12-004132PL Department Of Health, Board Of Massage Therapy vs. Hai Zhen Gong, L.M.T. Status: Closed Recommended Order on Tuesday, August 6, 2013.

Summary: Petitioner failed to demonstrate that Respondent's license was issued in error, nor did it prove that Respondent has not completed an approved course of study. Allegations of fraud personal to Respondent were abandoned.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY ,

Petitioner ,

vs. Case No. 12 - 4132PL

HAI ZHEN GONG, 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 June 27, 2013, before

Administrative Law Judge Edward T. Bauer of the Division of

Administrative Hearings.

APPEARANCE S

For Petitioner: Lealand L. McCharen, Esquire

Cecilie D. Sykes, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Responde nt: Bernard M. Cassidy, Esquire

Lubell and Rosen

200 South Andrews Avenue , Suite 900

Fort Lauderdale, Florida 33301

Qian Wen, Esquire

8117 Northwest 33rd Street

Doral, Florida 33122

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent committed

the allegations contained in the Amended Administrative

Complaint and, if so, the penalty that should be imposed.

PRELIMI NARY STATEMENT

On October 9, 2012, Petitioner, Department of Health

("Department"), filed a three - count Administrative Complaint

("Complaint") against Respondent, Hai Zhen Gong. In Count One

of the Complaint, the Department alleged that Respondent

violate d 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 by fraudulent misrepresentation

by submitting a fraudulent transcript and fraudulent

Certificates of Compl etion with her Application." The

Department further alleged, in Count Two, that Respondent

submitted fraudulent documentation (namely, a fraudulent

transcript and fraudulent certificates of completion) in

connection with her application for licensure, con trary to

section 456.072(1)(w). Finally, in Count Three, the Department

asserted 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

th erapist, an applicant must complete either a course of study

at an approved massage school or an approp riate internship

program.

Respondent timely requested a formal hearing to contest the

allegations, and, on December 21, 2012, the matter was referred

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

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

on March 18, 2013, the Department filed an unopposed request to

amend its Complaint. An order granting leave to amend was

issued the following day. The Amended Administrative Complaint

("Amended Complaint"), which included no additional charges,

refined the Department's theories with respect to Counts One and

Two. Specifically, the Department now contends that only one

fictitious or fraudulent document was submitted with

Respondent's application: a "Certificate of Completion for two

hours of Prevention of Medical Errors."

On June 26, 2013, Judge Van Laningham transferred the

instant matter to the undersigned for further proceedi ngs. A

final hearing was conducted the following day, at the outset of

which the Department announced that it had abandoned any claim

that Respondent was guilty of fraudulent conduct "in her

personal capacity." 1 / The Department presented the testimony of

one witness, Anthony Jusevitch, and introduced two exhibits into

evidence, numbered 1 and 2. (The deposition transcript of

Melissa Wade, identified as Petitioner's Exhibit 2, was received

in lieu of the witness' live testimony.) Respondent testified

on her own behalf and introdu ced two exhibits, numbered 1 and 2.

The final hearing T ranscript was filed with DOAH on July 3,

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

for the submission of proposed recommended orders was extended

to July 25, 2013. Thereafter, the parties submitted proposed

recommended 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") h ave 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 March 13, 2007, the Department issued Respondent

license number MA 49800, which authorized her to practice

massage therapy in the state of Florida. With the excepti on of

the instant proceeding, Respondent's license has not been the

subject of prior disciplinary action.

B. Respondent's Training and Application for Licensure

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

to this proceeding, was a citizen of China. Respondent

ultimately immigrated to the United States (the record is silent

as to the date) and, on July 6, 2007, enrolled at Royal Irvin

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

Park, California, that offered massage therapy instruction.

Some five months later, upon Respondent's successful completion

of a course of study comprising 500 hours, Ro yal Irvin awarded

her a degree.

4. Subsequently, on February 26, 2007, Respondent passed

the National Certification Examination for Therapeutic Massage

and Bodywork. At or around that time, Respondent relocated to

south Florida in pursuit of employment as a massage therapist.

5. From what can be gleaned from the record, it seems that

the owner of a massage studio, Ming Goa, informed Respondent

that she required a Florida license to be eligible for hire.

