13-000502PL Department Of Health, Board Of Massage Therapy vs. Jinchun Cui, L.M.T. Status: Closed Recommended Order on Monday, September 9, 2013.

Summary: Petitioner failed to prove Respondent obtained her license by fraud. Recommend dismissal of Amended Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF MASSAGE THERAPY ,

Petitioner ,

vs. Case No. 13 - 0502PL

JINCHUN CUI, L.M.T. ,

Respondent .

/

RECOMMENDED ORDER

On June 19, 2013, pursuant to notice, a hearing was

conducted in Tallahassee, Florida before Administrative Law Judge

Lisa Shearer Nelson of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Louise St. Laurent, Esquire

R. Shaffer Claridge, Esquire

Jennifer Friedberg - Fortenberry, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, F lorida 32399 - 3265

For Respondent: Lance O. Leider, Esquire

George F. Indest, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

sections 456.072(1)(h), 456.072(1)(w), and 480.041(1)(b), Florida

Statutes (2010), as alleged in the Amended Administrative

Complaint and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On October 9, 2012, Petitioner, Department of Health, filed

an Administrative Complaint against Respondent, Jinchun Cui,

L.M.T., alleging violations of chapters 456 and 480, Florida

Statutes. On November 13, 2013, Respondent filed a Motion for

Formal Hear ing and on February 11, 2013, the case was referred to

the Division of Administrative Hearings for the assignment of an

administrative law judge .

The case was originally scheduled for May 1, 2013. In

response to RespondentÓs unopposed Motion for Continuan ce, the

case was rescheduled for June 19 , 2013, and proceeded as

scheduled. On June 12, 2013, Petitioner filed a Motion to Amend

the Administrative Complaint, which was granted by Order dated

June 17, 2013. The parties filed a Joint Prehearing Stipulatio n

that included certain stipulated facts which, where relevant,

have been included in the Findings of Fact below.

At hearing, Petitioner presented the testimony of Anthony

Jusevitch, Executive Director of the Board of Massage Therapy,

and of Jinchun Cui. PetitionerÓs Exhibits 1 and 4 were admitted

into evidence. Respondent testified on her own behalf and

presented the testimony of Melissa Wade, and RespondentÓs

Exhibits 1 - 11 were admitted into evidence. Official recognition

was also taken of recommended orders issued by other

administrative law judges, as well as several administrative

rules and other materials listed in the Motion for Official

Recognition dated June 17, 2013.

The Transcript of the hearing was filed with the Division on

July 11, 2013. RespondentÓs Unopposed Motion to Extend the Time

to File Proposed Recommended Orders was granted and the time for

filing post - hearing submissions was extended to July 29, 2013.

Both parties timely filed their Proposed Recommended Orders,

which have been c arefully considered in the preparation of this

Recommended Order.

FINDING S OF FACT

1. Petitioner is the state agency charged with regulating

the practice of massage therapy pursuant to section 20.43 and

chapters 456 and 480, Florida Statutes (2013).

2. A t all times relevant to the Amended Administrative

Complaint, Respondent has been a licensed massage therapist in

the State of Florida, having been issued license number MA 63711.

3. Respondent is a native of China, and immigrated to the

United States in approximately 2007. She speaks limited English.

4. Respondent wanted to become a massage therapist. To

that end, Respondent attended the massage therapy training

program offered at Healing Hands Institute for Massage Therapy

(Healing Hands) and complete d her training program on or about

October 17, 2010. The program at Healing Hands consisted of a

600 - hour curriculum.

5. At all times relevant to the allegations in the Amended

Administrative Complaint, Healing Hands was a school accredited

by the Commis sion on Massage Therapy Accreditation (COMPTA) and

approved by the New Jersey Board of Massage Therapy. It wa s not,

however, a Florida board - approved school for purposes of

obtaining licensure in Florida. After RespondentÓs attendance at

Healing Hands, t he school closed in good standing with COMPTA.

6. Healing Hands had campuses in Flushing, New York , as

well as in New Jersey. Respondent completed most of her course

work at the Flushing campus because there were people there who

spoke Chinese, making it easier for her to understand the

curriculum.

