13-000001PL Department Of Health, Board Of Massage Therapy vs. Wei Hao, L.M.T. Status: Closed Recommended Order on Tuesday, August 20, 2013.

Summary: Petitioner failed to prove that Respondent, using fraudulent misrepresentations, obtained a message therapy license due to an agency error, without having completed a course of study at an approved school.

Case No. 13-0001PL

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

RECOMMENDED ORDER

Petitioner,

vs.

WEI HAO, L.M.T.,

Respondent.

/

This case came before Administrative Law Judge John G. Van

Laningham for final hearing by video teleconference on July 5,

2013, at sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Candace A. Rochester, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: 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 ISSUES

The issues in this case are whether Respondent, a massage

therapist, obtained a license: (a) by means of fraudulent

misrepresentations; (b) which she knew had been issued in error;

and/or (c) without having completed a course of study at an

approved school, as Petitioner alleges. If so, it will be

necessary to determine an appropriate penalty.

PRELIMINARY STATEMENT

On October 8, 2012, Petitioner Department of Health

("Department") issued an Administrative Complaint ("Complaint")

against Respondent Wei Hao, L.M.T. ("Hao"). The Department

alleged, in three separate counts, that Hao had obtained her

license to practice massage therapy "through error of the

Department of Health"; "by submitting a fraudulent transcript

and fraudulent Certificates of Completion with her Application";

and "without completing a course of study at a Florida Board-

approved massage school." Hao timely requested a formal

hearing, and on January 2, 2013, the Department filed the

pleadings with the Division of Administrative Hearings, where an

Administrative Law Judge was assigned to preside in the matter.

The final hearing took place on July 5, 2013, as scheduled,

with both parties present. The Department presented the

deposition testimony of Melissa Wade, a managerial employee of

the company which owns and operates the Florida College of

Natural Health ("FCNH"), and called no other witnesses.

Petitioner's Exhibits 1 through 3 were received in evidence

without objection.

Hao testified on her own behalf. Respondent's Exhibits 1

and 3 through 6 were admitted into evidence without objection.

The final hearing Transcript was filed on July 17, 2013,

and proposed recommended orders were due on August 1, 2013. The

parties' respective submissions have been considered. 1/

FINDINGS OF FACT

1. The Department issued Hao license number MA 60237,

which authorized her to practice massage therapy in the state of

Florida.

2. The Department and the Board of Massage Therapy

("Board") have regulatory jurisdiction over licensed massage

therapists such as Hao. The Department provides investigative

services to the Board and is authorized to file and prosecute an

administrative complaint, as it has done this instance, when

cause exists to suspect that a licensee has committed a

disciplinable offense.

3. The Florida College of Natural Health ("FCNH") is an

incorporated nonpublic postsecondary educational entity. FCNH

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.

In addition to being duly licensed by the state, FCNH 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. 2/

4. 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 (Apr. 25, 2010), which provided in pertinent 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

Education.

5. 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 (2009), 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 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 disclosures 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 to state

licensure requirements for practicing related

occupations and professions in Florida;

(e) Ensure that all advertisements are

accurate and not misleading;

(f) Publish and follow an equitable prorated

refund policy for all students, and follow

both the federal refund guidelines for

students receiving federal financial

assistance and the minimum refund guidelines

set by commission rule;

(g) Follow the requirements of state and

federal laws that require annual reporting

with respect to crime statistics and physical

plant safety and make those reports available

to the public; and

(h) Publish and follow procedures for

handling student complaints, disciplinary

actions, and appeals.

(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 contacting the

Commission for Independent Education,

Department of Education, Tallahassee.

(emphasis added).

6. 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 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 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 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

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

credits will be accepted by another

institution of the student's choice. If a

licensed institution has entered into

written articulation agreements with other

institutions, a list of those other

institutions may be provided to students,

along with any conditions or limitations on

the amount or kinds of credit that will be

accepted. Such written agreements with

other institutions must be valid and in

effect at the time the information is

disclosed to the student. The agreements

shall be kept on file at all times and

available for inspection by Commission

representatives or students. Any change or

termination of the agreements shall be

disclosed promptly to all affected students.

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 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).

7. 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 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/ Further, 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

previously earned credits, to the extent specified, were

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

8. At all relevant times, FCNH's registrar was Glenda

Johnson. As registrar, Ms. Johnson had apparent authority, at a

minimum, to evaluate the transferability of credits, and she

possessed actual authority to generate and execute the Transfer

of Credit Form certifying to the Board that an applicant's

previously earned credits were acceptable to FCNH.