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

massage school, Respondent needed to complete a course of study

at an approved institution or, alternative ly, an apprentic eship

program.

6. On or about March 5, 2007, and at the apparent

suggestion of Mr. Goa, Respondent traveled to the Fort

Lauderdale campus of the Florida College of Natural Health

("FCNH"), a Board - approved massage school. On that occasion,

Respondent met with FCNH's registrar, Glenda Johnson, to discuss

the steps necessary to obtain a Florida license. The

particulars of Respondent's dealings with Ms. Johnson and

Respondent's subsequent application for licensure are discussed

shortly; first, though, a des cription of FCNH ÏÏ and its

responsibilities u nder 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

Education ("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, F CNH is accredited by the

Accrediting Commission of Career Schools and Colleges and by the

Commission on Massage Therapy. Finally, FCNH is a "Board -

approved massage school" within the meaning of that term as

defined in section 480.033, Florida Statutes.

8. 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 (Aug. 16, 1998), 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 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

E ducation.

(emphasis added).

9. 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. 4 /

Regarding these required practices, section 1005 .04, Florida

Statutes (2007), 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) an d that either directly or indirectly

solicits for enrollment any student shall :

(a) Disclose to each prospective student a

statement of the purpose of such institution,

its educational programs and curricula, a

description of its physical facilities, its

status regarding licensure, its fee schedule

and policies regarding retaining student fees

if a student withdraws, and a statement

regarding the transferability of credits to

and from other institutions . The institution

shall make the required disclosure s in

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 program, 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 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 t o state

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 regar ding the

institution may be obtained by contacting 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 pr actices

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 independe nt

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 pro spective 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 discl osures, and catalogs

of licensed institutions must also contain

the information required in subsections 6E -

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

* * *

(f) Transferability of credits: The

institution shall disclose information to

the student regarding transferabi lity of

credits to other institutions and from other

institutions. The institution shall

disclose that transferability of credit is

at the discretion of the accepting

institution , and that it is the student's

responsibility to confirm whether or not

credi ts 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

articulati on agreement on file.

* * *

(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 maki ng

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 ma ssage

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 that were not Board - approved) could be applied toward

the awar d 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

exercising its discretion to accept transfer credits, FCNH was

required to c omplete, 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 tak ing courses at FCNH.

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

Ms. Johnson, FCNH's registrar, on March 5, 2007. Notably, it

has not been shown that Ms. Johnson lacked the authority to

create official diplomas and transcripts on behalf of F CNH; on

the contrary, the greater weight of the evidence establishes

that Ms. Johnson possessed the actual authority, on that date

and at all relevant times, to generate such records. 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 - story building on FCNH's Fort

Lauderdale campus. Upon Respondent's arrival (at the main

entrance), a receptionist summoned Ms. Johnson, who, a few

minutes later, appeared in t he lobby and esco rted Respondent to

her office.

14. During the meeting that ensued, Respondent advised

Ms. Johnson (with her limited English skills) that she was a

recent graduate of Royal Irvin and that she wished to obtain

licensure in Florida as a mass age therapist. Ms. Johnson

immediately telephoned Royal Irvin, spoke with an employee of

that institution, and requested that Respondent's records be

faxed to FCNH. It appears that the Royal Irvin records were

furnished a short time later, at which point Ms. Johnson

informed Respondent, erroneously, that her existing coursework

was sufficient for licensure and that she could simply transfer

her previously - earned credits to FCNH. All Respondent needed to

do, Ms. Johnson incorrectly explained, was study FC NH - prepared

materials concerning the Florida rules and statutes relevant to

massage therapy. Significantly, Ms. Johnson also informed

Respondent ÏÏ again, incorrectly ÏÏ that her Royal Irvin credits

satisfied the requirement that a Florida applicant complete two

hours of board - approved coursework relating to the prevention of

medical errors. 7 /

15. As their March 5, 2007, meeting wound to a close,

Ms. Johnson escorted Respondent to FCNH's library, which was

located on the second floor of the same building. Re spondent

examined the materials that had been provided to her until

roughly 5:00 p.m., at which time Ms. Johnson advised her to

return the following morning "to study for another day."

Ms. Johnson also instructed Respondent bring funds to cover the

licensu re application fee and FCNH's tuition.