7. While still a student at Healing Hands, Respondent took

and passed the National Certification Examination for Therapeutic

Massage and Bodywork. She received notification that she had

passed the examination by letter dated June 8, 2010. It is

unclear from the letter whether it is actually dated June 8,

2 010, or is referring to an examination given that date. In any

event, after receiving notice that she had passed the necessary

examination, Respondent applied for and received a license to

practice massage therapy in the State of New Jersey. Her

original license was issued February 24, 2011, and her current

license in New J ersey is valid through November 30, 2014.

8. Respondent received assistance in filling out the

paperwork related to her New Jersey application from a friend

named ÐMikeÑ who is a lawy er. Mike did not charge her for his

assistance. According to Respondent, Mike completed the

application forms for her and she reviewed them and signed them.

9. There are no allegations in the Amended Administrative

Complaint to indicate that her educat ional program at Healing

Hands was not legitimate; that she did not take and pass the

National examination; or that any actions taken to o btain her New

Jersey license were fraudulent. Respondent was not required to

provide any additional coursework or cer tifications beyond her

Healing Hands transcript and proof of passing her national

certification exam in order to obtain her New Jersey license.

10 . Respondent wished to move to Florida because she had

heard that there are good jobs in massage therapy here . She knew

that she would have to obtain a Florida license in order to work

in Florida.

1 1 . To that end, she sought assistan ce from a person at

Healing Hands that she identified as ÐSean.Ñ Although she

referred to Sean as one of her instructors who taught the

majority of her courses, there is no instructor listed on her

transcript whose first name is identified as Sean. Although

there is no direct evidence other than RespondentÓs testimon y

regarding Sean, it seems more likely that, rather than being an

instructor, Sean was an interpreter for the students who spoke

Chinese.

1 2 . Respondent asked Sean to assist her with the process

for getting a Florida license because other students had tol d her

he had assisted them in obtaining licenses from other states.

She paid Sean $1,000.00 to cover the cost of applying for her

Florida license. Some of the money was paid in cash, and some

was in the form of a money order. Respondent could not rememb er

how much of the total was in money order form.

1 3 . The application fee and initial license fee are

significantly less than $1,000 .

1 4 . Respondent received her license to practice massage

therapy in Florida on June 5, 2011. However, what actually

happ ened between the time she asked Sean for help and when she

got her license is unclear at best.

1 5 . On or about March 17, 2011 , RespondentÓs State of

Florida application for licensure as a massage therapist was

submitted to the Florida Department of Health, Board of Massage

Therapy. The application was submitted electronically, and does

not include RespondentÓs signature. Respondent testified that

she never filled out the application and never saw it before it

was submitted to the Department of Heal th. While it is clear

that Respondent did not personally submit the application, it is

not clear who did. There is no competent evidence to demonstrate

who completed the application and submitted it to the Board

office.

1 6 . RespondentÓs application indi cated that she did not

attend an apprenticeship program. It also indicates that, at the

time of the application, she has never held a li cense or

certificate, regardless of status, to practice any licensed

profession; that she has not completed a 10 - hour F lorida laws and

rules course; that she has not completed a two - hour course in the

prevention of medical errors; and that she has not completed a

three - hour HIV/AIDS course.

1 7 . On or about May 9, 2011, a transcript from the Florida

College of Natural Health (FCNH) was submitted t o the Department

of Health in support of RespondentÓs application. Also submitted

were a Transfer of Credit Form and FCNH Certificate s of

Completion for 12 hours of Therapeutic Massage Training Program

and two hours of Prevention of Medical Errors . Also submitted

that day were a transcript from Healing Hands and a copy of the

Official Candidate Score Report for the National Certification

Examination for Therapeutic Massage and Bodywork, indicating that

Respondent had ac hieved a passing grade .

1 8 . FCNH is an incorporated , nonpublic , post - secondary

educational entity which holds a license issued by the Florida

Commission for Independent Education, which regulates nonpublic

post - secondary institutions pursuant to section 1 005.32, Florida

Statutes . FCNH is also accredited by the Accrediting Commission

of approved schools and Colleges and by the Commission on Massage

Therapy. F CNH is a board - approved massage school as that term is

defined in section 480.033.