9. 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

from FCNH graduates whose transcripts seemed irregular. (Hao's

application was not among these; she had taken, and passed, a

national licensing examination in February 2010.) What these

applicants had in common was that they had earned their massage

therapy diplomas from Royal Irvin College in Monterey Park,

California, and they had fewer credit hours on their transcripts

than FCNH's typical students. The NCB sent copies of the

suspicious credentials to FCNH.

10. Ms. Wade reviewed the materials and detected purported

anomalies in them. She was unable 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 signed them.

Shortly thereafter, in December 2011, FCNH terminated

Ms. Johnson's employment.

11. Ms. Wade later notified the Board 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 fully cooperated. The

investigation uncovered some 200 graduates whose credentials

FCNH could not confirm. One of them was Hao.

12. Hao was born in China and at some point immigrated to

the United States. In 2007 Hao studied massage therapy at

Acupuncture and Massage Institute of America ("AMIA") in

Hacienda Heights, California. At AMIA, Hao successfully

completed a 750-hour curriculum in massage therapy, graduating

on December 18, 2007.

13. Thereafter, Hao relocated to Florida intending to work

as a massage therapist. Before she could begin working,

however, Hao needed to obtain a Florida license. Because AMIA

was not a Board-approved massage school, Hao needed to complete

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either a course of study at an approved school or,

alternatively, an apprenticeship program.

14. In June 2010, Hao went to the Pompano campus of FCNH,

where she met with Ms. Johnson. Hao decided to enroll in FCNH,

and Ms. Johnson prepared the necessary documents. Hao gave

Ms. Johnson copies of her educational credentials from AMIA. In

her capacity as registrar, Ms. Johnson completed a Transfer of

Credit Form, and FCNH's internal Calculation Form for a Graduate

From Another Massage Therapy School.

15. Ms. Johnson took Hao's FCNH enrollment forms and

collected $400.00 in cash as the fee for handling the transfer

of Hao's credits and her registration as a student of FCNH.

16. Having collected the money, Ms. Johnson furnished

Respondent with several items, including an FCNH document titled

"Certificate of Completion — 15 Hours of Therapeutic Massage

Training Program (Transfer of Licensure)" that bore

Ms. Johnson's signature and the school's seal; an FCNH document

titled "Certificate of Completion — 2 Hours of Prevention of

Medical Errors," which bore FCNH's seal, as well as

Ms. Johnson's signature; the Transfer of Credit Form signed by

Ms. Johnson, which indicates that FCNH accepted Hao's credits

from AMIA; and an FCNH transcript (signed by Ms. Johnson and

bearing the school's seal) showing that Hao had completed a 500-

1 1

hour program titled "Therapeutic Massage Training Program

(Transfer of Licensure)."

17. 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. The several documents

comprising Hao's FCNH diploma will be referred to hereafter,

collectively, as the "Diploma."

18. Ms. Johnson produced a Department of Health

application for a massage therapy license and helped Hao fill it

out. Hao then signed the three-page application, which is dated

June 17, 2010.

19. The application which Hao executed states, truthfully,

that she obtained a massage therapy certificate in December of

2007 from AMIA and that the school is not Board approved. The

application states, correctly, that Hao completed 750 hours of

study at AMIA. The evidence does not establish that Hao

knowingly made a false statement of material fact in the

application or otherwise intended to perpetrate a fraud on the

Department.

1 2

20. Ms. Johnson forwarded Hao's application and supporting

documents to the Department, and soon afterward the Department

issued Hao a license to practice as a massage therapist.

21. The evidence fails to support a finding that Hao

misrepresented her educational attainments when she met with

Ms. Johnson. The evidence, moreover, does not support a finding

that Hao knew or should have known that Ms. Johnson's evaluation

of her credits was anything but routine and in accordance with

FCNH's academic policies. The evidence does not support a

finding that Hao knew or should have known that FCNH, as the

transferee school accepting her AMIA courses, would award her

academic credit or credentials which she had not legitimately

earned.

22. Hao was not shown to have had any prior familiarity

with FCNH forms and documents; its recordkeeping practices; or

its internal policies regarding the registration and enrollment

of students, the evaluation of transcripts for the purpose of

transfer of credits, or the issuance of certificates and other

educational credentials. Hao was not shown to have had any

reason to suspect that the FCNH Enrollment Agreement she signed

would not be properly entered into the school's records, or to

believe that the FCNH transcript issued for her benefit

purported to award her any credits other than those she

rightfully had earned.