16. As instructed, Respondent returned the next morning to

FCNH's library, where she continued her studies until mid - to

late - afternoon. At that point, Ms. Johnson had Respondent sign

an application for a Florida mas sage therapy license, wherein

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. Upon her collection of the

license application fee (as well as "tuition" for FCNH ÏÏ more on

this in a moment), Ms. Johnson furnished Respondent with a

portfolio that contained several items, including an FCNH

document titled "Certificate of Completion Î Therapeutic Massage

Training Program (Transfer of Licensure)" that bore

Ms. Johnson's signature.

1 7. In the days that followed, Ms. Johnson furnished

Respondent's application for licensure to the Department. The

application was accompanied by various supporting docu ments,

which included: the "Certificate of Completion" identified in

the preceding paragraph of this Order; a "Transfer of Credit

Form" signed by Ms. Johnson, which indicates that FCNH accepted

Respondent's credits from Royal Irvin, and, further, that

Res pondent's coursework at Royal Irvin included two credit hours

involving the prevention of medical errors and three credit

hours relating to HIV/AIDS; an FCNH transcript (signed by

Ms. Johnson and bearing the school's seal) showing that

Respondent had compl eted a 500 - hour program titled "Therapeutic

Massage Training Program (Transfer of Licensure)"; Respondent's

transcript from Royal Irvin; and a copy of Respondent's national

certification as a massage therapist.

18. Subsequently, on March 13, 2007, the Dep artment

notified Respondent that her application had been granted and

that she would be mailed her license in four to six weeks. Six

weeks came and went without a license, at which point Respondent

contacted the Department and learned that certain documen tation

was missing. Unsure of what records the Department still

required, Respondent contacted Ms. Johnson, who, in turn,

furnished the Department with an FCNH document titled

"Certificate of Completion Î 2 Hours of Prevention of Medical

Errors." This ce rtificate bore FCNH's seal, as well as

Ms. Johnson's signature.

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 study 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. Although the Department seeks to characterize the

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

such a contention is refuted by the final hearing testimony of

Anthony Jusevitch, the executive director of the Board.

Mr. Juse vitch testified, credibly, that Respondent's application

materials contained no facial irregularities or flaws that would

have justified a denial:

Q. Okay. Now, based on both your

experience, and your review of this

application file, is there anything in that

application file that you would see that

would be an apparent error or omission in

this file?

A. No, there's nothing in this file that's

an apparent error or omission.

Fin al Hearing Transcript, p. 20.

C. Subsequent Events

21. In December 2011, a n individual with the National

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

placed a telephone call to Melissa Wade, an FCNH managerial

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

applications to sit for the National Certi fication 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

admin istration 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 unable to find records in the

school's files c onfirming that the putative graduates in

question had been enrolled as students. Ms. Wade confronted

Ms. Johnson, who admitted that she had created and signed the

problematic certificates, but denied ÏÏ untruthfully, at least

with respect to her dealings wi th 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.)

Ms. Johnson's employment with FCNH was terminated a short time

later.

23. Thereafter, Ms. Wade n otified 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 220 graduates, in cluding Respondent,

whose cred entials FCNH could not confirm.

24. At present, Respondent has neither surrendered her

Diploma, nor has she otherwise acceded to the allegation that

the credentials FCNH conferred upon her are invalid. Although

the evidence demonstrates that Ms. Johnson should not have

awarded Respondent an FCNH Diploma (because, among other

reasons, Respondent had not completed two hours of board -

approved coursework in the area of medical error prevention),

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.

25. Further , and just as important, it has not been shown

that Respondent provided Ms. Johnson (or any other FCNH

employee) with false information, nor does the evidence support

a finding that Respondent knew or should have known that

Ms. Johnson's issuance of the Di ploma was anything but routine

and in accordance with FCNH's academic policies. Under the

circumstances, it was entirely reasonable for Respondent to rely

upon Ms. Johnson's representations, as Respondent was entitled

under the law to receive accurate inf ormation from FCNH

concerning, among other things, the transferability of credits

to FCNH, as well as the relationship between FCNH's academic

program and the state's licensure requirements for massage

therapists.