1 9 . In order t o be a board - approved massage school, a

school is required to offer a course of study that includes, at a

minimum, 500 class hours, and is also required to supply to the

Board as part of its application a sample transcript and diploma;

a copy of curriculum , catalog or other course descriptions;

faculty credentials; and proof of licensure by the Department of

Education. Fla. Admin. Code Rule 64B7 - 32.003.

20 . As a licensed, accredited, and board - approved massage

school, FCNH was and continues to be authoriz ed to evaluate the

transferability of credits from another institution to FCNH,

including schools that are not board - approved. Any transferred

credits could then be applied by FCNH toward the award of a

diploma from FCNH, provided that FCNH adhered to the standards in

rule 64B7 - 32.004, and completed, signed, and attached to the

schoolÓs transcript, the BoardÓs Transfer of Credit form,

certifying the extent to which a studentÓs previously - earned

credits were acceptable for transfer to FCNH.

2 1 . While the minimum number of class hours for licensure

is 500 hours, the program at FCNH consists of 768 hours.

2 2 . At all times relevant to the allegations in the Amended

Administrative Complaint, Glenda Johnson was FCNHÓs registrar.

Ms. Johnson had been employed by FCNH since 1996, and had the

apparent authority to evaluate the transferability of credits

from other educational institutions to FCNH, and to execute a

Transfer of Credit Form certifying to the Board that a studentÓs

credits earned at another instituti on would be acceptable to

FCNH.

2 3 . The Transfer of Credit form stated that FCNH had

evaluat ed RespondentÓs transcript from Healing Hands and that the

evaluation was conducted on April 18, 2011 . The form indicated

that Respondent needed ten hours of Flor ida laws and rules and

two hours of medical errors instruction in order to qualify for

licensure. The form, which was signed by Glenda Johnson as

Registrar of FCNH, accepted a total of 488 hours from Healing

Hands, including three hours for HIV/AIDS educa tion.

2 4 . The FCNH transcript, signed by Glenda Johnson as

registrar of FCNH, indicated completion of 500 program hours,

including three hours for HIV/AID education as of April 22, 2011 .

It indicate s completion of coursework regarding prevention of

medic al errors or Florida laws and rules.

2 5 . Like the transcript and the Transfer of Credit form,

the certificates of completion for Therapeutic Massage Training

Program (Transfer of Licensure) and for Prevention of Medical

Errors were signed by Glenda Johnso n.

2 6 . RespondentÓs transcript from Healing Hands was also

submitted with the documents received by the Board office on

May 9, 2011. The transcript indicates that Respondent completed

a 600 - hour program at Healing Hands, including three hours for

HIV/AIDS awareness.

2 7 . It appears that the documents submitted on May 9, 2011,

were most likely submitted to the Board office by Glenda Johnson,

as many of them are signed by her and appear to be documents from

FCNH, where she worked. As registrar of th e school, Ms. Johnson

had the apparent authority to evaluate RespondentÓs hours at

Healing Hands for transfer, and that evaluation can be performed

electronically. In other words, a student did not have to visit

a FCNH campus in order for his or her prior credits to be

evaluated for transfer.

28. N either Ms. Johnson nor Sean testified at hearing.

Respondent testified that she never met Ms. Johnson and never set

foot on any of FCNHÓs campuses. While it was assumed at hearing

that Sean conspired with Ms. Johnson to create false documents in

order for Respondent to obtain a Florida license, there was no

competent evidence from which such a finding can be made. There

is no evidence from which it can be determined whether Sean was

complicit in fraud or bein g duped by Ms. Johnson. The only

finding that can be made based on the evidence presented is that

someone submitted, on RespondentÓs behalf, documents that

indicate that sufficient credits were transferred from Healing

Hands to FCNH, a board - approved scho ol; completion of all

required course s ; successful completion of the national

examination; and that those documents on their face were

sufficient to demonstrate Respondent met the requirements for

licensure.

2 9 . Melissa Wade is a managerial employee of FC NH. At some

point after Respondent received her license, Ms. Wade received a

telephone call from someone from the National Certification Board

for Therapeutic Massage and Bodywork (NCB) to report that NCB had

received several applications to sit for the n ationa l

certification examination from purported FCNH graduates whose

transcripts seemed irregular. Respondent was not among those

individuals identified as having suspicious credentials, as she

had taken the examination prior to any purported contact wit h

FCNH.