1 3

23. To sum up Hao's transaction with FCNH, she went to the

Board-approved, state-licensed massage school in June 2010,

where she met with the registrar, Ms. Johnson, a member of the

school's administration who she had no reason to believe would

deceive her. It was reasonable under the circumstances for Hao

to rely upon Ms. Johnson, and she was entitled under the law to

receive accurate information from the registrar regarding, among

other things, the transferability of credits to FCNH, and the

relationship between FCNH's academic program and the state's

licensure requirements for massage therapists.

24. Further, Ms. Johnson, who at all times was acting

within the course and scope of her employment as the school's

registrar, had actual authority to prepare and certify

educational credentials on behalf of FCNH. The evidence does

not establish that Hao was or should have been aware of any

limitations on Ms. Johnson's authority, nor does the evidence

show that Hao gave Ms. Johnson false information. From Hao's

perspective, Ms. Johnson had apparent authority, at least, to

accept Hao's credits from AMIA and to prepare, execute, and

issue such transcripts and certificates as would be appropriate

to the situation.

25. Hao has not surrendered her Diploma or otherwise

acceded to the allegation that the credentials FCNH conferred

upon her are invalid. FCNH has not initiated a legal proceeding

1 4

to revoke or withdraw Hao's Diploma. At present, therefore,

there is no legally binding or enforceable determination that

the Diploma is void or that Hao is without rights and privileges

thereunder.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

sections 120.569 and 120.57(1), Florida Statutes.

27. A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature.

State ex rel. Vining v. Fla. Real Estate Comm'n , 281 So. 2d 487,

491 (Fla. 1973). Accordingly, to impose discipline, the

Department must prove the charges against Hao by clear and

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

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933-34

(Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292, 294-95

(Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Regulation, Bd. of

Medicine , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

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

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

1 5

clear 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. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev. denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

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 (Fla. 1st DCA 1992); see 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

1 6

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.");

see also , e.g. , Griffis v. Fish & Wildlife Conserv. Comm'n , 57

So. 3d 929 (Fla. 1st DCA 2011)(statutes imposing a penalty must

never be extended by construction).

30. Due process prohibits an agency from taking

disciplinary action against a licensee based on matters

not specifically alleged in the charging instrument. See

§ 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 . . . ."); see also 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."); Marcelin v. Dep't of Bus. & Prof'l Reg. , 753

So. 2d 745, 746-747 (Fla. 3d DCA 2000); 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 violated.").

1 7

31. In Count I of the Complaint, the Department charged

Hao under section 456.072(1)(h), Florida Statutes (2009), which

states that the act of "obtaining . . . a license . . . by

bribery, by fraudulent misrepresentation, or through an error of

the department" constitutes grounds for discipline. The

Department alleged that Hao committed a disciplinable offense

"by obtaining 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 Completion with her Application."

32. The Department takes the position that Hao's license

can be revoked based on the Department's unilateral mistake,

even if Hao did not personally commit a culpable act. This

argument is rejected.

33. To begin, the Department's "unilateral error" theory

is inconsistent with the general procedure for licensing as set

forth in section 120.60, which provides in pertinent part as

follows:

(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 agency

shall not deny a license for failure to

correct an error or omission or to supply

additional information unless the agency

1 8

timely notified the applicant within this

30-day period.

Given that the law unambiguously prohibits an agency from

"deny[ing] a license for failure to correct an error or omission

or to supply additional information unless the agency timely

notified the applicant" of the particular deficiency within

30 days after receiving the application, to allow the agency

later to revoke a license pursuant to section 456.072(1)(h)

based solely on a purported deficiency or "red flag" 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 integrity of licenses in general.

34. Further, section 456.072(1) clearly does require a

culpable "act" on the part of the licensee as a condition for

imposing discipline. Id. ("The following acts shall constitute

grounds for" discipline) (emphasis added). The disciplinable

acts specified in section 456.072(1)(h) are the use of a bribe,

fraudulent misrepresentation, or "error of the department" to

obtain a license. Because a unilateral agency error does not

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

cannot constitute a basis for discipline. For a disciplinable

act to occur, the applicant must somehow use or take advantage

of an agency error to obtain her license.