CONCLUSIONS OF LAW

A. Jurisdiction

26. D OAH has jurisdiction over the parties and subject

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

Statutes.

B. The Burden and Standard of Proof

27. This is a disciplinary proceeding in which the

Department seeks to discipline Respondent's li cense 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).

28. 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

evi dence" 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 fi rm 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 , 64 5 So. 2d 398, 404 (Fla. 1994).

C. Statutory Construction/Notice

29. 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 (Fl a. 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 licen see.").

30. 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 disciplined 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 bee n 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 whic h affords reasonable notice to the

licensee of facts or conduct which warrant the intended

action . . . .").

31. With the foregoing principles in mind, the undersigned

turns to the three statutory offenses charged in the Amended

Complaint, each of which i s discussed separately below.

D. Count One

32. In Count One of the Amended Complaint, 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 l icense "by fraudulent

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

board."

33. During the final hearing, the Department announced

that it had abandoned any allegation that Respondent was guilty

of fraudulent behavior "in her personal c apacity." See Final

Hearing Transcript, p. 9, lines 18 - 20; p. 13, lines 12 - 15.

Accordingly, the only remaining issue with respect to Count One

is whether Respondent obtained her license through an error o f

the Department or the Board.

34. In its Propose d Recommended Order, the Department

contends that its issuance of Respondent's license was in error

because it was deceived by the improperly - issued Prevention of

Medical Errors Certificate of Completion, which Ms. Johnson

furnished to the Department durin g the application process.

Accordingly, the Department appears 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

Dep artment's argument is rejected.

35. First, 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

application 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 agenc y

shall not deny a license for failure to

correct an error or omission or to supply

additional information unless the agency

timely notified the appli cant 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 timely 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 so lely on a

purported deficiency in the licensee's

application of which the agency failed to

give timely notice under section 120.60 not

only would erode the protection that the

latter statute affords specific licensees,

but also would undermine the integrit y 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 Ap r. 9, 2013)(Van Laningham, J.).

36. In addition, the imposition of discipline pursuant to

section 4 56.072(1) requires a culpable "act" on that part of the

licensee . 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 does 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 the 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,

2013 Fla. Div. Adm. Hear. LEXIS 34 0, *14 (Fla. DOAH June 11,

2013)(Johnston, J.)("Even if the Respondent'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 disci plined for such an error .").

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

the Department or Board 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 proof 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 bor e the registrar's official signature.

Collectively, these documents constituted evidence of

Respondent's successful completion of an approved course of

study, 8 / a fact that likely accounts for the credible,

unequivocal testimony of Mr. Jusevitch that Resp ondent's

application materials included no errors or omissions. See

Jiang , 2013 Fla. Div. Adm. Hear. LEXIS 340 at *13 - 14 (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 Respondent

had completed a Board - approved course of study and was entitled

to licensure by examination.").

38. For these reasons detailed abo ve, Respondent is not

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

E. Count Two

39. The Department further asserts, in Count Two of

the Amended Complaint, that Respondent is in violation of

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

fo r:

Failing to comply with the requirements for

profiling and credentialing, including, but

not limited to, failing to provide initial

information, failing to timely provide

updated information, or making misleading,

untrue, deceptive, or fraudulent

represe ntations 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 21 of the Amended

Complaint, the Department narrowed its theory of guil t to the

allegation that Respondent "submitt[ed] a fictitious Certificate

of Completion for two hours of Prevention of Medical Errors with

her Application." As noted previously, the Department further

limited its theory of prosecution by announcing, at th e outset

off the final hearing, that it was no longer pursuing any

allegation that Respondent was guilty of fraudulent behavi or "in

her personal capacity."

40. Nevertheless, the Department asserts that Respondent

is subject to discipline simply because he r application for

licensure was accompanied by the improvidently - issued

"Prevention of Medical Errors" Certificate of Completion. It

appears, in other words, that the Department seeks to punish

Respondent ÏÏ whom the Department no longer alleges is guilty o f

fraud ÏÏ for the misdeeds of FCNH's registrar, Ms. Johnson.