30 . Ms. Wade reviewed the credentials for those applicants

identified by NCB, and found several things in the documents that

she considered to be suspicious. While these irregularities may

have been red flags for Ms. Wade and those who routinely review

transcripts, it is not clear that these irregularities would be

apparent to a casual observer. However, the students for whom

the transcripts and Transfer Forms were prepared were not found

in FCNHÓs records as actually being students of the school .

Ms. Wade confronted Ms. Johnson regarding the irregular

transcripts and certificates. Ms. Johnson was terminated by FCNH

in December 2011.

3 1 . Ms. Wade notified the Board of Massage that some people

who had applied for licensure as graduates of FCNH m ight not have

met the requirements for graduation. The Department initiated an

investigation, with which FCNH cooperated. This investigation

uncovered approximately 200 graduates, including Respondent,

whose credentials FCNH could not confirm. Although Ms. Wade

reviewed RespondentÓs documents that comprise RespondentÓs

application for licensure and testified that Ms. Johnson did not

have the authority to evaluate the hours from Healing Hands for

transfer to FCNH, she did not testif y that the courses which were

purportedly accepted for transfer would in fact be unacceptable.

3 2 . Anthony Jusevitch, Executive Director for the Board of

Massage Therapy, testified that typically it is the school, as

opposed to the applicant, that submits transcripts and

c ertificates regarding completion of curriculum requirements.

There was no credible, competent evidence to indicate exactly who

decided to create the documents submitted to the Board of Massage

on RespondentÓs behalf, or that Respondent knew of or authoriz ed

their creation. What is clear, however, is that Respondent did

not know of their creation or their submission to the Board

office.

3 3 . Once Respondent was notified of the alleged deficiency

in her credentials for her Florida license, she took two home -

study course s through Life Education of Florida on the subjects

of Medical Errors and HIV/AIDS, for two and three hours,

respectively. She also took a Florida Laws and Rules course for

10 hours through Advanced Massage TechniquesÓ online program.

3 4 . The use of continuing education courses is valid for

obtaining initial licensure.

3 5 . Respondent currently meets all of the requirements for

licensure in the State of Florida. She continues to live in New

Jersey.

3 6 . It was not proven by clear and convincing evidence that

the Respondent had any intent to defraud the Department or the

Board. However, at the time her licensure application was

processed by the Board staff, Respondent did not meet the

requirements for licensure because she had not take n the required

prevention of medical errors and Florida Laws and Rules courses.

CONCLUSIONS OF LAW

3 7 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this case

pursuant to sections 120.569 and 120.57(1) , Florida Statutes

(2013).

3 8 . This is a proceeding in which the Department seeks to

take disciplinary action against RespondentÓs license to practice

massage therapy. Accordingly, the Department is required to

prove the allegations in the Amended Administrative Complaint by

clear and convincing evidence . DepÓt of Banking and Fin. v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

3 9 . The Supreme Court of Florida has stated:

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 lacking in confusion as

to the facts at issue. The evidence must be

of such a weig ht that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v.

Walker , 429 So. 2d 797, 80 0 (Fla. 4 th DCA 1983)). This burden of

proof may be met where the evidence is in conflict, but Ðseems to

preclude evidence that is ambiguous.Ñ Westinghouse Elec. Corp. v.

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

40 . Moreover, Respondent can be disciplined only for matters

alleged in the Amended Administrative Complaint. Trevisani v.

DepÓt of Health , 908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v.

DepÓt of Health , 714 So. 2d 1113 (Fla. 1 st DCA 1998); Willner v.

Dep Ó t of Prof. Reg . , 563 So. 2d 805 (Fla. 1st DCA 1990).

41 . The Amended Administrative Complaint contains the

following factual allegations upon which the charges against

Respondent are based:

4. On or about March 17, 2011, Respondent,

or her agent on RespondentÓs behal f,

submitted a State of Florida Application for

Licensure as a massage therapist

(ÐApplicationÑ) to the Florida Department of

Health Board of Massage Therapy (ÐFlorida

Board.Ñ).