1 9

35. To take advantage of an agency error, the applicant

must know about it. Thus, to commit the disciplinable act of

obtaining a license through an error of the agency, the

applicant must knowingly use the agency's error to her

advantage. Properly understood, then, section 456.072(1)(h)

imposes an affirmative duty on an applicant to inform the

licensing agency if she learns that the agency is about to

issue, or has issued, her a license in error.

36. Finally, Hao's application was supported by 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 also bearing the official signature

of the school's registrar. These documents constituted evidence

of Hao's successful completion of an approved course of study.

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

Department's recognition of Hao as a graduate of a Board-

approved massage school would have been a mistake only if Hao

did not possess the legally cognizable rights and privileges

appertaining to her FCNH Diploma, but she did——and does.

37. The Department failed to prove that Hao knowingly took

advantage of an agency error in obtaining her license, or even

that the Department made a mistake. Therefore, Hao is not

subject to discipline on the basis of agency error.

2 0

38. Regarding the allegation that Hao obtained her license

by submitting fraudulent credentials, it is useful to recall

that, in the context of a civil suit, the essential elements of

a fraud claim are: (1) a false statement concerning a material

fact, including a nondisclosure when under a duty to disclose;

(2) made with knowledge that the representation (or omission) is

false and with the intention of inducing another's reliance

thereon; and (3) consequent injury to the other party acting in

reliance on the false representation. See, e.g. , Cohen v.

Kravit Estate Buyers, Inc. , 843 So. 2d 989, 991 (Fla. 4th DCA

2003). In an administrative proceeding such as this, where an

applicant is alleged to have used fraudulent means in an attempt

to obtain a license, it is not necessary for the agency to prove

actual injury, but the rest of the common law definition of

fraudulent conduct is relevant and applicable in evaluating the

charge.

39. "[F]raudulent intent usually must be proved by

circumstantial evidence and such circumstances may, by their

number and joint consideration, be sufficient to constitute

proof." Nally v. Olsson , 134 So. 2d 265, 267 (Fla. 2d DCA

1961). Therefore, as proof of fraud, "one may show 'a series of

distinct acts, each of which may be a badge of fraud and when

taken together as a whole, constitute fraud.'" Dep't of Rev. v.

Rudd , 545 So. 2d 369, 372 (Fla. 1st DCA 1989)(quoting Allen v.

2 1

Tatham , 56 So. 2d 337, 339 (Fla. 1952)). Further, "[s]cienter,

or guilty knowledge, [which] is an element of intentional

misconduct [such as fraud], . . . can be established by showing

actual knowledge, or that the defendant was reckless or careless

as to the truth of the matter asserted." Ocean Bank of Miami v.

INV-UNI Inv. Corp. , 599 So. 2d 694, 697 (Fla. 3d DCA 1992).

40. In this case, the Department failed to prove that Hao

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

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

her application. Therefore, Hao is not guilty of obtaining a

license by fraudulent misrepresentation.

41. In Count II of the Complaint, the Department charged

Hao under section 456.072(1)(w), Florida Statutes (2009), which

states that the act of "making misleading, untrue, deceptive, or

fraudulent representations on a[n] . . . initial

. . . licensure application" constitutes grounds for discipline.

The Department alleged that Hao committed a disciplinable

offense "by submitting a fraudulent transcript and fraudulent

Certificates of Completion with her Application."

42. The Department asserts that the credentials which FCNH

issued to Hao are "inauthentic, illegitimate, and, therefore,

fraudulent," despite the fact that the school's own registrar

issued the documents in her official capacity, and despite the

fact that, to anyone unfamiliar with FCNH's internal policies

2 2

and practices, such as Hao, the credentials are facially regular

in appearance. The Department's position assumes that

fraudulence is some sort of intrinsic quality of the documents

for which Hao is culpable, regardless of whether she personally

engaged in fraudulent conduct. The undersigned rejects the idea

that a licensee can be disciplined merely for having reasonably

relied upon an allegedly "fraudulent" document obtained in good

faith by the licensee under circumstances demonstrating that the

licensee considered the document to be what it purports to be.

The Department failed to prove that Hao knowingly, and with the

intent to deceive the Department, made any false statement of

material fact in, or in connection with, her application.

Therefore, Hao is not guilty of making fraudulent

representations in her application.