41. The Department's current theory suffers from a number

of problems, the first of which is that the Department failed to

plead it in the Amended Complaint. (The Amended Complaint,

which contai ns no mention of Ms. Johnson, alleges only that

Respondent was responsible for the submission of the document

in question.) Further, and in any event, 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 the 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 miscondu ct personal to the

licensee"); Dep't of Health, Bd. of Massage Therapy 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 decei ve the

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

connection with, her application. Therefore, Diamond is not

is

not guilty of Count Two.

F. Count Three

42. Finally, the D epartment charges Respondent under

section 480.046(1)(o), which subjects 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 Florida Board - approved massage

school" and has therefore violated 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 li censure as a massage therapist.

43. As an initial matter, the undersigned 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 min imum

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

un qualified, but being unqualified is not

the same as being a lawbreaker. Because

section 480.041(1) is not violable as that

term is ordinarily understood, the

undersigned is skeptical that any person can

be punished for "violating" section

480.041(1).

Dia mond , 2013 Fla. Div. Adm. Hear. LEXIS 204 at *30 - 31; 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 having "violated"

section 480.041(1)(b), the Departmen t has failed to prove, for

the reasons detailed below, that Respondent did not complete a

course of study at a Board - approved massage school.

44. At the time Respondent submitted her initial

application, Florida Administrative Code Rule 64B7 - 32.002

provid ed 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 tra nscript 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 passi ng

grades in all courses, and including dates

of attendance, and stating the date of

successful completion of the entire course

of study, is evidence of successful

completion. If the transcript does not

specifically state that the student

successfully com pleted 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).

45. 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 that the

Diploma constituted 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 March 2007: 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 t he Complaint, Respondent's

rights under that credential ÏÏ which include her licensure as a

massage th erapist ÏÏ should be terminated.

46. Persuaded by the reasoning expressed in Department of

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

2 013 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

Diamo nd :

[T]he questions which the Department 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

right s 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 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 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.

* * *

Diam ond'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,

whi ch did not confer the Diploma, is

powerless to revoke this academic credential.

Only FCNH has the authority to revoke the

Diploma, provided it does so in accordance

with due process of law, and it has not yet

taken such action, as far as the evidence in

t his 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 pro ceeding. 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

Departm ent and FCNH would have it. This is

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 issue d

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 Dipl oma.

2013 Fla. Div. Adm. Hear. LEXIS 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 pow er 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 th rough

its board of trustees is authorized to revoke a degree upon good

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

protect his interest).

47. 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 of Massage Therapy enter a

fin al order finding Respondent not guilty of the offenses

charged in the Complaint.

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

Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of August , 2013 .

ENDNOTE S

1/ See Final Hearin g Transcript, p. 9, lines 18 - 20; p. 13,

lines 12 - 15; see also Department's Proposed Recommended Order,

p. 8, ¶ 16 ("The Department has not pursued allegations of fraud

by Respondent in the submission of her application for

licensure.").

2 / Unless otherwi se noted, all statutory and rule refer ences 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 online at

http://app1.fl doe.org/cie/SearchSchools/detail.aspx?

schoolid=2217 (last visited August 1, 2013).

4 / See § 1005.32(5), Fla. Stat.

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

6 / Melissa Wade, one of FCNH's managerial employees, provided

the only testimo ny concerning the duties and authority of FCNH's

registrar. Ms. Wade explained, credibly, that the registrar

serves as the institution's "main point of contact" with

students and is authorized to "certify [] records and []

transcripts." See Petitioner's Exhibit 2, pp. 14 - 15. This

testimony, buttressed by the circumstances surrounding

Respondent's interaction with Ms. Johnson (and the fact that the

Department granted Respondent's application for licensure,

notwithstanding the absence of any signature othe r than the

registrar's on the FCNH certificates), supports a finding that

Ms. Johnson was authorized to generate and sign each of the FCNH

documents included with Respondent's application.

7 / See Final Hearing Transcript, p. 38, lines 19 - 23.

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

COPIES FURNISHED:

Lealand L. McCharen, Esquire

Cecilie D. Sykes, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

Qian Wen, Esquire

8117 Northwest 33rd Street

Do ral, Florida 33122

Bernard M. Cassidy, Esquire

Lubell and Rosen

200 South Andrews Avenue, Suite 900

Fort Lauderdale, Florida 33301

Anthony R. Jusevitch, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin C - 06

Ta llahassee, 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 wit hin

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.