5. RespondentÓs Application further reveals

that Respondent did not attend a n

apprenticeship program.

6. Pursuant to Section 480.041(1)(b), in

order to qualify for licensure as a massage

therapist in the State of Florida pursuant

to Chapter 480, Florida Statutes, a person

must complete a course of study at a board -

approved mas sage school or complete an

apprenticeship program that meets the

standards adopted by the board.

7. Submitted to the Florida Board with

RespondentÓs Application was a transcript

from Florida College of Natural Health

(ÐFCNHÑ).

8. The FCNH transcript represents that

Respondent earned five hundred credit hours

in the FCNH Therapeutic Massage Training

Program (Transfer of Licensure).

9. The FCNH transcript represents that

Respondent started the FCNH Therapeutic

Massage Training Program (Transfer of

Lic ensure) on April 21, 2011, and completed

the program on April 22, 2011 .

10. Respondent also submitted, with her

Application, a FCNH Certificate of

Completion of twelve hours of Therapeutic

Massage Training Program (Transfer of

Licensure) dated April 22, 2011.

11. Also submitted with RespondentÓs

Application was a FCNH Certificate of

Completion of two hours of Prevention of

Medical Errors dated April 22, 2011.

12. On or about July 19, 2012, the Vice

President of Compliance and Institutional

Effectiveness for FCNH (ÐV.P.Ñ) certified

that the FCNH transcript Respondent

submitted with her Application is

fraudulent.

13. On or about July 19, 2012, the V.P.

also certified that Respondent did not

compl ete the courses identified in the

certificates Respondent submitted with her

application.

14. Having not completed courses at, or

obtained certificates of completion from, a

Florida Board certified school, as required

by Section 480.041(1)(b), Florida Statutes

(2010), Respondent is not qualified t o be

licensed, or to practice, as a massage

therapist in the State of Florida.

4 2 . The Department proved by clear and convincing evidence

that an application for licensure was submitted in RespondentÓs

name, and that additional documents in support of t he application

were also submitted at a later date. However, the Department did

not prove who submitted either the application or the supporting

documentation.

43. The more persuasive testimony at hearing also indicated

that Respondent completed a 600 - hour course at Healing Hands, a

COMPTA - accredited institution; that there was no indication that

the majority of those hours would not have been appropriate for

transfer to a board - approved school ; and that Respondent passed a

national certification test required for licensure. Although she

had not taken the appropriate laws and rules or prevention of

medical errors courses at the time the ap plication was submitted,

she has since done so.

44. Count One of the Amended Administrative Complaint

charges Res pondent with violating section 456.072(1)(h), Florida

Statutes, which provides:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(h) Attempting to obtain, obtaining, or

renewing a license to practice a profession

by bribery, by fraudulent misrepresentation,

or through error of the department or the

board.

Similarly, Count Two charges a violation of section 456.072(1)(w),

by Ð[f]ailing 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 representations on a profile, credentialing, or initia l

or renewal licensure application.Ñ

45. Fraud requires a false statement with respect to any

material fact, made with knowledge of its falsity and with the

intent to induce anotherÓs reliance, and consequent injury to the

person acting in reliance of t he false representation. Cohen v.

Kravit Estate Buyers , 843 So. 2d 989, 991 (Fla. 4 th DCA 2003).

Respondent did not fill out or see the application that was

submitted to the Board on her behalf. She did not authorize

anyone to submit fraudulent documents in support of her

application. In short, there is no competent, credible evidence

to indicate that Respondent intended to defraud anyone.

Respondent speaks little English and has been in the United

States for a short period of time. She had re ceived a license

from another state based upon her Healing Hands transcript and

her passing score for the national examination. It is plausible

that she thought the same was required for Florida, and the

Department did not prove otherwise.