43. In Count III of the Complaint, the Department charged

Hao under section 480.046(1)(o), Florida Statutes (2009), which

subjects a licensee to discipline for the act of violating any

provision of chapter 480 or chapter 456. The Department alleged

that because Hao has failed to "complete a course of study at a

Florida Board-approved massage school," she has "violated" a

provision of chapter 480, 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.

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44. As a preliminary matter, the undersigned notes that

section 480.041(1) does 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 lawbreaker. Because

section 480.041(1) is not violable as that term is ordinarily

understood, it is questionable whether any person can be

punished for "violating" section 480.041(1).

45. Assuming for argument's sake, however, that a licensee

can be disciplined for having "violated" section 480.041(1)(b),

the Department failed to prove that Hao did not complete a

course of study at a Board-approved massage school, for the

reasons set forth below.

46. At the time Hao submitted her initial application,

Florida Administrative Code Rule 64B7-32.002 (Feb. 21, 1996)

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

2 4

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 completion 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 completion

indicating the dates of attendance and

completion.

47. Hao's application included a Diploma issued by FCNH, a

Board-approved massage school. After reviewing Hao's

application, the Department determined that the Diploma sufficed

to prove Hao's successful completion of a course of study in

massage meeting the minimum standards. The Diploma never

changed; it continues to be exactly what it was in June of 2010:

evidence of successful completion of a course of study at a

Board-approved massage school. 5/ To get around this reality, the

Department argues that the Diploma is "fraudulent" and that Hao

did not take the courses required for completion of an approved

course of study in massage therapy. Although the Department

argues that it is "not asking for the recission of [Hao's]

credentials," in effect it is seeking such relief. To deem Hao

unqualified for having failed to complete an approved course of

study, the Department urges that Hao's rights under the FCNH

Diploma be ignored, if not extinguished, and it believes such

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rights should be disregarded owing to Hao's alleged

deceitfulness.

48. If Hao had knowingly deceived the Department, e.g., by

making a fraudulent misrepresentation in her application, then

Hao would be subject to discipline for such misconduct, which of

itself is a sufficient basis——independent of any educational

credential——for taking punitive measures. As discussed above,

however, the Department failed to prove that Hao made fraudulent

misrepresentations to the Department. Consequently, there was

no fraud in the transaction between Hao and the Department.

49. Asserting that Hao did not take courses at FCNH, which

she should have known were required for licensure, the

Department tacitly contends that Hao fraudulently obtained her

FCNH Diploma. There are multiple problems with the Department's

theory. First, as a duly licensed postsecondary institution,

FCNH (a) had the discretion to accept or decline to accept Hao's

AMIA credits and (b) had the duty to disclose to Hao all

relevant information regarding transferability of credits. See

§ 1005.04, Fla. Stat. (2009); Fla. Admin. Code R. 6E-

1.0032(6)(f). As FCNH's registrar, Ms. Johnson performed a

seemingly legitimate evaluation of Hao's credentials and

accepted Hao's AMIA credits, applying them toward the award of

an FCNH credential.

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50. Hao's reliance on Ms. Johnson's decision regarding the

transferability of credits was reasonable under the

circumstances; believing, as she was told, that her out-of-state

credits were acceptable to FCNH in lieu of taking additional

courses, Hao had no reason to be concerned about not attending

additional classes at FCNH. 6/

51. Second, Hao was entitled to receive accurate

information from FCNH regarding the relationship of the school's

massage therapy program to state licensure requirements. See

§ 1005.04(1)(d), Fla. Stat. Hao's reliance on Ms. Johnson to

inform her as to the qualifications necessary for licensure as a

Florida massage therapist was therefore reasonable under the

circumstances. The Department failed to prove that Hao did not

reasonably believe that the courses she had completed at AMIA,

which FCNH accepted toward the award of its credentials, were

all that she needed in order to complete the program at FCNH.

52. Finally, the questions which the Department has raised

implicating the Diploma's validity, namely whether FCNH should

have issued Hao a Diploma and whether the Diploma is operative

as a legal instrument under which Hao 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

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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.

53. As the Supreme Court of Ohio explained:

We consider it self-evident that a college

or university acting through its board of

trustees does have the inherent authority to

revoke an improperly awarded degree where

(1) good cause such as fraud, deceit, or

error is shown, and (2) the degree-holder is

afforded a fair hearing at which he can

present evidence and protect his interest.

Academic degrees are a university's

certification to the world at large of the

recipient's educational achievement and

fulfillment of the institution's standards.

