 2013 .

ENDNOTE S

1/ See Final Hearing Transcript, pp. 6 - 7.

2 / Unless otherwise noted, all statutory and rule references are

to current versions.

3 / The undersigned takes official recognition of the public

record of the Florida Department of Education concerning FCNH's

licensure status, which is available onli ne at

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

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

4 / See § 1005.32(5), Fla. Stat.

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

6 / Melissa Wade, an FCNH managerial employee, credibly tes tified

that FCNH's registrar possesses actual authority to print and

sign official transcripts. See Final Hearing Transcript, p. 41,

lines 2 - 4. With respect to diplomas and certificates, however,

Ms. Wade further asserted that the registrar is authorized to

print ÏÏ but not sign ÏÏ such documents. Id. The undersigned

rejects this portion of Ms. Wade's testimony and concludes,

based upon the circumstances surrounding Respondent's

interaction with Ms. Johnson (and the fact that the Department

granted Responde nt's application for licensure, notwithstanding

the absence of any signature other than the registrar's on the

FCNH certificates), that Ms. Johnson had actual authority to

sign each of the documents included with Respondent's

application.

7 / See Respon dent's Exhibits 13 & 14.

8 / See Fla. Admin. Code R. 64B7 - 25.001(1)(d) & (1)(f) (June 15,

2009); see also § 456.013(7), Fla. Stat. (2008)("The boards, or

the department when there is no board, shall require the

completion of a 2 - hour course relating to pr evention of medical

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

course shall be approved by the board or department, as

appropriate . . . .").

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

$218.98 was assessed, as well as a transfer fee in the amount of

$150.00.

COPIES FURNISHED:

Candace Rochester, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

June H. Zhou, Esquire

June Zhou, PLLC

Suite 209

2136 Saint Andrews Boulevard

Boc a Raton, Florida 33433

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 Cypress 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 file d with the agency that

will issue the Final Order in this case.