46 . Petitione r also argues that section 456.072(1)(h)

authorizes discipline for obtaining a license through error of

the Board, with no requirement of intent or knowledge on

RespondentÓs part. First, there is not clear and convincing

evidence that the Board staff comm itted an y error. The Board was

presented with an application which, on its face, met the

statutory and rule requirements for licensure. Second, even

assuming that an error was proven, there has to be some culpable

act on the part of Respondent. Penal st atutes are required to be

strictly construed in favor of the licensee. Camejo v. DepÓt of

Bus. & ProfÓl Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002);

Elmariah v. DepÓt of ProfÓl Reg. , 574 So 2d 164 (Fla. 1 st DCA

1990) . See also Griffis v. Fish & Wildlife Conserv. CommÓn ,

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

must never be extended by co n struction).

47 . Subsection 456.072(1) provides that Ðthe following

actsÑ shall constitute grounds for discipline as specified in

subsect ion (2). Subsection (2), in turn, provides that Ð[w]hen

the board . . . finds any person guilty of the grounds set forth

in subsection (1) . . . .Ñ Taken together, the only reasonable

interpretation of section 456.072(1)(h) is that it requires, at a

mini mum, some knowledge o f an error by the Board and some

culpability by Respondent. Pic NÓ Save Cent. Fla., Inc. v. DepÓt

of Bus. & ProfÓl Reg. , 601 So. 2d 245, 250 (Fla. 1 st DCA 1992)

(ÐoneÓs license to engage in an occupation is not to be taken

away except for misconduct personal to the licensee.Ñ).

48 . Moreover, as noted by Judge Van Laningham in DepÓt of

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

3825PL ( Fla. DOAH Apr. 9, 2013; Fla. Bd. of Massage Ther. Aug.

21, 2013),

t he DepartmentÓs Ðunilateral errorÑ 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 requi re. An agency

shall not deny a license for failure to

correct an error or omission or to supply

additional information unless the agency

timely notified the applicant within this

30 - day period.

Given that the law clearly 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

lic ense pursuant to section 456.072(1)(h) based solely on a

purported deficiency in the licenseeÓ s application not only would

erode the protection that section 120.60 affords license

applicants , but also would un dermine the integrity of licens es in

general .

49 . With respect to Count Two, the Department simply alleged

a violation by Ðobtaining her license to practice massage therapy

in the State of Florida through error of the Department of Health

or through fraudulent misrepresentation by submitting a fals e

transcript and fraudulent Certificates of Completion with her

application.Ñ This is the same conduct charged and not proven

with respect to Count One. Both Counts should be dismissed.

50 . Count Three charges Respondent with violating section

480.041(1)(b), Ðbecause she f a iled to complete a course of study

at a Florida Board - approved massage school and failed to complete

an apprenticeship program that meets the standards adopted by the

Florida Board.Ñ

51 . Section 480.041, Florida Statutes ( 2010), provides:

480.041 Massage therapists; qualifications;

licensure; endorsement. Ï

(1) Any person is qualified for licensure

as a massage therapist under this act who:

(a) Is at least 18 years of age or has

received a high school diploma or graduate

equivalency diploma;

(b) Has completed a course of study at a

board - approved massage school or has

completed an apprenticeship program that

meets standards adopted by the board; and

(c) Has received a passing grade on an

examination administered by the department.

(2) Every person desiring to be examined

for licensure as a massage therapist shall

apply to the department in writing upon

forms prepared and furnished by the

department. Such applicants shall be

subject to the provisions of s. 480.046 (1) .

Applicants may take an examination

administered by the department only upon

meeting the requirements of this section as

determined by the board.

(3) Upon an applicantÓs passing the

examination and paying the initial licensure

fee, the department shall iss ue to the

applicant a license, valid until the next

scheduled renewal date, to practice massage.

(4) The board shall adopt rules:

(a) Establishing a minimum training program

for apprentices.

(b) Providing for educational standards,

examination, and cer tification for the

practice of colonic irrigation, as defined

in s. 480.033 (6), by massage therapists.

(c) Specifying licensing procedures for

practitioners desiring to be licensed in

this state who hold an active license and

have practiced in any other s tate,

territory, or jurisdiction of the United

States or any foreign national jurisdiction

which has licensing standards substantially

similar to, equivalent to, or more stringent

than the standards of this state.

52 . As a preliminary matter, the undersigned agrees with

Judge Van LaninghamÓs conclusion in Diamond that section

480.041(1) does not by its terms require compliant behavior,

either by prescribing minimum standards or forbidding behavior

identified as wrongful . The statute is a definitional provision

describing the qualifications for licensure . One cannot commit a

violation of a definition.