To hold that a university may never withdraw

a degree, effectively requires the

university to continue making a false

certification to the public at large of the

accomplishment of persons who in fact lack

the very qualifications that are certified.

Such a holding would undermine public

confidence in the integrity of degrees, call

academic standards into question, and harm

those who rely on the certification which

the degree represents.

Waliga v. Board of Trustees , 488 N.E.2d 850, 852 (Ohio 1986).

The authority to revoke degrees for cause, in short, is a

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"necessary corollary" to the power to confer degrees, Hand v.

Matchett , 957 F.2d 791, 794-95 (10th Cir. 1992)——necessary

because "upon the grant of a degree, the university certifies to

the world that the recipient has fulfilled the university's

requirements, and this certification continues until the degree

is revoked." Crook v. Baker , 813 F.2d 88, 93 (6th Cir. 1987).

54. As the court made clear in Waliga , however, the

issuing institution cannot revoke a degree——in which the holder

possesses a property right——except according to constitutionally

adequate procedures providing due process. 488 N.E.2d at 853.

This does not mean that the school necessarily must go to court

to revoke a degree previously conferred. See Crook , 813 F.2d at

94. An administrative proceeding——to which the issuing

institution and the degree holder are parties——may suffice. See

Faulkner v. Univ. of Tenn. , 1994 Tenn. App. LEXIS 651 (Tenn. Ct.

App. Nov. 16, 1994). But it does mean that the former student

must be afforded adequate notice, a fair opportunity to be

heard, and an impartial forum. As one judge observed:

Educational institutions are uniquely

situated to make determinations regarding

academic qualifications or the lack thereof.

Establishing degree requirements and

granting degrees are within the province of

universities, not courts; so the rescission

of degrees of former students is within the

province of universities, not courts.

Courts, when their jurisdiction is

quickened, must assure that degrees are not

rescinded by universities until the former

2 9

student has had all of the process due him——

adequate notice, a fair opportunity to

defend, and an impartial forum.

Faulkner v. The Univ. of Tenn. , 627 So. 2d 362, 367 (Ala.

1992)(Houston, J., dissenting). 7/

55. Hao'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 Hao 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.

56. FCNH has persuaded the Department that the Diploma is

invalid. But the Department, which 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 this case shows. In arguing

that Hao 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.

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

continues to certify that Hao completed a course of study in

massage therapy at a Board-approved school.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Massage Therapy enter a

final order finding Hao not guilty of the offenses charged in

the Complaint.

DONE AND ENTERED this 20th day of August, 2013, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of August, 2013.

ENDNOTES

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

to current versions.

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2/ Section 480.033(9) provides:

"Board-approved massage school" means a

facility which meets minimum standards for

training and curriculum as determined by

rule of the board and which is licensed by

the Department of Education pursuant to

chapter 1005 or the equivalent licensing

authority of another state or is within the

public school system of this state.

3/ See § 1005.32(5), Fla. Stat.

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

5/ If the Department believed that Hao's official transcript

from FCNH and the other certificates comprising her Diploma

failed to conform to the requirements of rule 64B7-32.002, then

it should have denied her application on that basis, which would

have given Hao the right, in 2010, to request a hearing to

determine the sufficiency of the Diploma. In any event, it

should be noted that the Department is not asserting in this

case that Hao's FCNH Diploma is insufficient evidence of

successful completion of an approved course of study pursuant to

rule 64B7-32.002; the Department argues instead that the Diploma

was fraudulently obtained and thus is a nullity, which is a

different theory.

6/ If the Board determines that FCNH failed to comply with the

standards for transfer of credit set forth in rule 64B7-32.004,

then the Board can withdraw its approval of FCNH pursuant to

rule 64B7-32.003(3). In addition, or alternatively, if so

inclined, the Department or the Board may make a complaint about

FCNH to the CIE, which is authorized to investigate suspected

misconduct on the part of licensed nonpublic postsecondary

schools, and to impose discipline on violators. See § 1005.38,

Fla. Stat. The Department has not alleged, in any event, that

Hao should be disciplined because the transfer standards were

not met.

7/ The dissenting justice concluded, contrary to the court's

majority, that the plaintiff had failed to exhaust his

administrative remedies. The entire court agreed, however, that

the plaintiff's degree could not be revoked except through a

proceeding affording him due process of law.

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COPIES FURNISHED :

Candace A. Rochester, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

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

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 filed with the agency that

will issue the Final Order in this case.

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