53 . The application filed on RespondentÓs behalf , but not

reviewed or approved by her, did not indicate that she was

licensed in another jurisdiction. The evidence presented at

hearing established that she was, and is, licensed in New Jersey.

The Amended Administrative Complaint does not acknowledge the

avenue for licensure by endorsement.

5 4 . There is no dispute Res pondent did not complete an

apprenticeship program. The evidence also established th at she

has a transcript from a b oard - approved school, FCNH, although

there are questions about its accuracy. Nonetheless, the

Department did not allege that there was any deficiency in the

hours taken at Healing Hands and submitted for transfer to FCNH,

and there was no evidence that the majority of hours reflected in

the Healing Hands transcript would not be acceptable. 1/ The

documents submitted on May 9, 2011, taken tog ether, signify

satisfactory completion of the requirements of an educational or

career program of study or training or course of study, and

constitute a ÐdiplomaÑ as defined in section 1005.02(8), Florida

Statutes.

5 5 . Even assuming that Respondent is no t qualified for

licensure by examination because, as she readily admitted, she did

not attend FCNH, section 480.041(4)(c) provides a method for

licensure for those massage therapists already licensed in another

state. The Board has adopted Florida Adminis trative Code Rule

64B7 - 25.004 , which provides:

Endorsements.

(1) The Department shall issue a license to

a person who:

(a) Pays to the Department the initial

licensure fee set forth in subsection 64B7 -

27.008(2), F.A.C., and

(b) Submits a completed appli cation on form

DH - MQA 111 5, ÐApplication for Licensure,Ñ. .

.

(c) Is curr ently licensed and has practiced

massage under the laws of another state, and

was required, in order to be so licensed to

meet standards of education or

apprenticeship training substantially

similar to, equivalent to, or more stringent

than those required for licensure by Florida

law and these rules; and

(d) Demonstrates that his out - of - state

license was issued upon the satisfactory

completion of an examination comparable to

the examination approved by the Board; and

(e) Has no outstanding or unresolved

complaint filed against him or he r in the

jurisdiction of licensure.

(f) Completes a current curriculum course

from a Board approved school covering the

Florida statutes and rules related to

massage therapy.

(g) Completes the HIV/AIDS course

requirement in Rule 64B7 - 25.0012, F.A.C.

(h) Completes a course relating to the

prevention of medical errors as required by

Section 456.013(7), F.S.

5 6 . Like Florida, New Jersey requires a course of study

comprising 500 hours. RespondentÓs course at Healing Hands was a

600 - hour course. It is un clear whether Respondent was required

to take a national examination for licensure in New Jersey, but

she in fact took and passed such an examination, the results of

which were submitted to Florida. Respondent has completed the

HIV/AIDs course, the preven tion of medical records course, and

the Florida laws and rules course required for licensure. She

meets the qualifications for licensure by endorsement.

5 7 . The Department did not establish the violation alleged

in Count Three by clear and convincing evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Final Order dismissing the Administrative Complaint in its

entirety.

DONE AND ENTERED this 9th day of Sept ember , 2013 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 9th day of September , 2013.

ENDNOTE

1/ Petitioner did not allege any problems with RespondentÓs

education at Healing Hands, but did question Respondent about her

education there in an attempt to challenge her credibility. Her

answers were not always consistent. However, in the

undersignedÓs view, the d iscrepancies were not a result of any

attempt by Respondent to be dishonest, but were a result of her

unfamiliarity with both the language and the licensure and

disciplinary processes. Her demeanor at hearing reflected a

confused and frightened young woma n caught in the middle of a

controversy created by the actions of others.

COPIES FURNISHED:

George F. Indest, III, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

Douglas Elias Ede, Esquire

Hamilton, Miller and Birthis el

150 Southeast 2nd Avenue

Miami, Florida 33157

Louise St. Laurent, Esquire

Robert Shaffer Claridge, Esquire

Jennifer Friedberg - Fortenberry, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

Lance O. Leider, Esquir e

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

Anthony Jusevitch, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

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.